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HomeMy WebLinkAboutC2022-053 - Miller Employment ze2 - 053 EMPLOYMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND GRADY E.MILLER Amended and Restated December 7, 2021 THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement")is made and entered into December 7,2021,by and between the Town of Fountain Hills, an Arizona municipal corporation (the"Town") and Grady E. Miller ("Miller"). RECITALS A. The Town and Miller entered into an employment agreement on May 21, 2015, and an amended and restated employment agreement on June 15, 2017 (collectively, the `Employment Agreement"), to provide certain benefits, to establish certain conditions of employment, and to set working conditions for Miller. B. It is the desire of the Mayor and Council of the Town of Fountain Hills (the "Town Council") to continue to employ Miller as Town Manager of the Town, as provided by Article 3-1 of the Fountain Hills Town Code (the"Town Code") and to modify the Employment Agreement to increase Miller's salary and to amend other provisions as agreed upon herein. C. Miller desires to continue his employment as Town Manager of the Town. D. The parties acknowledge that Miller is a member of the International City/County Management Association ("ICMA"), and that Miller is subject to the ICMA Code of Ethics. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated into and are deemed an integral part of this Agreement, the mutual covenants set forth below and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged by the parties hereto, the Town and Miller hereby agree as follows: 1. Duties. Miller shall perform the functions and duties specified for the Town Manager in the Town Code and to perform other legally permissible and proper duties and functions as the Town Council shall from time-to-time assign. Miller shall not be reassigned from the position of Town Manager to another position without his express, written consent. 2. Term. This Agreement shall be effective as of the date first set forth above and shall remain in full force and effect until terminated by either the Town or Miller as set forth below. The Town and Miller agree that Miller shall continue his official duties for the Town and, during the term of this Agreement, Miller shall be in the exclusive employ of the Town and shall not accept other employment or carry out any other business except that of the position of 1 the Town Manager unless authorized to do so by the Town Council, in writing, prior to Miller engaging in such other activity; provided, however, that any such additional duties shall be conducted on Miller's vacation time and without the use of Town resources or equipment. 3. Termination. This Agreement may be terminated by the Town with or without cause at any time, subject only to subsection 3-1-1(E) of the Town Code and the severance provisions set forth in subsections 3.1 and 3.2 below. Miller may terminate this Agreement at any time, with or without cause, upon not less than 30 days written notice to the Town Council. 3.1 Severance With Cause. If the Town Council terminates this Agreement with cause, no severance pay will be paid to Miller unless otherwise approved by the Town Council in its sole discretion. For the purposes of this Agreement, "with cause" shall mean that the Town Council, at a duly posted public meeting, has determined that Miller has: (A) committed an act of gross insubordination by refusing to take a legal, valid action that is clearly within the scope of his employment when specifically directed to do so by a majority of the Town Council at a duly posted public meeting, (B) been incarcerated and charged with a felony as defined in Arizona Revised Statutes (the Town Council may, in its sole discretion, choose to suspend Miller with pay during the pendency of any such prosecution), (C) either in his personal or professional capacity, severely damaged the reputation of the Town or the Town Council, (D)materially failed to perform a significant portion of his duties as the Town Manager as set forth in this Agreement, (E) caused or by gross negligence allowed any practice, activity, decision or organizational circumstance that is either illegal or immoral, (F) violated provisions of the ICMA Code of Ethics, or (G) committed malfeasance in office or willful breach or habitual neglect of the duties described in subsection 3-1-1(H) of the Town Code. 3.2 Severance Without Cause. A. In the event the Town Council terminates this Agreement without cause, Miller shall be entitled to severance pay in an amount equal to six months of his annual base salary, benefits and allowances (excluding the value of the use of a Town vehicle, but including any automobile allowance granted by the Town Council pursuant to subsection 6.5 below), including pay-out of accrued vacation and sick leave at the then-current rates set forth for all Town employees in the Town's personnel rules, at the time of such termination, but specifically excluding any payout for unused Management Leave as described in Subsection 6.7 below. Payment of any such severance shall be contingent upon all of the following: (1) Miller executing a severance agreement acceptable to both parties,which shall include Miller's(a)full release of the Town and all its agents and employees from any and all claims, including but not limited to, demands, damages, causes of action or liability arising out of Miller's employment or termination of employment with Town, (b) agreement not to initiate or cause to be initiated under any lawsuit, claim, grievance proceeding or investigation of any kind,under any contract, law or regulation,pertaining to his employment with the Town, and (c) acknowledgement that the Town will provide no more than neutral references for Miller, but that the Town may be required to disclose any and all records related to such termination pursuant to a valid request for public records. 2 (2) Miller making himself reasonably available as needed by the Town for consulting purposes for a period of time equal to the number of months of severance paid. B. It shall be deemed severance without cause if, at any time during the term of this Agreement the Town Council (1) reduces Miller's salary or other financial benefits in a greater percentage than an applicable across-the-board reduction for all Town employees or(2) refuses to comply with a material term of this Agreement within 30 days after written notice from Miller. C. If Miller's employment is terminated pursuant to this subsection 3.2, all fringe benefits furnished by Town shall terminate on the date of termination of this Agreement. 3.3 Voluntary Resignation. In the event Miller voluntarily terminates this Agreement for any reason, he shall not be entitled to severance pay, unless otherwise approved by the Town Council in its sole discretion. 3.4 Forced Resignation. In the event of a suggestion, either formal or informal, by one or more members of the Town Council, including the Mayor, that he resign, Miller may require that the Mayor, Town Council and Miller meet and discuss the matter in an effort to resolve any disagreement or misunderstanding that led to the suggestion of resignation, subject to compliance with the Open Meeting Law and other applicable laws. If Miller resigns following an offer to accept resignation by a majority of the Town Council, whether formal or informal, then he may declare a termination as of the date of the acceptance. 4. Suspension. If the Town Council has determined that "for cause" termination is appropriate as set forth in subsection 3.1 above, the Town Council may, in its sole discretion, as an alternative to, or prior to, termination, suspend Miller with or without pay for a period of up to 30 days. 5. Disability. If Miller is permanently disabled or is otherwise unable to fulfill his duties hereunder due to sickness,accident,injury,health or mental incapacity for a period of four consecutive weeks beyond any accrued sick leave, or a minimum of 12 weeks as defined under the Family Medical Leave Act of 1993 (FMLA) should said accrued sick leave be less than twelve weeks, the Town shall have the option to terminate this Agreement; provided, the Town shall pay the full amount of severance pay set forth in Section 3 above. Miller shall, during such disability event, continue to accrue vacation leave and sick leave and receive holiday compensation benefits. A termination due to disability shall not be exercised unreasonably. 6. Compensation. 6.1 Salary. The Town agrees to pay Miller a base salary of $180,000.00, beginning with the first pay period immediately after the date on which this Agreement is effective, for his services rendered pursuant to this Agreement, payable in installments at the same time as other management employees of the Town are paid. In the event Miller has met or 3 exceeded the Town Council's expectations during any fiscal year under this Agreement, as determined according to the performance evaluation criteria set forth in Section 7 below,Miller's base salary shall be increased in each fiscal year by the same percentage amount approved by the Town Council for other Fountain Hills employees as a merit increase, market adjustment and/or cost of living increase, if any, as part of the Town's annual budget. The Town shall adjust Miller's other benefits in such amounts as are generally provided other Town employees. 6.2 Disability Health and Life Insurance. The Town agrees to provide life, accident, sickness, short- and long-term disability income benefits, major medical, hospitalization, surgical and comprehensive medical insurance, workers compensation and FMLA benefits in the same manner and at the same benefit level as is generally provided to all the Town employees. Except as otherwise provided in this Agreement, Miller shall be entitled, at a minimum, to the highest level of benefits enjoyed by and/or available to other employees, department heads or general employees of the Town as provided by the Town's policies, Town Code,ordinances,personnel rules and regulations or other practices.Miller may choose to forego coverage under this Subsection, in which case the Town shall provide Miller with a stipend of $500.00 per month to offset medical costs. 6.3 Retirement and Deferred Compensation. The Town shall make contributions to the Town's ICMA 401 plans on Miller's behalf in the same amount as contributed for other management employees of the Town. Miller may, at his sole option and expense, contribute to the Town's existing ICMA-RC 457 plan account (any catch-up amounts permitted by the plan shall be made separately by Miller). Such contributions shall be in 26 equal bi-monthly installments. The Town further agrees to transfer ownership of Miller's plan(s), to the extent permitted by law, to any succeeding employer in the event of Miller's termination of employment, for any reason. 6.4 Cellular Telephone. The Town shall provide Miller a $75.00 monthly cellular telephone stipend. Miller shall maintain a cellular telephone, with a telephone number published internally in the Town directory, for use in conducting Town business. 6.5 Automobile. The Town shall provide Miller with a vehicle allowance of$600.00 per month. 6.6 Vacation and Sick Leave. Miller shall accrue vacation and sick leave at the same rate as granted other employees. Miller shall be compensated for unused vacation and sick leave upon termination according to the provisions of the Town's then-current personnel rules relating thereto. 6.7 Management Leave. Miller shall be granted, on July 1 of each year, 80 hours of Management Leave to be used at his discretion. Leave under this Subsection 6.7 shall not accumulate from year to year, and the unused portion shall be forfeit on June 30 of each year. This leave shall not be included as a portion of Severance Pay as set forth in Section 3 above. 7. Performance Evaluation. The Town Council shall annually review and evaluate Miller's performance in or around October of each year. Miller's review and evaluation shall be 4 based upon: (i)success at fulfilling the reasonably achievable goals and performance objectives set forth by the Town Council in its annual goal-setting retreat, (ii) personnel management, including overall management style and ability to lead and direct staff and ability to supervise department heads, but specifically excluding any evaluation of Miller's hiring and firing decisions with respect to individual staff members, (iii) obtainment of additional, reasonably achievable policy objectives and goals as set forth by a majority of the Town Council at a public meeting; provided, however, that such goals and objectives are generally obtainable within the time allowed and within the limitations of the annual budget and (iv)professionalism, including manner of addressing the Town Council,preparation of Council agendas and supporting material and preparation and management of the annual budget. 8. Hours of Work. The Town Council recognizes that Miller is a salaried employee and must devote a great deal of time beyond the normal office hours to business of the Town and, to that end, Miller will be allowed to take reasonable time off as he shall deem appropriate during said normal office hours. 9. Dues and Subscriptions. The Town agrees to budget for and to pay for Miller's professional dues and subscriptions necessary for his continuation and full participation in national, regional, state and local associations and organizations of which he is currently a member or expected to be a member because of his position as Town Manager, and for other necessary and desirable expenses for his continued professional participation, growth, and advancement, and for the good of the Town, as the Town Council deems appropriate. This benefit shall not be included as a portion of Severance Pay as set forth in Section 3 above. 10. Professional Development. 10.1 Professional Associations. The Town hereby agrees to budget for and to pay for Miller's travel expenses of professional and official travel, meetings, and occasions it deems necessary to continue his professional development and to adequately pursue necessary official functions for the Town, including but not limited to the ICMA annual conference, the Arizona City/County Management Association conferences, the League of Arizona Cities and Towns annual conference,and such other national,regional,state,and local governmental groups and committees thereof on which Miller serves as a member. This benefit shall not be included as a portion of Severance Pay as set forth in Section 3 above. 10.2 Continuing Education. The Town also agrees to budget for and to pay for Miller's reasonable travel, registration and subsistence expenses for short courses, institutes and seminars that it deems necessary for his professional development and for the good of the Town. This benefit shall not be included as a portion of Severance Pay as set forth in Section 3 above. 11. Expenses. The Town recognizes that certain expenses of a non-personal and generally job-affiliated nature are periodically incurred by Miller. The Town agrees to: (A) reimburse or to pay said general expenses and(B) authorize the Finance Director or authorized designee to disburse such monies upon receipt of duly executed expense or petty cash vouchers, receipts, statements or personal affidavits. 5 12. Civic Club Membership. The Town recognizes the desirability of representation in and before local civic and other organizations, and Miller is authorized to become a member of such civic clubs or organizations the Town Council deems necessary and for which the Town shall pay all expenses. Miller shall report to the Town on each membership that he has taken out at the Town's expense. 13. Indemnification. In addition to that required under state and local law, the Town shall defend, save harmless, and indemnify Miller from and against any tort, professional liability claim, or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of Miller's duties as prescribed by the Town Code or separate directions of the Town Council. 14. Bonding. The Town shall bear the full cost of any fidelity or other bonds required of Miller under any law or ordinance. 15. Default; Cure. Failure or unreasonable delay by Miller or the Town to perform or otherwise act in accordance with any term or provision hereof shall constitute a breach of this Agreement and, if the breach is not cured within 30 days after written notice thereof from the other party, shall constitute a default under this Agreement;provided,however,that if the failure is such that more than 30 days would reasonably be required to perform such action or comply with any term or provision hereof, then the party shall have such additional time as may be necessary to perform or comply so long as the party commences performance or compliance within 15 days after written notice and diligently proceeds to complete such performance or fulfill such obligation (the "Cure Period"); provided further, however, that no such cure period shall exceed 90 days, unless otherwise agreed to, in writing, by the parties. Any notice of a breach shall specify the nature of the alleged breach and the manner in which said breach may be satisfactorily cured, if possible. In the event a breach is not cured within the Cure Period, the non-defaulting party shall have all rights and remedies which may be available under law orequity. 16. Notices and Requests. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if: (i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below or (iii) given to a recognized and reputable overnight delivery service, to the address set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Attn: Mayor With copy to: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills,Arizona 85268 Attn: Town Attorney 6 If to Miller: Grady E. Miller 16344 East Crystal Ridge Drive Fountain Hills, Arizona 85268 or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this Section. Notices shall be deemed received: (i) when delivered to the party, (ii) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage or (iii) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. 17. Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town or Miller of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 18. Attorneys' Fees. In the event either party finds it necessary to bring any action at law or other proceeding against the other party to enforce any of the terms, covenants or conditions hereof, or by reason of any breach or default hereunder, the party prevailing in such action or other proceeding shall be paid all reasonable costs and reasonable attorneys' fees by the other party and, in the event any judgment is secured by said prevailing party, all such costs and attorneys' fees shall be included therein, such fees to be set by the court and not by jury. 19. Headings. The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 20. Further Acts. Each of the parties hereto shall execute and deliver all such documents and perform all such acts as reasonably necessary, from time to time, to carry out the matters contemplated by this Agreement. 21. Time of the Essence. Time is of the essence in this Agreement. 22. Assignment. This Agreement may not be assigned, in whole or in part. 23. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof. All prior and contemporaneous agreements, representations and understandings of the parties, oral or written, are hereby superseded and merged herein. 24. Amendment. No amendment or waiver of any provision in this Agreement will 7 be binding (i) on the Town unless and until it has been approved by the Town Council and has become effective or (ii) on Miller unless and until it has been executed by Miller or his authorized representative. 25. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of the State of Arizona. 26. Severability. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision in this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Agreement or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by that invalidity or unenforceability. Each provision in this Agreement will be valid and will be enforced to the extent permitted by law and the parties will negotiate in good faith for such amendments of this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 27. Covenant of Good Faith. In exercising their rights and in performing their obligations pursuant to this Agreement, the parties will cooperate with one another in good faith to ensure the intent of this Agreement can be attained. The Town and its Town Council shall not unreasonably withhold appropriation authority to fund the salary, benefits and other provisions of this Agreement. 28. Conflict of Interest. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511. 29. Counsel Assistance; Fair Interpretation. 29.1 Counsel for Miller. Miller has either been assisted by counsel in connection with the preparation and execution of this Agreement or has chosen to forego such legal representation despite a recommendation from the Town that Miller seek advice from legal counsel. 29.2 Counsel for Town. The Town has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 29.3 Fair Interpretation. This Agreement shall be construed according to the fair meaning of its language. The rule of construction that ambiguities shall be resolved against the party who drafted a provision shall not be employed in interpreting this Agreement. 30. Non-Default. By executing this Agreement, Miller affirmatively asserts that: (i) the Town is not currently in default, nor has been in default at any time prior to this Agreement, under any of the terms or conditions of the Employment Agreement and (ii) any and all claims, known or unknown relating to the Employment Agreement and existing on or before the date of this Agreement are forever waived. 8 [SIGNATURES APPEAR ON FOLLOWING PAGE] 9 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above. "Town" TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Gin Dicke Mayor of Fou in Hills ATTEST: Elizabe . Klein, Town Cler APPROVED AS TO FORM: . A n, Town Attorney "Miller" Grady E. Miller, Town Manager By: t 1