RESOLUTION NO. **-2017

Transcription

1 RESOLUTION NO. **-2017 A RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO AN AGREEMENT WITH APPOINTED CITY MANAGER TYE R. SMITH ON BEHALF OF THE CITY OF FOREST PARK, OHIO WHEREAS, Section 2.01 of the Forest Park Charter provides that Forest Park shall have home rule and all powers of local self-government granted by the Constitution of the State of Ohio and shall exercise under this Charter all such powers and all other powers, general or special, governmental or proprietary, which now or hereafter lawfully may be possessed or assumed by municipalities in the State of Ohio, and WHEREAS, on June 5, 2017, Forest Park City Council appointed Tye R. Smith as City Manager effective January 1, 2018, and WHEREAS, WHEREAS, WHEREAS, it is the desire of the City Council as the legislative and governing board of the City of Forest Park, Ohio to set forth its benefits, establish certain conditions of employment and to set working conditions of said Tye R. Smith, and it is the desire of the City of Forest Park to (1) secure and retain the services of Tye R. Smith and to provide inducement for him to remain in such employment, (2) to make possible full work productivity by assuring good moral and peace of mind with respect to future security, (3) to provide reasonable assurances in the stability of its workforce, and (4) to provide a just means to terminating said services if necessary, and Tye R. Smith desires to accept employment as City Manager of the City of Forest Park. NOW, THEREFORE, Be It Resolved by the Council of the City of Forest Park, Ohio. SECTION 1. That the Mayor of the City of Forest Park be and is hereby authorized and directed to execute an Employment Agreement with Tye R. Smith for his services as City Manager for the City of Forest Park, a copy of which is attached hereto as Exhibit A, incorporated by reference thereto, and made a part of this resolution.

2 SECTION 2. This resolution shall be in force and take effect on its passage. Passed this day of, MAYOR CLERK OF COUNCIL APPROVED AS TO FORM: LAW DIRECTOR

3 EXHIBIT A MANAGER EMPLOYMENT AGREEMENT This agreement, made and entered into this day of, 2017, effective the first (1 st ) day of January, 2018, by and between the City of Forest Park, Ohio, an Ohio municipal corporation, hereinafter referred to as City, and Tye R. Smith, hereinafter referred to as Manager, both whom understand and agree as follows: WHEREAS, the City desires to employ the services of Tye R. Smith as City Manager of the City of Forest Park as provided by Article IV of the Charter of the City of Forest Park, Ohio; and WHEREAS, it is the desire of the City Council, hereinafter called Council, as the legislative and governing board of the City of Forest Park, Ohio, to set forth certain benefits, establish certain conditions of employment and to set working conditions of said Manager; and WHEREAS, it is the desire of Council (1) to secure and retain the services of Manager and to provide inducement for him to remain in such employment, (2) to make possible full work productivity by assuring Manager s morale and peace of mind with respect to future security, (3) to provide reasonable assurances in the stability of its workforce, (4) to act as a deterrent against malfeasance or dishonesty for personal gain on the part of the Manager, and (5) to provide a just means for terminating Manager s services at such time as he may be unable fully to discharge his duties or when City may desire to otherwise terminate his employment; and Ohio; WHEREAS, Manager desires to accept employment as City Manager of the City of Forest Park, NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: Section 1. Duties and Responsibilities City hereby agrees to employ Tye R. Smith as City Manager of said City to perform the functions and duties specified in Article IV and elsewhere in the City Charter and by ordinances adopted pursuant thereto, and to perform such other legally permissible and proper duties and functions as the Council shall from time to time assign. Section 2. Term A. The term of this Agreement is from January 1, 2018, provided both parties have executed this Agreement and the Council has approved this Agreement and shall continue through December 31, 2020.

4 Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Council to terminate the services of Manager at any time upon two-thirds vote of all members of Council, in accordance with Section 4.03 of the Forest Park City Charter. B. This Agreement shall continue until such time as it is terminated either by Council, pursuant to the authority granted to Council by the Charter provisions or by voluntary resignation by Manager at his option by providing written notice to the Mayor of the City of Forest Park at least thirty (30) days in advance of the date Manager intends to resign such employment. Council, in its sole discretion may accelerate Manager s voluntary resignation date upon receipt of such notice, and if such voluntary resignation date is accelerated at Council s option, the City agrees to continue to pay Manager his base salary, and to continue any benefits of employment through the accelerated period which advances the voluntary resignation date. Such payment of salary and benefits shall be consistent with the same payroll and employment benefits then in effect for City employees and shall be subject to all legal deductions for taxes or other benefit contributions. It is understood and agreed by and between the parties that Council s decision to accelerate Manager s voluntary resignation date upon Manager s notice of voluntary resignation shall not be construed as City s decision to terminate Manager entitling him to compensation on termination as provided herein. Even with the decision to accelerate the voluntary resignation date, such resignation shall be considered as Manager s voluntary resignation. C. Notwithstanding the above, it is understood and agreed by and between the parties that Manager s employment with the City is an at will relationship and nothing shall bind the City to continue Manager s employment with or without cause, so long as termination is consistent with the law and the rights and responsibilities reserved to Council under the terms of the City Charter and its ordinances. D. In the event written notice is not given by either party to this Agreement to the other party six (6) months prior to the Scheduled Termination Date, this Agreement shall be extended on the same term and conditions as herein provided, with an initial renewal period of two years. Said Agreement shall continue thereafter for one-year periods unless either party hereto gives six (6) months written notice to the other party that the party does not wish to extend this Agreement for an additional one-year term. E. Notice of non-renewal or termination by the City shall be in writing delivered by certified mail, return receipt requested, or personal delivery. Section 3. Termination and Severance Compensation A. Both City and Manager hereby acknowledge and agree that employment is for a definite period in accordance with Section 4.01 of the Forest Park City Charter. Any dates or terms of the Agreement shall not be construed as a guarantee to employment but merely for determining the terms and conditions upon which severance arrangements

5 shall be calculated and provided. The foregoing notwithstanding, nothing in this Agreement shall be construed in such a manner as to relieve the Council with compliance with Section 4.03 of the Forest Park City Charter which obligates the Council to give a minimum of sixty (60) days written notice of any intent of removal of Manager. B. In the event Manager is terminated without cause by the Council during such time that Manager is willing and able to perform the duties of Manager then in that event the City agrees to pay manager a lump sum cash payment in the amount equal to twelve (12) months then current salary and the current cost of twelve (12) months of Manager s family health and dental benefits coverage, life insurance and deferred compensation, along with payment for all then accrued vacation, sick and personal leave. The Manager, at his discretion may elect to take his severance as a lump sum payment or paid out over time, until the full amount of the severance has been fully paid. C. In the event Manager is terminated for cause that results from gross illegal activity that includes, but is not limited to, any serious violation or any duty or responsibility as established by the Charter or Ordinances of the City of Forest Park, Ohio, misfeasance or malfeasance, any illegal act involving personal gain to him or any conviction of a felony offense related or unrelated to a City s responsibilities then, in that event, City shall have no obligation to pay any severance pay otherwise designated by this Agreement. D. In the event City at any time during the term of this Agreement reduces the salary or other financial benefits of Manager in a greater percentage than an applicable acrossthe-board reduction for all employees of City, or in the event the City refuses, following written notice, to comply with any other provisions benefiting Manager herein, or Manager resigns following a suggestion, whether formal or informal, by the Council that he resigns without there being just cause for such resignation, or whether termination without cause effectively results from any vote or change in the Forest Park City Charter, then, in that event, Manager may, at his option, be deemed to be terminated at the date of such reduction, suggestion, vote, change in the Forest Park City Charter or such refusal to comply within the meaning and context of the herein severance pay provisions. E. If Manager voluntarily terminates his employment with the City as provided within this Agreement, whether such separation from employment is a resignation or retirement, then no severance payment shall be due and payable to Manager, except as provided in Section 2 (B). F. In the event Manager is to be removed from his appointed office, the provisions of Forest Park City Charter 4.03 shall apply. The decision of Council is final. Any dispute concerning the determination or entitlement to severance compensation in accordance

6 with the Agreement or whether the severance is with or without cause shall be resolved by binding arbitration as set forth in Section 18, Subsection H of this Agreement. Section 4. Salary City agrees to pay Manager for his services rendered pursuant hereto an annual base salary of $149,305, payable in installments at the same time as other employees of the City are paid, upon commencement of this contract, to coincide with Manager's payroll period. In addition, City picks up employees share of the P.E.R.S. (Public Employees Retirement System) pension pick-up. City agrees to increase said base salary by no less than 2% per year effective each subsequent January 1 st of this Agreement. In addition, City may increase said annual rate and benefit level to such extent as Council may determine provided Manager shall receive at least the same level of increase Council grants across-the-board to other classified full time employees. Section 5. Hours of Work A. It is recognized that Manager must devote a great deal of his time outside normal office hours to the business of the City, and to that end, Manager will be allowed to take compensatory time off as he shall deem appropriate during said normal office hours, provided that Manager fulfills his duties as Manager. B. Manager shall not engage in teaching, consulting, or other non-c ity connected business without the express prior approval of the City Council. Section 6. Automobile Allowance, Mobile Telephone and Laptop Computer Allowance A. Manager shall provide a suitable personal vehicle for his use in conducting City business. All costs of providing and operating that personal vehicle, including, but not limited to, fuel, maintenance and insurance shall be paid by Manager. City shall be named as an additional insured, as permitted by Manager s insurance carrier, on the insurance policy provided by Manager in an amount of at least $1,000, combined single limit coverage. Certificate of such coverage shall be provided by Manager to the City. The cost, if any, of naming the City as an additional insured on said policy shall be paid by the City. City shall pay Manager the sum of $ per month for the provision and use of his personal vehicle as provided herein, and shall increase by five percent annually. Such allowance may be adjusted periodically as agreed between the parties. B. City shall provide a mobile telephone and laptop computer f o r t h e M a n a g e r o r a n allowance consistent with City policy.

7 Section 7. Dues and Subscriptions City agrees to budget and to pay the professional dues and subscriptions of Manager necessary for his continuation and full participation in national, regional, state, and local City Manager associations. Dues and subscriptions for other organizations necessary and desirable for his continued professional participation, growth, and advancement, and for the good of the City may be approved by City Council. Section 8. Professional Development A. City hereby agrees to budget and to pay the travel and subsistence expenses of Manager for professional and official travel, meetings, and occasions adequate to continue the professional development of Manager and to adequately pursue necessary official and other functions for the City, including, but not limited to, the Annual Conference of the International City Management Association, the Ohio City Management Association, and such other national, regional, state, and local governmental groups and committees thereof of which Manager serves as a member. B. City may pay for the travel and subsistence expenses of Manager for short courses, institutes, and seminars that are necessary for his professional development and for the good of the City. Section 9. General Expenses City recognizes that certain expenses of a non-personal and generally job affiliated nature are incurred by Manager, including but not limited to, annual dues for one (1) local service club of Manager's choice, and hereby agrees to reimburse or to pay said general expenses, and the City Finance Director is hereby authorized to disburse such monies upon receipt of duly executed expense or petty cash vouchers, receipt statements, or personal affidavits. Service club is construed by the parties to mean organizations such as Kiwanis, Lions Club, Rotary International, etc., and does not include private social clubs like country clubs or golf clubs, etc. Section 10. Vacation and Sick Leave Manager shall receive paid vacation and sick leave in accordance with the Forest Park Codified Ordinances in effect on the original effective date of this agreement.

8 Section 11. Health, Dental and Other Benefits City agrees to p a y f o r f a m i l y d e n t a l, h o s p i t a l i z a t i o n, surgical, and comprehensive medical benefits for Manager and his dependents. Manager will be provided with insurance plans w i t h b e n e f i t s l e v e l s e q u a l to t h a t provided t o other full-time City employees. City agrees to p r o v i d e to M a n a g e r term l i f e i n s u r a n c e on Manager's life in an amount equal to two times the Manager's annual base salary. Section 12. Retirement A. City agrees to make regular periodic payments to the Ohio Public Employees Retirement System (OPERS) in the amount required of public employers by law and as provided for other full-time employees. The City agrees to pick up the employees share of the pension and pay on behalf of the Manager to the Ohio Public Employees Retirement System. B. City agrees to pay on a monthly basis a sum equivalent to ten percent (10%) of base salary of the City Manager into the City Managers deferred compensation account of his choice. C. City agrees to provide disability income protection insurance with a carrier and in the amount equal to the Managers base salary. Section 13. Sick Leave Annual sick leave will be granted to Manager, in accordance to the City of Forest Park s policy on sick leave accrual. Section 14. Other Benefits Manager shall receive funeral leave, longevity pay, holidays, attendance incentive award and witness and jury duty pay as provided by Forest Park Codified Ordinances or policy in effect as of the original effective date of this Agreement. Manager shall be annually credited with t h e s a m e a m o u n t o f p e r s o n a l l e a v e a s i s g i v e n t o a l l o t h e r C i t y e m p l o y e e s. In addition, Manager shall receive all additional benefits which may be hereafter provided to all other full-time employees in general or management employees including fifteen hundred dollars annually as a uniform allowance, except as otherwise specifically provided herein or as may otherwise be agreed to by the parties in the future. Section 15. Annual Evaluation City and Manager agree to an annual evaluation based upon mutually established goals, said evaluation to be accomplished on or about the end of each calendar year.

9 Section 16. Legal Defense and Indemnity The City agrees that it shall defend, hold harmless, and indemnify the Manager from any and all demands, claims, suits, actions, and legal proceedings brought against the Manager in his individual capacity or in his official capacity as agent and employee of the City, provided the incident arose while the Manager was acting in good faith and not manifestly outside of the scope of his employment or official responsibilities. Section 17. Other Terms and Conditions of Employment The City Council, after consultation with Manager, may fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of Manager, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement. Section 18. Other Provisions A. The text herein shall constitute the entire Agreement between the parties and may only be amended by future written Agreement of the parties. B. This Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and assigns of the parties. C. This Agreement shall be effective on January 1, 2018 after its execution by Manager and City. D. If any provision, or any portion thereof, contained in this Agreement is held to be unconstitutional, i n v a l i d, or unenforceable, the r e m a i n d e r of t h i s A g r e e m e n t, or p o r t i o n thereof, shall be deemed severable, shall not be affected, and shall remain in full force and effect. E. Nothing in this agreement shall restrict the Manager from residing outside of the city limits of the City of Forest Park. The Ohio Supreme Court in the case of City of Lima v State (2009), 122 Ohio St.3d 155, 2009 Ohio 2597, has determined that the enactment of ORC preempts the local authority of a City such as Forest Park from imposing a residency requirement. F. Manager and City agree that any dispute regarding this Agreement, except for termination pursuant to Section 4.03 of the Forest Park City Charter shall be governed by the laws of the State of Ohio. Each agree to submit any dispute arising out of or related to this Agreement, including any claim for breach, enforcement and interpretation, or the terms and conditions of Manager s employment with the City to final and binding arbitration before a single arbitrator in the appropriate arbitration

10 service administered by the American Arbitration Association for such employment disputes. Each party shall be responsible for its own costs of arbitration, including attorney fees. This provision to arbitrate any dispute shall not apply to permit the arbitration of any dispute or difference of opinion related to Manager s performance review or satisfactory employment performance. IN WITNESS WHEREOF, the City of Forest Park has caused this agreement to be signed and executed in its behalf by its Mayor, and the Employee has signed and executed this agreement, both in duplicate, the day and year first above written. Mayor City of Forest Park Date Resolution # ATTEST: City Clerk Date Tye R. Smith Date APPROVED AS TO FORM: Law Director Date CERTIFICATION OF THE FINANCE DIRECTOR I hereby certify that there is a balance, otherwise unencumbered, to the credit of the appropriation to which the foregoing expenditure is to be charged, and a cash balance, otherwise unencumbered, in the treasury, to the credit of the fund from which payment is to be made, each sufficient to meet the obligation hereby incurred. I further certify that the amount required to meet the obligations of this Agreement has been lawfully approved for the purpose of same and is, and shall remain encumbered, available in full and upon demand, in the treasury of the City of Forest Park, free from any prior encumbrances, for the balance due under this Agreement. Finance Director Date