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HomeMy WebLinkAboutagenda.council.special.20190204 CITY COUNCIL AGENDA SPECIAL MEETING CITY COUNCIL CHAMBERS February 04, 2019 4:00 PM For the purpose of: I. Resolution #19, Series of 2019 - Contract with Sara Ott - City Manager for an interim period of time COUNCIL’S ADOPTED GUIDELINES · Make Decisions Based on 30 Year Vision · Tone and Tenor Matter · Remember Where We’re Living and Why We’re Here City Attorney’s Office MEMORANDUM TO: MAYOR and COUNCIL MEMBERS FROM: JAMES R. TRUE DATE: January 31, 2019 RE: Interim Employment Agreement for Sara Ott ══════════════════════════════════════════════════════════════════ REQUEST OF COUNCIL: Resolution No. 19 (Series of 2019) is presented to Council for consideration of the adoption of an Interim Employment Agreement for Sara Ott. This action follows the adoption on January 28, 2019 of the Separation, Release and Waiver Agreement for Steve Barwick. DISCUSSION: At a public meeting held on January 14, 2019, following the resignation of Steve Barwick, Council inquired of Assistant City Manager Sara Ott whether she was interested in stepping into the role of City Manager for an interim period, while the City commenced a search for a permanent replacement in that position. Upon her indication that she would be interested in accepting such position on appropriate terms, Council directed staff to review any proposal of Ms. Ott and present such proposal to Council. Following discussions with City Council and counsel for Ms. Ott, the proposed contract was completed, subject of course to formal approval by Council. The proposed Interim Employment Agreement is attached to this packet. P1 I. RESOLUTION # 19 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN INTERIM EMPLOYMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND SARA OTT TO SERVE AS CITY MANAGER FOR AN INTERIM PERIOD AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Interim Employment Agreement between the City of Aspen and Sara Ott, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Interim Employment Agreement between the City of Aspen and Sara Ott, a copy of which is attached hereto and incorporated herein and does hereby authorize the Mayor to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 4th day of February 2019. _______________________ Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held February 4, 2019. ________________________ Linda Manning, City Clerk P2 I. 1 INTERIM EMPLOYMENT AGREEMENT for City Manager This Interim Employment Agreement for City Manager (Agreement) is entered into on this __ day of February, 2019, by and between the CITY OF ASPEN (City), a municipal corporation, and SARA G. OTT (Employee). WHEREAS, Employee is currently employed by the City as the City’s Assistant City Manager (ACM); WHEREAS, the City desires to employ Employee to act as and perform the duties of the City Manager during the interim period set forth herein (hereinafter referred to as “Interim City Manager”; and, WHEREAS, Employee is agreeable to act as and perform the duties of the Interim City Manager under the terms and conditions of this Agreement, which specifically include the ability to return to the performance of her duties as the ACM earning the same salary and enjoying the same benefits she would have earned and enjoyed, respectively, had she remained employed as the ACM during the term of this Agreement. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. TERM. The term of this Agreement shall be from date of approval of City Council by Resolution adopted at a regular or special meeti ng through midnight on September 1, 2019. The parties acknowledge that while the term of this Agreement does not extend beyond one fiscal year, the obligations under Paragraphs 8 and 9 may extend beyond one fiscal year, which makes this Agreement a multiple fiscal year financial obligation for which the City would be obligated to irrevocably pledge present cash reserves. Accordingly, upon approval of this Agreement by the City, the City shall make an irrevocable pledge of City cash reserves in an amount sufficient to fund the City’s obligations under Paragraphs 8 and 9 of this Agreement. Unless sooner terminated pursuant to the provisions set forth in this Agreement, Employee’s employment as the Interim City Manager shall terminate on the Expiration Date. However, the parties may extend the term of this Agreement if, prior to the Expiration Date, the parties agree in writing to extend the Agreement. 2. DUTIES. The Employee shall perform the usual and necessary duties and tasks of the City Manager for a home rule municipality, subject to the direction and control of the City Council. Without limiting the generality of the preceding, such duties and tasks shall include the following matters: 2.1 Duties. The Employee shall have charge of the administration of the City under the direction of the City Council and shall administer the City according to Aspen Municipal Code, Aspen Home Rule Charter, and other City policies, requirements, directions, regulations and guidelines. The Employee shall comply with the requirements and directions of the City Council given in its corporate capacity, whether by consensus or majority vote. The Employee shall be the chief executive officer of the City; shall P3 I. 2 hire, fire, assign and direct the workforce of the City under her supervision; shall organize, reorganize and arrange the administrative and supervisory staff, as best serves the needs of the City subject to the approval of the City Council; shall timely suggest policies, procedures, and regulations deemed necessary for best operations of the City; and shall, in general, perform all duties incident to the office of City Manager and other duties as may be prescribed by the City Council. 2.2 Services. This Agreement is intended by the parties to be a full-time agreement and the Employee shall devote her attention to the functions of Interim City Manager at all times during the term of this Agreement. It is not contemplated that the Employee will ordinarily perform services on weekends or legal holidays. However, it is intended that the Employee shall remain available on such days to meet the responsibilities of Interim City Manager as are necessary. Further, the Employee shall keep the Mayor of the City Council advised as to how she can be reached. 2.3 Relationship to City Council. The City Council shall promptly refer all criticisms, complaints, and suggestions that come to its attention to the Employee for study and recommendation unless the City Council determines that the welfare of the City or its staff requires action inconsistent with this provision. The Employee shall have the obligation, unless excused or on leave or vacation, to attend all City Council meetings and provide administrative recommendations on each item of business considered by each of these groups. The Employee, or the Employee’s designee, shall be present at all meetings of the City Council, except at such times when the City Council is meeting in executive session for the purpose of evaluating the Employee’s performance. 2.4 Outside Activities. The Employee shall devote her time, attention and energy to the business of the City. Participation in outside activities by the Employee shall be subject to notification to the City Council where the time requirements for such activities are anticipated to be substantial, for example, conferences which require the Employee’s absence from the City for two or more regular business days. 2.5 Incorporation of Laws. This Agreement is subject to and includes all applicable federal and Colorado laws and regulations and, to the extent consistent with the term, salary, fringe benefits, and termination provisions herein, all duly-adopted policies, procedures and regulations of the City which are in effect or which may become in effect during the term of this Agreement; and the City Council specifically reserves the right to change such policies, procedures and regulations at any time without prior notice; provided, however, such changes shall not affect the term, salary, or termination provisions of the Agreement during its term. 3. COMPENSATION. As compensation for her services, the City shall pay the Employee an annual base salary of $195,255 with a commencement date for such annual base salary retroactive to January 8, 2019. Employee’s annual base salary shall be increased by the same percentage and at the same time any discretionary across-the-board increases are granted to the City’s remaining employees. Any adjustments in such compensation or contribution and their effective dates shall be included in a written addendum to the Agreement signed by both parties. P4 I. 3 Deductions authorized by law, City Council policy, or at the direction of the Employee may be made from the monthly installments due the Employee pursuant to this subsection. 4. BENEFITS. 4.1 General Benefits. Except as may be otherwise provided herein, Employee shall be provided the compensation and benefits offered to all other employees as provided for in the City’s Personnel Policies and Benefit Programs, including but not limited to: the Goals and Outcome Measures Program and City Employee Housing Program. As used herein, benefits include but are not necessarily limited to, personal time off, extended sick leave, holidays, retirement, health insurance, dental insurance, disability insurance, and life insurance. Employee shall remain eligible to accrue and use credit time for any hours worked overtime because Employee is exempt from overtime under the Federal Fair Labor Standards Act. 4.2 Technology. Employee shall be provided a laptop, remote network access, and smart phone at the City’s expense for the performance of work-related tasks. 4.3 Expense Reimbursement. The City recognizes that certain general expenses, dues, subscriptions, travel and subsistence expenses are reasonably incurred by the Employee in the performance of job-related activities, functions, meetings, professional development, and professional conferences through organization as the International City/County Management Association, Colorado Municipal League, Colorado City/County Management Association, and the Colorado Association of Ski Towns. The City agrees to budget and pay for or reimburse the Employee for these expenses; provided, however, that the amount paid under this Paragraph 4.4 shall be limited by the amount the Council budgets for such expenditures, which shall be in a minimum amount of five thousand dollars ($5,000). Further, the City agrees to reimburse Employee for expenses related to educational courses, short courses, executive coaching, seminars and institutes that will benefit the City and improve Employee’s professional abilities; provided, that any such reimbursements may not exceed the amount the Council budgets for such expenditures, which shall be in a minimum amount of two thousand five hundred dollars ($2,500). 4.4 Memberships. City shall reimburse Employee for membership and participation in any community or civic organizations in which the City requires or encourages Employee to participate; provided, that any such reimbursements may not exceed the amount the Council budgets for such expenditures, but shall never be less than the actual costs of membership and participation in any organization in which the City requires Employee to participate. The City shall budget a minimum of two thousand five hundred dollars ($2,500) for such memberships and participation in the community and civic organizations. 4.5 Cash Out of Accrued Leave. Employee shall retain the rights she enjoyed as the ACM under the City’s Compensation Program in terms of the timing of her right to “cash out” accrued but unused leaves. The hourly rate upon which the amount of said “cash out” is to be calculated at the rate of pay at the time the accrued but unused leave was earned as Interim City Manager. P5 I. 4 4.6 Bonding. The City shall bear the full cost of any fidelity or other bond required of Employee as Interim City Manager under any law or ordinance. 5. EVALUATIONS. The City Council and Employee shall define such goals and performance objectives which they determine necessary for the proper operation of the City or the attainment of the City Council’s policy objectives, and the City Council and Employee shall further establish a relative priority among those various goals and objectives to be reduced to writing. These objectives shall be obtainable generally within the time limits as specified and within the annual operating budgets and appropriations provided. The achievement of these goals and performance objectives shall be considered part of Employee’s performance duties. No later than March 15, 2019, the City Council shall evaluate the performance of the Employee and establish goals and objectives for her performance hereunder. No later than May 31, 2019, the City Council shall again evaluate the performance of the Employee. Employee shall have the option to have such performance evaluations in open public meeting or in executive session. 6. CONSULTATION. The Employee, with the prior consent of the City Council and at no cost to the City, may undertake consultation work, speaking engagements, writing and lecturing for honoraria and expenses provided that such activities do not, in the judgment of the City Council (which approval will not be unreasonably withheld), interfere with the Employee’s performance of her duties under this Agreement. 7. DISABILITY. Should the Employee be unable to perform any or all of her duties by reason of illness, accident, or other causes beyond her control and such disability exists for a period of more than one month, the City may, in the discretion of the City Council, make a proportionate deduction from the Employee’s salary, and if such disability continues for more than three months or is permanent or of such nature as, in the judgment of the City Council and subject to applicable state and federal laws including, without limitation, the Americans with Disabilities Act, the Family Medical Leave Act, and the Colorado Family Care Act, to make the performance of the essential functions of her position with reasonable accommodation impossible, the City may, in the discretion of the City Council, terminate this Agreement. 8. TERMINATION. Notwithstanding the provisions of Paragraph 1 of this Agreement, this Agreement may be terminated by: 8.1 Mutual agreement of the parties. 8.2 Disability of the Employee pursuant to Paragraph 7. 8.3 Discharge for good and just cause relating to the Employee’s duties. The term “good and just cause” shall include, but not be limited to, a material breach of the terms and conditions of this Agreement, unsatisfactory performance of duties such as malfeasance, misfeasance, or nonfeasance, and other good and just cause. However, the City Council shall not arbitrarily and capriciously dismiss the Employee. In the event the City Council believes that it has good and just cause for dismissal as defined herein, it shall give the Employee an enumeration of such cause in writing; a summary of the evidence, including the names of witnesses and copies of any documents supporting the alleged cause; and the opportunity for a hearing with respect to such good and just cause before the City Council or, at the City Council’s option, before an arbitrator pursuant to P6 I. 5 the provisions of the paragraph below captioned Alternate Dispute Resolution. The hearing may be in open session at Employee’s option. City shall pay the discharge proceedings in full with the exception of if the Employee chooses, she may, at her sole expense, be accompanied by legal counsel at any hearing, and shall pay her own attorney’s fees. 8.4 Unilateral termination without cause by the City or a request from the City Council for Employee’s resignation of employment as Interim City Manager. In the event that Employee is terminated pursuant to Section 8.4, Employee shall be entitled to severance in an amount equivalent to ten (10) months’ salary at the Interim City Manager pay rate. The payment shall be made within twenty (20) days of termination. If this Agreement is extended beyond September 1, 2019, then the amount of severance paid to Employee upon the exercise of this Paragraph 8.4 shall be in the amount of twelve (12) months’ salary. 8.5 Death of the Employee. 8.6 Unilateral termination by the Employee by providing thirty (30) days’ written notice. 8.7 Employment by the City of a new City Manager, either on a permanent or an interim basis, by providing ten (10) days’ written notice. 9. RETURN TO ASSISTANT CITY MANAGER POSITION. In the event that this Agreement is terminated for any one of the events set forth and described in paragraphs 8.1, 8.4, 8.6, or 8.7 above, Employee shall have the right, but not the obligation, to return to the position of ACM. 9.1 Upon return to her ACM position, Employee shall enjoy those benefits set forth in and be subject to the terms and conditions of the City’s Personnel Policies and Benefits Program. 9.2 Employee’s salary and benefits shall be adjusted to match that which would have been in effect at the time she is so reinstated had she not entered into this Agreement and had, during the term of this Agreement, retained and performed the duties of her position as ACM. Any benefits or rights that she enjoyed solely as the Interim City Manager shall terminate upon her resumption of her ACM position. This shall include a four percent (4%) salary increase as the ACM on her service anniversary date of May 1, 2019 as a result of any scheduled performance evaluation, regardless of whether the evaluation was actually performed. 9.3 The position of Employee as ACM is at will. However, if Employee returned to her ACM position pursuant to Paragraphs 8.1, 8.6, or 8.7 above and is subsequently terminated from her ACM position for any reason within six (6) months of returning to such position, the City shall pay Employee six (6) months’ salary at the rate of Employee’s ACM salary then in effect. 9.4 During the term of this Agreement, both vacated ACM positions shall be P7 I. 6 considered temporary positions, and, in the event that Employee determines that said position should be filled to appropriately staff the administrative leadership roles of the City, such positions shall be deemed “interim” and it shall be communicated to any appointee that appointment as interim ACM or other similar title or role may be temporary. Such positions shall have terms lasting no longer than September 1, 2019, unless extended by Council, and shall be terminable at will. This provision shall be communicated in writing and is non- negotiable. The appointee(s), if any, appointed to fill said temporary position(s), shall additionally be informed in writing that the return of Employee to the position as ACM pursuant to this agreement may displace the appointee from the position as interim City Manager. 10. INTELLECTUAL PROPERTY. Unless otherwise agreed upon in an instrument in writing, all intellectual property created by the Employee in her employment capacity shall be owned by the City. Intellectual property, regardless of whether there are any protections by patent, copyright, trademark, trade secret, or other law, includes, but is not limited to, the following: inventions, discoveries, trade secrets, trade and service marks, writings, software, literary works, programs, and spreadsheets. The Employee shall timely provide written instructions regarding the use of intellectual property in a manner so that other City employees can easily and effectively utilize such intellectual property. Notwithstanding the foregoing, the Employee may keep copies of any speeches, presentations or other published writings that she gave or authored during the term of the Agreement and publicly use or refer to them for non- commercial purposes. 11. PROFESSIONAL LIABILITY. 11.1 Hold Harmless. The City agrees that, to the extent permitted by law, it shall defend, hold harmless and indemnify the Employee from any and all demands, claims, suits, actions, and legal proceedings at law or in equity (specifically excluding, however, any demand, claims, suits, actions, or legal proceedings brought against the Employee by or on behalf of the City, and any criminal proceedings brought against the Employee), in her individual capacity or in her official capacity as agent and employee of the City, provided the incident giving rise to the claim arose while the Employee was acting in good faith and within the scope of her employment and not willfully or wantonly. 11.2 Provision of a Defense. The obligations of the City pursuant to this Paragraph 11 shall be conditioned on prompt notification to the City by the Employee of any threatened or reasonably contemplated claim; full cooperation by the Employee with the City and its legal counsel in defending the claim; and the Employee not compromising, settling, negotiating or otherwise similarly dealing with the claim without the express consent of the City Council. 11.3 Reimbursement. In the event the City has provided a defense pursuant to this paragraph, and a court or other decision making body having jurisdiction over the matter determines that the act or omission of the Employee did not occur during the performance of her duties hereunder and within the scope of her employment or that the act or omission was willful or wanton or not in good faith, the Employee shall reimburse the City for all costs of such defense and indemnity actually incurred and paid on her behalf P8 I. 7 by the City. 11.4 No Individual Liability. In no event shall individual City Council members be individually or collectively liable or responsible to the Employee for defending or indemnifying the Employee against such demands, claims, suits, actions, and legal proceedings. 12. REIMBURSEMENT OF ATTORNEY’S FEES. The City shall reimburse the Employee up to a maximum of two thousand five hundred dollars ($2,500) to reimbursement her for attorney’s fees expended in the negotiations of this Agreement. Employee shall provide the City will appropriate documentation of such attorney’s fee. This is a one-time payment. 13. ASSIGNMENT. This Agreement shall not be assigned or delegated except with the prior written consent of the parties. 14. NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified or registered mail, postage and fees prepaid, addressed to the party to whom such notice is intended to be given at the address set forth on the signature page below, or at such other address as has been previously furnished in writing to the other party or parties. Such notice shall be deemed to have been given when deposited in the U.S. Mail. To City: Mayor & City Council, City of Aspen 130 South Galena St. Aspen, CO 81611 With copy to: Jim True, City Attorney 130 South Galena St. Aspen, CO 81611 Phone (970) 920-5108 Email address: jim.true@cityofaspen.com To Employee: Sara G. Ott 22 W Water Place Aspen, CO 81611 Email address: sara.ott@cityofaspen.com Phone: (970)920-5083 With copy to: Adele Reester, Esq. Lyons Gaddis 515 Kimbark Street Longmont, CO 80504 Email address: areester@lyonsgaddis.com Phone: (303)776-9900 Any party may change her/its address for purposes of this section by giving the other party P9 I. 8 written notice of the new address. 15. PARAGRAPH CAPTIONS. The captions of the paragraphs are set forth only for convenience and reference, and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 16. ADDITIONAL DOCUMENTS OR ACTION. The parties agree to execute any additional documents and to take any additional action necessary to carry out this Agreement. 17. INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement between the parties and there are no oral or collateral agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the parties. Each party waives her/its future right to claim, contend, or assert that this Agreement was modified, changed, canceled, superseded, or changed by any oral agreement, course of conduct, waiver, or estoppel. 18. ALTERNATE DISPUTE RESOLUTION. Except as otherwise provided in the paragraph above captioned Termination, in the event of any dispute or claim arising under or related to this Agreement, the parties shall use their best efforts to settle such dispute or claim through good faith negotiations with each other. If such dispute or claim is not settled through negotiations within 30 days after the earliest date on which one party notifies the other party in writing of its desire to attempt to resolve such dispute or claim through negotiations, then the parties agree to attempt in good faith to settle such dispute or claim by mediation conducted under the auspices of the Judicial Arbiter Group (JAG) of Denver, Colorado or, if JAG is no longer in existence, or if the parties agree otherwise, then under the auspices of a recognized established mediation service within the State of Colorado. Such mediation shall be conducted within 60 days following either party’s written request therefor. If such dispute or claim is not settled through mediation, then either party may initiate a civil action in the District Court for Pitkin County. 19. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Colorado and by all duly adopted policies, rules, and regulations of the City Council now in effect or hereafter adopted by the City Council. 20. BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the parties, and their respective legal representatives, successors, and assigns; provided, however, that nothing contained in this paragraph shall be construed to permit the assignment of this Agreement. 21. WAIVER. The waiver of any breach of any provision hereunder by either party to this Agreement shall not be deemed to be a waiver of any other provision or subsequent breach hereunder, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party marking the waiver. 22. CONSTRUCTION OF TERMS. The language of all parts of this Agreement shall be construed according to their plain meaning and shall not be construed for or against either party. P10 I. 9 Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendment or exhibits hereto. 23. SEVERABILITY. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be unenforceable, void, or invalid, in whole or in part, for any reason, the remainder of this Agreement shall remain in full force and effect. In the event of such entire or partial invalidity, the parties hereto agree to enter into supplemental or other agreements to effectuate the intent of the parties and the purpose of this Agreement. Sara Ott CITY OF ASPEN By Steven Skadron Mayor, City of Aspen ATTEST: Secretary APPROVED AS TO FORM: City Attorney P11 I.