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Ord 590 Appointing Tom Brymer as Town ManagerTOWN OF WESTLAKE CI]���� G1► C��� CI�11� AN ORDINANCE OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, APPOINTING THOMAS E. BRYMER AS THE TOWN MANAGER; AUTHORIZING A CONTRACT PROVIDING FOR HIS SERVICES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the citizens of Westlake, Texas, held a special election on May 1, 1999 to determine whether the municipality shall adopt the city manager form of government; and WHEREAS, the results of the special election held on May 1, 1999, were 61 votes for and 8 votes against adopting the city manger form of government; and WHEREAS, the Board of Aldermen of the Town of Westlake, Texas, has accepted resumes and determined that Thomas E. Brymer is the finalist for the position of Town Manager; and WHEREAS, the Board of Aldermen desires to appoint Thomas E. Brymer as the new Town Manager for the Town of Westlake. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE TOWN OF WESTLAKE, TEXAS:, SECTION 1: That Thomas E. Brymer is hereby appointed as the Town Manager for the Town of Westlake, Texas, and shall serve at the will of the Board of Aldermen. SECTION 2: The Board of Aldermen of the Town of Westlake, Texas, does hereby authorize a contract with Thomas E. Brymer, attached as Exhibit "A", providing for his services as Town Manager for the Town. SECTION 3: If any portion of this Ordinance shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Board hereby determines that it would have adopted this Ordinance without the invalid provision. SECTION 4: That this Ordinance shall become effective from and after the date of its passage. Ordinance No. 590 Page 2 PASSED AND APPROVED by the Board of Aldermen of the Town of Westlake, Texas on this the 14th day of April 2008. Scott Brad (_ ATTEST: Sutter, TRMC, Town Secretary APPROVED AS TO FORM: J4l L: tanton T Attorney Employment Agreement This Agreement, made and entered into this 14t" day of April, 2008, by and between the Town of Westlake, a municipal corporation, (hereinafter called "Employer") and Thomas E. Brymer, (hereinafter called "Employee") an individual who has the education, training and experience in local government management to qualify him as a city manager, and who, as a credentialed member of ICMA, is subject to the ICMA Code of Ethics, provides as follows: WITNESSETH: WHEREAS, the Employer desires to employ the services of Thomas E. Brymer as Town Manager of the Town of Westlake; and WHEREAS, it is the desire of the Employer to provide certain benefits, establish conditions of employment and set working conditions of Employee; and WHEREAS, it is the desire of the Employer to (1) attract, secure, and retain the services of Employee and to provide inducement for him to remain in such employment, (2) to make possible full work productivity by assuring Employee's morale and peace of mind with respect to future security, and (3) to act as a deterrent against malfeasance or dishonesty or personal gain on the part of the Employee„ and WHEREAS, Employee desires to accept employment as Town Manager of the Town of Westlake. Texas; and NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: Section 1: Term A. This agreement shall remain in full force in effect from April 21, 2008 until terminated by the Employer or Employee as provided in Section 9, 10 or 11 of this Agreement. Section 2: Duties and Authority Employer agrees to employ Thomas E. Brymer to perform the functions and duties of Town Manager and to perform other legally permissible and proper duties and functions including: A. Employ, on behalf of the Town, all employees of the Town, except for those directly appointed by the Board of Aldermen. B. Direct, assign, reassign, and evaluate all of the employees of the Town. C. Organize, reorganize, and arrange the staff of the Town. D. Develop and establish internal regulations, rules, and procedures deemed' necessary for the efficient and effective operation of the Town. E. Accept all resignations of employees of the Town, except for the Town Manager position, which must be accepted by the Board of Aldermen, and those positions appointed by the Board of Aldermen. Further, except to the extent prohibited by or in material conflict with applicable laws and authorities, the Town Manager shall attend, and shall be permitted to attend, all meetings of the Board of Aldermen, both public and closed, with the exception of those closed (executive session) meetings devoted to the consideration of any action or lack of action on this Agreement, or any amendment thereto, the Town Manager's evaluation, or for purposes of resolving conflicts between individual Board members. Section 3: Compensation A. Base Salary: Employer agrees to pay Employee an annual base salary of $ 165,000 payable in installments at the same time that the other management employees of the Employer are paid. B. This agreement shall be automatically amended to reflect any salary adjustments that are provided or required by the Employer's compensation policies. C. Consideration shall be given on an annual basis by the Board of Aldermen to increase compensation based on performance and/or increases in the compensation market for the Town Manager position, adjustments to which may be considered necessary by the Board of Aldermen to remain market competitive for this position. Section 4: Health, Disability and Life Insurance Benefits A. Health Insurance. Upon the Employee commencing employment, the Employer agrees to provide and to pay the premiums for health, hospitalization, surgical, vision, dental and comprehensive medical insurance for the Employee and his dependents that is, as a minimum, equal to that which is provided to all other employees of the Town of Westlake. B. Life Insurance. Upon the Employee commencing employment, the Employer agrees to provide and pay the premiums for term life insurance for the Employee equal to one (1) times annual salary. The Employee shall name the beneficiary of this life insurance policy and the policy will be portable.. that is, the Employee will be able to convert this policy to his personal life insurance policy at his cost and his election should his employment terminate. C. Disability Insurance. Upon the Employee commencing employment, the Employer agrees to put into effect and to make required premium payments for disability coverage for the Employee under the same terms and conditions provided for other employees and in accordance with town policy. Section 5: Vacation and Sick Leave The Employee shall commence employment with ten (10) days of vacation and ten (10) days of sick leave available for use, provided that this vacation and sick leave accrual shall be considered a portion of Employee's 2008 accruals, and shall not be in excess of his 2008 accruals. Further, following commencement of employment, the Employee shall begin to accrue sick and vacation leave in accordance with the Town of Westlake's employee policies, but using an adjusted seniority date of the date Employee originally began his career in municipal government with the accrual not being less than four (4) weeks per year of sick leave and two (2) weeks per year of vacation. All accrued, but unused vacation and sick leave of the Employee shall carry over from year-to-year during the term of this Agreement only to the extent that Town policies allow carryover for all other employees. Upon voluntary resignation under Section 11 of this Agreement, the Employee shall receive payment for all accrued vacation. Section 6: Monthly Vehicle Allowance The Employer agrees to pay to the Employee, during the term of this Agreement and in addition to other salary and benefits herein provided, the sum of $500 per month as a vehicle allowance to be used to purchase, lease, or own, operate and maintain a vehicle. The Employee shall be responsible for paying the premiums for liability, property damage, and comprehensive insurance coverage upon such vehicle and shall further be responsible for all expenses attendant to the purchase, operation, maintenance, repair, and regular replacement of the vehicle. The vehicle allowance shall be adjusted annually, subject to the approval of the Board of Aldermen, using the Consumer Price Index or some other mutually agreed upon metric that gauges increases in vehicle operating costs. This consideration will be made by the Board of Aldermen when they annually review the Employee's base compensation. The Employer shall reimburse the Employee at the IRS standard mileage rate for any business use of the vehicle beyond the greater DFW area. For purposes of this Section, use of the car within the greater DFW area is defined as travel to locations within a 50 mile radius of Westlake. Section 7: Retirement 1. The Employer agrees to enroll the Employee into the Texas Municipal Retirement System and to make all the appropriate employer contributions on the Employee's behalf. 2. Employer agrees to execute all necessary agreements provided by ICMA Retirement Corporation (ICMA-RC), or other Section 457 deferred compensation plan agreeable to the Employee, for the Employee's continued participation in a deferred compensation plan. Employer also agrees to match annually the Employee's contribution to the deferred compensation plan (up to a maximum Town contribution of $5,000) to Employee's account. Employer will consider increased contributions to this deferred compensation plan during the annual performance evaluation process. 3 Section 8: General Business Expenses 1. Employer agrees to budget for and to pay for professional dues and subscriptions of the Employee necessary for continuation and full participation in national, regional, state, and local associations, and organizations necessary and desirable for the Employee's continued professional participation, growth, and advancement, and for the good of the Employer. 2. Employer agrees to budget for and to pay for travel and subsistence expenses of Employee for professional and official travel, meetings, and occasions to adequately continue the professional development of Employee, as well as maintain his ICMA credential, and to pursue necessary official functions for Employer, including, but not limited to, the ICMA Annual Conference, the state league of municipalities, and such other national, regional, state, and local governmental groups and committees in which Employee serves as a member. 3. Employer also agrees to budget for and to pay for travel and subsistence expenses of Employee for short courses, institutes. and seminars that are necessary for the Employee's professional development and for the good of the Employer. 4. Employer recognizes that certain expenses of a non -personal but job related nature are incurred by Employee, and agrees to reimburse or to pay the general expenses. The finance director is authorized to disburse such payment upon receipt of duly executed expense or petty cash vouchers, receipts, statements or personal affidavits. 5. The Employer acknowledges the value of having Employee participate and be directly involved in local civic clubs or organizations. Accordingly, Employer shall pay for the reasonable membership fees and/or dues to enable the Employee to become an active member in local civic clubs or organizations. 6. The Employer will provide the Employee with a new laptop computer and software, cell phone service, and Blackberry (or equivalent) email service for his professional use. Section 9: Termination For the purpose of this agreement, termination shall occur when: 1. The majority of the governing body votes to terminate the Employee at a duly authorized public meeting. 2. If the Employer reduces the base salary, compensation or any other financial benefit of the Employee in an amount or proportion greater than across the board reductions implemented for all other town employees, this action shall constitute a breach of this agreement and will be regarded as a termination. 4 4. If the Employee resigns following an offer to accept resignation, whether formal or informal, by the Employer as representative of the majority of the governing body that the Employee resign, then the Employee may declare a termination as of the date of the suggestion. 5. Breach of contract by the Employer and the failure to cure the default within 30 days after receipt of written notice from Employee (or within a reasonable time thereafter if the default is incapable of being cured within 30 days). Notice of a breach of contract shall be provided in accordance with the provisions of Section 20. Section 10: Severance Severance shall be paid to the Employee when employment is terminated as defined in Section 9. If the Employee is terminated, the Employer shall provide a minimum severance payment equal to one year salary at the current rate of pay. This severance shall be paid in a lump sum unless otherwise agreed to by the Employer and the Employee. In the event the Employee is terminated by the Employer during the six (6) months immediately following the Board of Aldermen election scheduled for May of 2008, and during that time the Employee is willing and able to perform his duties under this Agreement, then, Employer agrees to pay severance in accordance with Section 10 of the Agreement plus salary and benefits in accordance with Section 10 of this Agreement for any portion of the six (6) months not worked by the Employee. This provision only applies to the May, 2008 election year. If the Employee is terminated, the Employee shall also be compensated for all accrued vacation. If the Employee is terminated, for a minimum period of one year following termination, the Employer shall also pay the cost to continue the health insurance for the Employee and all dependents as provided in Section 4A. If the Employee is terminated because of a conviction of a felony, then the Employer is not obligated to pay severance under this section. Section 11: Resignation In the event that the Employee voluntarily resigns his/her position with the Employer, the Employee shall provide a minimum of 30 to 60 days notice unless the parties agree otherwise. Section 12: Performance Evaluation Employer shall annually review in writing the performance of the Employee the first review being in October 2008, and subsequent performance evaluations conducted every twelve (12) months thereafter, subject to a process, evaluation form/instrument, criteria, and format for the evaluation which shall be mutually agreed upon by the Employer and Employee. The annual evaluation process, at a minimum, shall include the opportunity for both parties to: (1) conduct a formulary session where the Board of Aldermen and the Employee meet first to discuss goals and objectives of both the past twelve (12) month performance period as well as the upcoming twelve (12) month performance period, (2) following that formulary discussion, prepare a written evaluation of goals and objectives for the past and upcoming year, (3) next meet and discuss the written evaluation of these goals and objectives, and (4) present a written summary of the evaluation results to the Employee. The final written evaluation should be completed and delivered to the Employee within 30 days of the initial formulary evaluation meeting. Unless the Employee expressly requests otherwise in writing, except to the extent prohibited by or in material conflict with applicable laws and authorities, the evaluation of the Employee shall at all times be conducted in closed (executive) session of the Board of Aldermen and shall be considered confidential to the maximum and full extent permitted by law. Nothing herein shall prohibit the Board of Aldermen or the Employee from sharing the content of the Employee's evaluation with their respective legal counsel. In the event that the Board of Aldermen and the Employee determine that the evaluation form/instrument, format, and/or process are to be modified by the Board of Aldermen, and the modifications would require new or different performance expectations, then the Employee shall be provided a reasonable period of time to demonstrate the expected performance before being evaluated. Section 13: Hours of Work It is recognized that the Employee must devote a great deal of time outside the normal office hours on business for the Employer, and to that end Employee shall be allowed to establish an appropriate work schedule. Section 14: Outside Activities The employment provided for by this Agreement shall be the Employee's sole employment. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to the Employer and the community, the Employee may elect to accept limited teaching, consulting or other business opportunities provided that the arrangements do not interfere with nor constitute a conflict of interest with his responsibilities under this Agreement. Employee's acceptance of outside activities will require prior notice to the Mayor and the governing body. Section 15: Moving and Relocation Expenses Employee agrees to establish residence within ten miles of Westlake, within three months of employment, and thereafter to maintain residence within ten miles of the corporate boundaries of Westlake. A. Employer shall reimburse Employee for the documented expenses of moving Employee and his family and personal property from Olathe, Kansas to the Westlake area. These moving expenses include packing, moving, unpacking, storage and insurance charges to up to a maximum of $25,000. Receipts and three bids will be required. B. Employer shall reimburse Employee for actual lodging and meal expenses for his family in route from Olathe, Kansas. Mileage costs for moving two personal automobiles shall be reimbursed at the current IRS allowable rate of 50.5 cents per mile. C. Employer shall reimburse Employee for interim housing costs up to $2,000 per month for documented expenses for rent and utilities for a period commencing on April 21, 2008, and shall continue up to 3 months, or until a home is purchased and closed on, whichever event occurs first. Employer agrees to discuss extension of this benefit if Employee's residence in Olathe, KS is not sold within this time period. D. Employer shall reimburse Employee for up to 12 round trip air fares for Employee and/or his family at any time during the first 90 days service to assist with house hunting and other facets of the transition and relocation process (a total of 12 individual trips shall be reimbursed regardless of whether Employee or a family member utilizes the trips). The Employee shall be reimbursed for actual lodging expenses incurred by Employee and his family members on any trips conducted prior to relocation, as detailed herein. Employer agrees to discuss extension of this benefit if Employee's residence in Olathe, KS is not sold within this time period. Section 17: Indemnification Beyond that required under 'Federal, State or Local Law, Employer shall defend, save harmless and indemnify Employee 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 Employee's duties as Town Manager or resulting from the exercise of judgment or discretion in connection with the performance of program duties or responsibilities, unless the act or omission involved willful or wanton conduct. The Employee may request and the Employer shall not unreasonably refuse to provide independent legal representation at Employer's expense and Employer may not unreasonably withhold approval. Legal representation, provided by Employer for Employee, shall extend until a final determination of the legal action including any appeals brought by either party. The Employer shall indemnify employee against any and all losses; damages, judgments, interest, settlements, fines, court costs and other reasonable costs and expenses of legal proceedings including attorneys fees, and any other liabilities incurred by, imposed upon, or suffered by such Employee in connection with or resulting from any claim, action, suit, or proceeding, actual or 7 threatened, arising out of or in connection with the performance of his or her duties. Any settlement of any claim must be made with prior approval of the Employer in order for indemnification, as provided in this Section, to be available. Employee recognizes that Employer shall have the right to compromise and settle any claim or suit, and unless Employee is a party to the suit or the suit is personal to Employee, Employee shall not heave veto authority over the settlement. Further, Employer agrees to pay all reasonable litigation expenses of Employee throughout the pendency of any litigation to which the Employee is a party, witness or advisor to the Employer. These expense payments shall continue beyond Employee's service to the Employer as long as the litigation is pending. Further, in the event that Employee is no longer an employee of the Town when litigation related services are required, Employer agrees to pay Employee reasonable consulting fees and travel expenses when Employee serves as a witness, advisor or consultant to Employer regarding pending litigation. Section 18: Bonding and Liability Insurance Employer shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. Further, Employer shall also bear the cost of professional liability and errors and omissions insurance for the Employee in the conduct of his official duties of Town Manager for the Town of Westlake. Section 19: Other Terms and Conditions of Employment The Employer, only upon agreement with Employee, shall fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided the terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or any other law. Section 20: Notices Notice under this Agreement shall be given by depositing the notice in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: Mayor, Town of Westlake, Suite 202, 3 Village Circle Westlake, Texas 76262 (2) EMPLOYEE: Thomas E. Brymer, at his last known residence address. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial practice. Notice shall be deemed given as of the date of personal service or as the date of deposit of the written notice in the course of transmission in the United States Postal Service. Section 21; General Provisions A. Integration. This Agreement sets forth the entire understanding between the Employer and the Employee relating to the employment of the Employee by the Employer. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any provision of this agreement during the life of the agreement. These amendments shall be incorporated and made a part of this agreement. B. Binding Effect. This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Effective Date. This Agreement shall become effective on April 21, 2008. D. Severability. The invalidity or partial invalidity of any portion of this Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they have been executed by both parties subsequent to the expungement or judicial modification of the invalid provision. IN WITNESS WHEREOF, the Westlake Board of Aldermen has caused this agreement to be signed and executed in its behalf by its Mayor, and duly attested to by its Town Secretary, and the Employee has signed and executed this agreement, both in duplicate, the day and year first above written. Cam Scott Bradley, Mayor Town of Westlake State of Texas ATTE Tqlhn secretary -�T I • OR 6' Thomas E. Employee