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HomeMy WebLinkAboutUntitled EMPLOYMENT AGREEMENT 4✓ THIS EMPLOYMENT AGREEMENT, made and entered into this 21 —day of February, 2003, by and between the City of Oak Park Heights, State of Minnesota, a municipal corporation, hereinafter referred to as "the City", and Eric Johnson, hereinafter referred to as "Employee." WHEREAS, the City desires to employ the services of Eric Johnson as City Administrator of the City as provided by the laws of the State of Minnesota and relevant to ordinances of the City of Oak Park Heights; and, WHEREAS, Employee desires to accept employment as the City Administrator of the City; and; WHEREAS, it is the desire of the City to provide certain benefits, establish certain conditions of employment, and to set working conditions of Employee; and, WHEREAS, it is the desire of the City to (1) secure and retain the services of the Employee and to provide inducement for Employee 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; (3) to act as a deterrent against malfeasance or dishonesty for personal gain on the part of the Employee; and (4) to provide a just means for terminating Employee's services at such time as Employee may be unable to fully discharge Employee's duties due to age or disability or when the City may desire to otherwise terminate Employee's employment. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: SECTION 1: DUTIES 1.1.1 The City hereby agrees to employ Eric Johnson as City Administrator of said City to perform the function and duties specified in the City Administrator's job description, and to perform duties specified under the ordinances of the City of Oak Park Heights and the laws of the State of Minnesota and, such other legally permissible and proper duties and functions as the City Council shall from time-to-time assign. SECTION 2: TERM,DISCHARGE, TERMINATION AND RESIGNATION 2.1 Term This AGREEMENT shall have a term commencing April 15, 2003 and continuing thereafter until December 31, 2005 or until otherwise terminated pursuant to the provisions of this contract. This contract shall automatically renew for an additional 2-year period unless either party provides written notice to the other on or before July 1, 2005 of intent not to renew this contract, in which case this contract shall terminate as of December 31,2005 Employee agrees to remain in the exclusive employ of the City until this contract is terminated. 2.2 Discharge. 1 Nothing in this EMPLOYMENT AGREEMENT shall prevent, limit, or otherwise interfere with the right of the City to terminate the services of the Employee (discharge) at any time, subject only to the provisions set forth in Section 2.5 paragraph b and c. of this EMPLOYMENT AGREEMENT. Paragraph 2.3 and 2.4 of this Section shall not be in force if the Employee is found to be unable to discharge assigned duties due to any type of disability or inability to perform up to normal standards of City management as determined by an impartial Board of three members agreed upon by the Employee and the City. If Employee and the City cannot agree on an impartial Board of three members, the matter will be submitted to binding arbitration by a single arbitrator assigned by the American Arbitration Association. 2.3 Resignation. The Employee agrees to remain in employment with the City for a period of thirty- six (36) months from the date hereof. Employee agrees during this time not to seek or accept other offers for employment elsewhere excepting that the employee may seek or solicit other offers of employment within the last 180 days of the term of this contract. Prior to termination of the employment with the City the Employee agrees to conduct the necessary search for his replacement making recommendations on same to the City. If the Employee voluntarily resigns his position prior to the scheduled termination of this contract, the severance contained in paragraph 2.5 of this EMPLOYMENT AGREEMENT shall not apply and excepting accrued benefits,no further payments shall be paid to Employee. 2.4 Termination for Cause. Nothing in this EMPLOYMENT AGREEMENT shall prevent, limit, or otherwise interfere with the right of the City to terminate the Employee for cause. Termination for cause may occur during the term of this EMPLOYMENT AGREEMENT because of: nonperformance of the terms of this agreement; a conviction of the Employee of a crime constituting a felony or gross misdemeanor; or, an act or actions of discrimination or harassment occurring within the work place as determined by a court of competent jurisdiction or by a neutral fact finder appointed by the city to investigate and report on any such allegation(s). In the event of termination for cause, the City shall have no obligation to pay any further payments otherwise due under the terms of the EMPLOYMENT AGREEMENT or severance pay as provided for herein. 2.5 Terminations and Severance Pay The Employee may, at his option, be deemed to be "terminated without cause" within the meaning of this agreement upon the occurrence of any of the following: a. If the City, at any time, reduces the salary or other financial benefits of the Employee in a greater percentage than in an across the board reduction for all City management employees; b. If the Employee resigns following the suggestion, whether formal or informal, made by 3 of the 5 members of the City Council that he resign; c. If the City refuses, following written notice,to comply with the other provisions of this agreement benefiting or affecting the Employee; 2 d. The Employee's employment shall be terminated if the City formally votes by 3/5 vote to terminate his'employment. In the event that the Employee's employment is terminated by the City as specified by this paragraph, the City agrees to maintain the employee on the city health and dental insurance systems existing as of the date of termination for four and one-half(4.5) months at city cost and pay the Employee a lump sum cash payment as severance pay equal to four and one-half (4.5) months' salary based on the current salary of the Employee in effect when the notice of termination is provided by the City or when the event of termination as otherwise prescribed above occurs, whichever event occurs first. Said amount shall be payable in addition to any other salary due the Employee. SECTION 3: SALARY 3.1 Salary The City agrees to pay the Employee for services rendered pursuant hereto an annual salary payable in installments at the same time as other employees of the City are paid. Employee's salary through the term of this contract is as follows: From the commencement of this contract through the date of termination of this contract,the employee's salary will be based upon an annual wage of$71,300.00 per year paid in established payroll periods as set forth by the City Council from time to time for all employees. The Employee shall receive on January 1, of each year of this contract a cost of living increase as with all other employment groups of the City. In the event such groups have different cost of living increases the same shall be averaged for the Employee. 3.2 Review The City shall conduct a performance review of the Employee's on or before August 1st of each year or at another date as may be agreed upon by the employee and the city council. The performance review shall not presume an adjustment in salary other than is provided for above. SECTION 4: AUTOMOBILE AND OTHER EXPENSES 4.1 Ownership of a private automobile and current/valid driver's licensure is required of the employee as a condition of employment under this contract. Employee will be compensated for automobile mileage and usage incurred on behalf of City business at the maximum mileage rate authorized under the Internal Revenue Code. Reimbursable mileage shall be that which is authorized under the Internal Revenue Code. Mileage records compliant with Internal Revenue Code requirements shall be maintained by the employee and submitted monthly for reimbursement to the City Finance Director. Other expenses incurred by employee as are authorized by the city council such as seminars, conferences, meals and lodging incurred in 3 pursuit of city business shall be reimbursed to the employee upon the employee providing the receipts therefore to the City Finance Director. SECTION 5: PROFESSIONAL DEVELOPMENT 5.1 Professional Associations The City may budget and, in its discretion, provide for the registration, travel, lodging, and reasonable expenses of the Employee for professional official travel, meetings, and occasions adequate to continue the professional development of the Employee and to adequately pursue necessary official and other functions for the City. Notwithstanding the foregoing, the City shall provide registration, travel, lodging, reasonable expenses, and State and/or National membership dues for the Employee to belong to the International City and County Management Association and attend their State and National annual conference. 5.2 Professional Development The Employee shall have all the rights to tuition reimbursement as the same are provided to the supervisors group as set forth in the City's employment policy. For each degree that the employee earns that is directly related to his employment and approved by the city council, he shall receive a two percent (2%) increase in annual pay. Such payment is in lieu of wellness or longevity pay otherwise provided for within the employee benefits policy/ordinance of the City. The employee has already earned degrees as follows: 1. 2. As with all other employees of the city this benefit will cap or max at 10 percent. Employee hereby elects the incentive pay featured in Section 203.28 B of the City's Code of Ordinances in lieu of Longevity Pay. SECTION 6: HEALTH, DENTAL AND LIFE INSURANCE 6.1 The City agrees to pay the Employee's costs to participate in the City's medical, dental, life insurance and disability insurance programs at the same rate as other employees. The City shall not participate in the cost of private insurance owned and maintained by the employee. SECTION 7: RETIREMENT 7.1 The City agrees to execute all reasonable agreements provided by the International City Managers Association-Retirement Corporation (ICMA-RC) for Employee's continued participation in said ICMA-RC retirement plan and, the City agrees to pay an amount equal to the ten percent (10%) of the gross annual salary of the Employee. City shall not be required to make contributions to the Public Employees Retirement Association on behalf of the Employee. In the event the city's contribution to the employee's retirement program exceeds the amount allowable under the rules of the "ICMA-RC" the excess portion not allowable shall be 4 paid into another fund established by the employee for that purpose and the employee shall be solely responsible for any tax liability affecting such funds or portions thereof. SECTION 8: OTHER TERMS AND CONDITIONS OF EMPLOYMENT 8.1 Other Conditions The City shall fix any such other terms and conditions of employment, as it may determine from time-to-time, relating to the performance of Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this EMPLOYMENT AGREEMENT, the duties traditionally associated with the office City Administrator pursuant to the City's ordinances,the City Code, or any other applicable law. 8.2 Fringe Benefits Except as may be otherwise herein provided to the contrary, all provisions of the City Code and regulations and rules of the City relating to retirement and pension system contributions,holidays, and other fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Employee as they would to any other employees of the City. As to those benefits specifically provided for within the terms of this contract, the same shall not be duplicated or augmented by existing City programs for fringe benefits to employees. Employee shall not be eligible for longevity paid benefits within the City. 8.3 Vacation, Sick Leave and Personal Days (i) Effective on the commencement of this contract, the Employee shall be granted twelve (12)vacation days to be used during the term of this EMPLOYMENT AGREEMENT. Six (6) of the twelve days will be made available for Employees'use after May 30, 2003. The other six(6) days will be made available for employee to use after September 1,2003 (ii) Unused Vacation days under part(i) above are not eligible for disbursement should the Employee or City terminate this EMPLOYMENT AGREEMENT with the City prior to December 31, 2003. It is also understood that vacation days used by the employee need not be reimbursed to the City in the event that this contract terminates on or before December 31, 2003 (iii) Commencing January 1,2004 the Employee shall annually receive fifteen(15)vacation days, accruing at 1.25 vacation days per month for the purposes of any separation disbursement to be used during the term of this EMPLOYMENT AGREEMENT. (iv) Employee shall earn one (1) sick day per month to be used during the term of this EMPLOYMENT AGREEMENT. The rate of accrual and the ability to accrue sick days shall be subject to the existing policies of the City. 8.4 Relocation 5 It is understood that Employee is not required to live within the Oak Park Heights city limits. The City will reimburse the employee up to $3,500.00 for actual personal household moving and relocation expenses authorized under'the Internal Revenue Code as are associated with locating and moving to a new residence within the ISD 834/Oak Park Heights area. SECTION 9: GENERAL PROVISIONS 9.1 Assignments and Subcontracts None of the sums due, or about to become due, nor any of the work to be performed under this EMPLOYMENT AGREEMENT by Employee shall be assigned to any third party without the prior written consent of the City. 9.2 Applicable Law This EMPLOYMENT AGREEMENT shall be deemed to have been entered into and shall be construed and governed, except with respect to conflict of laws, in accordance with the laws of the State of Minnesota. 9.3 Waivers Failure to either party to insist, in any one or more instances,upon the performance of any of the terms, covenants, or conditions of this EMPLOYMENT AGREEMENT or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future exercise of such right, but the obligation of the other party with respect to such future performance shall continue in full force and effect. 9.4 Severability The invalidity or unenforceability of any particular provision of this EMPLOYMENT AGREEMENT shall not affect the other provisions, and this EMPLOYMENT AGREEMENT shall be construed in all respects as if such invalid or unenforceable provision or provisions were omitted. 9.5 Amendments This EMPLOYMENT AGREEMENT may not be amended, modified, released, discharged, supplemented, interpreted, or changed in any manner except by written instrument signed by duly authorized representatives of both parties. 9.6 Headings 6 The headings utilized herein are provided as aids in referencing provisions of this EMPLOYMENT AGREEMENT, but shall not be utilized in interpretation, or construction of the terms and conditions herein. 9.7 Merger This EMPLOYMENT AGREEMENT and any Attachment (when signed by both parties), contain the entire and only understanding or agreement between the parties in relation to the subject matter hereof. Any representations, provision, undertakings, or condition hereof not contained herein shall be of no effect and shall not be binding on either party. 9.8 Force Majeure Neither party shall be liable or deemed to be in default for any delay or failure to perform under this EMPLOYMENT AGREEMENT resulting, directly or indirectly, from any cause beyond reasonable control, including,but not limited to war, fire, riot, insurrection, and acts of God. 9.9 Applicability of Personnel Policies and Resolutions Except where specifically abridged or modified by this agreement, personnel policies as defined and set forth for employees of the City of Oak Park Heights shall apply to this Employee. 9.10 Other Terms and Conditions of Employment (i) The City Council and the Employee may mutually agree to any other terms and conditions of employment of Employee as they may mutually deem appropriate from time-to-time provided such terms and conditions are not inconsistent with the provisions of this agreement, the laws of the State of Minnesota,the ordinances of the City,or any other applicable laws. (ii) All provisions of the City Code, and regulations and rules of the City relating to fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to the Employee as they would to other employees of the City, except as herein provided. (iii) Employee has requested and the Employer shall provide a formal job description of this position to the employee on or before May 30, 2003. 9.11. NOTICES. A. Address of Record. Each party agrees to keep the other informed of an address of record for correspondence and notices under this Agreement, as well as relevant telephone numbers for oral notices, B. Initial Address. The initial address of record for each party shall be: 7 • The City: City of Oak Park Heights 14168 Oak Park Blvd. Oak Park Heights, MN 550$2 Copy to: Mark J. Vierling Eckberg,Lammers, Briggs,Wolff&Vierling P.L.L.P 1835 Northwestern Ave. Stillwater,MN 55082 Eric: Eric A. Johnson PO Box 211 Winneconne, WI 54986 Copy to: Ted B. Johnson Attorney At Law 433 West Bradley Rd. Fox Point, WI 53217 C. Change of Address. Each party's address of record shall be that which is specified in subsection B. above until and unless the other party receives notification of change in writing. Each party will promptly notify the other of any such change. D. Future Notices. If notice of a change of address is properly given in writing pursuant to this Section, all future notices hereunder shall be given to the new name and/or address specified in the most recent such notice properly given. E. Other Required Notices. Notice required by operation of an applicable code, statute, ordinance or regulation shall be given as required therein, but a duplicate copy of such notice shall be given as specified in paragraph F. or G.below. F. Delivery of Notices. Notices pursuant to this Agreement may be given by deposit in the custody of the United States Postal Service, postage prepaid, certified or registered mail, return receipt requested. Alternatively, notices required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial process. G. Effective Date. Notice shall be deemed given as of the date of personal service or three (03) days following the date of deposit of such written notice in the course of transmission in the United States Postal Service, properly addressed and mailed as required herein. 8 IN WITNESS WHEREOF, the City of Oak Park Heights on a vote of its City Council has caused this EMPLOYMENT AGREEMENT to be signed and executed in its behalf by its Mayor and duly attested by its Deputy Clerk and the Employee has signed this EMPLOYMENT AGREEMENT, both in duplicate, day and years first written above. ATTEST: r"" / A.71•/ David Ee:udet,/ . er Illailli• �I I, Ma J. Vierling Erie o nson City Attorney Employee/City • a ministrator . 9 r • e Judy Hoist From: Mark Vierling [mvierling @eckbergiammers.com] Sent: Wednesday, November 20, 2002 11:00 AM To: Judy Hoist Subject: Mayor&Council Empl Agreemt 11.19.02-This is going out today ATT00004.html header.htm LAW OFFICES OF Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P. 1835 Northwestern Avenue James F. Lammers Robert G. Briggs * Mark J. Vierling ** Thomas J. Weidner ** Susan D. Olson * David K. Snyder Timothy M. Kelley Sean P. Stokes Baiers C. Heeren Stillwater, Minnesota 55082 (651) 439-2878 FAX (651) 439-2923 Direct Dial No: (651) 351-2118 Paul A. Wolff (1944-1996) Lyle J. Eckberg Of Counsel *Qualified Neutral Arbitrator *Certified Real Estate Specialist *Qualified Neutral Mediator November 20, 2002 Mayor David Beaudet Councilmember Les Abrahamson 6400 Lookout Trail North 13990 - 56th Street North Oak Park Heights, Minnesota 55082 Oak Park Heights, Minnesota 55082 Councilmember Mark Swenson Councilmember Jack Doerr 14846 Upper 55th Street North 14520 Upper 56th Street Oak Park Heights, Minnesota 55082 Oak Park Heights, Minnesota 55082 Councilmember Mary McComber 5728 Penfield Avenue North Oak Park Heights, Minnesota 55082 Re: Draft Employment Agreement/Memorandum of Understanding 1 ' S Dear Mayor and Councilmembers: Enclosed herewith you will find a draft of an Employment Agreement/Memorandum of Understanding that has been reviewed with Judy Holst with regard to her temporary position as the Acting Administrator. You will note that within the text of the Agreement that Ms. Hoist has been given a temporary pay increase to that of the highest level in the City, which is that of the Chief of Police, inclusive of his Civil Defense pay, as well. In addition thereto, she is being provided a $2,000.00 per month stipend to act as the City Administrator. Judy' s principal concerns were with regard to the potential loss of her compensatory time which has accrued and which she does not believe she will have the ability to practically use before the end of the year. I have provided within the Agreement that she either has the option to be paid that out before year end, or may carry it over into 2003 and use it within that calendar year at her option. She is also concerned about the possible need for administrative help within the office. I have reviewed with her these concerns relative to that type of assistance, and she assures me it is not the type of assistance that she would need the other fiscal staff to fill, but potentially a temporary employee to perform the tasks that she would assign to the individual to help her as needed. She is not indicating that she is going to hire within that particular position, but wants the authority to do so should she find that she needs that assistance. Yours very truly, Mark J. Vierling MJV/dcb Enclosure 2 LAW OFFICES OF Page 1 of 2 LAW OFFICES OF Eckberg, Lammers, Briggs, Wolff& Vierling, P.L.L.P. 1835 Northwestern Avenue James F.Lammers Stillwater,Minnesota 55082 Paul A.Wolff Robert G.Briggs* (1944-1996) Mark J.Vierling • 4 (651) 439-2878 Thomas J.Weidner• Lyle"Eckberg Susan D.Olson+ FAX (651) 439-2923 Of Counsel David K.Snyder • Qualified Neutral Arbitrator Timothy M.Kelley Direct Dial No: (651)351-2118 * Certified Real Estate Specialist Sean P.Stokes + Qualified Neutral Mediator Baiers C.Heeren November 20, 2002 Mayor David Beaudet Councilmember Les Abrahamson 6400 Lookout Trail North 13990—56th Street North Oak Park Heights, Minnesota 55082 Oak Park Heights, Minnesota 55082 Councilmember Mark Swenson Councilmember Jack Doerr 14846 Upper 55 th Street North 14520 Upper 56 th Street Oak Park Heights, Minnesota 55082 Oak Park Heights, Minnesota 55082 Councilmember Mary McComber 5728 Penfield Avenue North Oak Park Heights, Minnesota 55082 Re: Draft Employment Agreement/Memorandum of Understanding Dear Mayor and Councilmembers: Enclosed herewith you will find a draft of an Employment Agreement/Memorandum of Understanding that has been reviewed with Judy Hoist with regard to her temporary position as the Acting Administrator. You will note that within the text of the Agreement that Ms. Hoist has been given a temporary pay increase to that of the highest level in the City, which is that of the Chief of Police, inclusive of his Civil Defense pay, as well. In addition thereto, she is being provided a $2,000.00 per month stipend to act as the City Administrator. Judy's principal concerns were with regard to the potential loss of her compensatory time which has accrued and which she does not believe she will have the ability to practically use before the end of the year. I have provided within Y p Y Y P the Agreement that she either h as the option to be paid that out bef ore year end, or may carry it over into 2003 and use it within that calendar year at her option. She is also concerned about the ossible need for administrative help within the P p office. I have reviewed with her these concerns relative to that type of assistance, and she assures me it is not the type of assistance that she would need the other fiscal staff to fill, but potentially a temporary employee to perform the tasks that she would assign to the individual to help her as needed. She is not indicating that she is going to hire within that particular position, but wants the authority to do so should she find that she needs that assistance. file://C:\Documents and Settings\JHOLST\Local Settings\Temporary Inte...\ATT00004.htm 03/27/2003 LAW OFFICES OF Page 2 of 2 II Yours very truly, II Mark J. Vierling MJV/dcb Enclosure file://C:\Documents and Settings\JHOLST\Local Settings\Temporary Inte...\ATT00004.htm 03/27/2003 sir f,; Oak Park Heights Request for Council Action Meeting Date February 11, 2003 Agenda Item Title Extend Acting Administrator Memorandum of Understanding Time Required Agenda Placement Consent Originating Department/Requestor Administration/Judy Hoist ' f A„,/ , 7 Requester's Signature c Action Requested Approve extending Acting Administrator Memorandum of Understanding to March 14, 2003 Background/Justification (Please indicate any previous action,financial implications including budget information and recommendations). I am requesting extension of my MOU until March 14, 2003 or when the Administrator position is filled, whichever is earliest. 0 n � f✓ DEC 4 LAW OFFICES OF Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P. 1835 Northwestern Avenue James F.Lammers Stillwater,Minnesota 55082 Paul A.Wolff Robert G.Briggs* (1944-1996) Mark J.Vierling •4 (651) 439-2878 Thomas J.Weidner•4 Lyle J.Eckberg 1 439-2923 Of Counsel Susan D.Olson 4- FAX(65 ) Snyder Q David K.Sn *Qualified Y • ed Neutral Arbitrator Timothy M.Kelley Direct Dial No: (651)351-2118 *Certified Real Estate Specialist Sean P.Stokes 4Qualified Neutral Mediator Baiers C.Heeren December 2, 2002 Ms. Judy Hoist Acting City Administrator City of Oak Park Heights 14168 Oak Park Boulevard North P. O. Box 2007 Oak Park Heights, Minnesota 55082 Re: Memorandum of Understanding/Acting City Administrator Position Dear Judy: Enclosed herewith please find one original and two copies of the Memorandum of Understanding to be executed between yourself and the Mayor on behalf of the City of Oak Park Heights. I have already affixed my signature as to approval on page 3 s - -.I ents. After execution of the document has been completed, an• e date inserted on the first page,please forward a copy back for our files. Yo very Mark J. Vierling MJV/dcb Enclosure MEMORANDUM OF UNDERSTANDING This Agreement and memorandum is made and entered into this ;26,-/4"day of November,2002 by and between the City of Oak Park Heights and Judy Hoist. For purposes of this Agreement, the City shall hereinafter be referred to as "Oak Park" and Ms. Hoist shall be referred to as"Ho1st". RECITALS WHEREAS, Kimberly Kamper has resigned her position as Acting City Administrator for Oak Park effective November 15, 2002 but being no longer on employment premises as of November 7, 2002; and WHEREAS,pursuant to ordinance the City has appointed Hoist as the Acting City Administrator to serve in this position until such time as the City hires a permanent replacement for the purpose of City Administrator; and WHEREAS,both Oak Park and Hoist desire to memorialize the agreements that they have relative to the appointment of Hoist to the position of Acting City Administrator during the term of this Agreement; NOW,THEREFORE,BE IT RESOLVED between the parties as follows: 1. Effective Date. That Hoist shall, effective November 7, 2002,have the position within Oak Park as Acting City Administrator. She shall assume full duties relative to the position of City Administrator and accept such other tasks as are assigned to her by the City Council from time to time. 2. Compensation. Oak Park shall compensate Hoist for assuming the position of Acting City Administrator by adjusting her pay scale during the term of this contract to the base pay rate of $71,577.80 per year and providing her additional compensation in the amount of$2,000.00 per month effective beginning November 7, 2002 and continuing until such time as this Agreement terminates as provided for herein or sooner should the City hire a permanent replacement for the position of City Administrator. 3. January 1, 2003 Pay Increase. Hoist's position with Oak Park as to her pay as Finance Director shall increase on January 1, 2003 by the same percentage as is negotiated between Oak Park and Hoist's Union for calendar year 2003. Hoist shall also receive as of January 1,2003 of this agreement a cost of living increase on the acting administrator stipend to the same extent as with all other supervisors of the City. In the event such Vierling\OPH\Agreements\Memo of Understanding supervisors have different cost of living increases the same shall be averaged ged for Holst. 4. Benefits. Hoist shall retain all current longevity, seniority and benefits that she has relative to her position as Finance Director and shall continue to receive benefits during the term of this Agreement on the same level as are currently assigned to her in her position as Finance Director. Additionally she shall have mileage and expense benefits previously provided to the city administrator position by the city while she occupies the position of Acting City Administrator. 5. Retention of Position as Finance Director. Upon Oak Park's employing and securing a replacement permanently for the position of City Administrator Hoist shall return to her position as Finance Director with pay as is currently assigned to that position subject to the modification to be implemented January 1, 2003 as provided above, complete with all benefits as are currently assigned to that position during the term of this Memorandum of Understanding, notwithstanding the fact that she will be performing the duties as Acting City Administrator.Notwithstanding this agreement for purposes of longevity, seniority and benefits Hoist will be deemed to have been continuously employed as Finance Director during the effective term of this agreement. 6. Compensatory Time. Hoist currently has accumulated compensatory time within her current position. Given the demands on her time within this temporary position additional compensatory time may be accrued and/or it may be impractical for her to use the existing and anticipated compensatory time within the city's existing rules and policies. Holst is allowed at her option either to cash out the compensatory time accrued p p rY through 2002 at the end of the calendar year or shall be allowed the option to carry over the 2002 accrued time for use during calendar year 2003 at her option. 7. Clerical/Office personnel. Holst may need to hire a temporary office clerk or assistant to perform those tasks assigned by Holst during the term of this contract. Hoist is allowed the authority to make such a temporary hiring to employ a temporary office clerk or assistant for up to 25 hours per week at prevailing wage rates. Holst will notify the council prior to hiring any such personnel to provide for this position. 8. Termination. This Memorandum of Understanding shall terminate effective February 14, 2003 or earlier, upon the hiring of a permanent replacement for the position of City Administrator for the City of Oak Park Heights. This agreement may also be extended by the mutual written agreement of the parties. Vierling\OPH\Agreements\Memo of Understanding 9. Professional Development. Oak Park shall maintain a membership for the Acting City Administrator within the International City and County Management Association and provide reasonable expenses for Hoist to attend professional meetings and seminars to adequately continue professional development of Holst as Acting City Administrator and also to adequately pursue necessary official and other functions for Oak Park. As part thereof, the City shall also provide for the costs for registration, travel, lodging, and reasonable expenses to such meetings and conferences. 10. Other Conditions. Oak Park and Holst may confer from time to time to determine other such conditions and terms as are necessary relative to the position of Acting City Administrator. Both parties reserve the right to mutually agree to make amendments and modifications to this agreement as may be jointly desired from time to time. 11. General Provisions. a. Assignments and Subcontracts. None of the sums due or about to become due nor any of the work to be performed under the terms of this Memorandum of Understanding by Holst shall be assigned to any third party without the prior consent of Oak Park. b. Applicable Law. This Agreement shall be deemed to have been entered into and shall be construed and governed in accordance with the Laws of the State of Minnesota. c. Waivers. Failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Memorandum of Understanding or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future exercise of such right,but the obligation of the other party with respect to such future performance shall continue in full force and effect. d. Severability. The invalidity or unenforceability of any particular provision of this Memorandum of Understanding shall not affect the other provisions and this Agreement shall be construed in all respects as if such invalid or unenforceable provision or provisions were omitted. e. Amendments. This Memorandum of Understanding may not be amended, modified,released, discharged, supplemented, interpreted, or changed in any manner except by the written instrument signed by both parties. Vierling\OPH\Agreements\Memo of Understanding f. Headings. The headings utilized herein are provided as aids in referencing provisions of this Memorandum of Understanding but shall not be utilized in interpretation or construction of the terms or conditions herein. g. Merger. This Memorandum of Understanding and any attachment (when signed by both parties) contain the entire and only understanding or agreement between the parties in relation to the subject matter hereof. Any representations,provisions, undertakings, or conditions hereof not contained herein shall be of no effect and shall not be binding on either party. h. Neither party shall be liable or deemed to be in default for any failure to perform under the terms of this Memorandum of Understanding resulting directly or indirectly from a cause beyond reasonable control of that party including,but not limited to,war, fire, riot, insurrection, and Acts of God. i. Applicability of Personnel Policies and Resolutions. Except where specifically abridged or modified by this Agreement, Personnel Policies as defined and set forth for the employees of the City of Oak Park Heights shall apply to this Agreement and to Hoist. Dated this ae, day of November, 2002. ;�►�,�. #91-OAK Pe4• ' IGHTS /4", Judy Hol 11.10 avid Beaudet, Mayor APP' •VED AS TO i ; u _ ►'I •NTENT: ark J.Vierling ttorney for the City of O. Park Heights Ec i erg,Lammers,Briggs,Wolff& Vierling,P.L.L.P. 1835 Northwestern Avenue Stillwater,Minnesota 55082 Attorney I.D. 112823 Vierling\OPH\Agreements\Memo of Understanding EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT, made and entered into this 1st day of August , 1999, by and between the City of Oak Park Heights, State of Minnesota, a municipal corporation, hereinafter referred to as "the City" , and Thomas M. Melena, hereinafter referred to as "Employee . " WHEREAS, the City desires to employ the services of Thomas M. Melena as City Administrator of the City as provided by the laws of the State of Minnesota and relevant to ordinances of the City of Oak Park Heights; and, WHEREAS, Employee desires to accept employment as the City Administrator of the City; and; WHEREAS, it is the desire of the City to provide certain benefits, establish certain conditions of employment, and to set working conditions of Employee; and, WHEREAS, it is the desire of the City to (1) secure and retain the services of the Employee and to provide inducement for Employee 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; (3) to act as a deterrent against malfeasance or dishonesty for personal gain on the part of the Employee; and (4) to provide a just means for terminating Employee' s services at such time as Employee may be unable to fully discharge Employee' s duties due to age or disability or when the City may desire to otherwise terminate Employee' s employment . NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows : SECTION 1 : DUTIES 1 . 1 The City hereby agrees a rees to employ to Thomas M. Melena as City Administrator of said City to perform the function and duties specified in the City Administrator' s job description, and to perform duties specified under the ordinances of the City of Oak Park Heights and the laws of the State of Minnesota and, such other legally permissible and proper duties and functions as the City Council shall from time-to-time assign. SECTION 2 : TERM, DISCHARGE, TERMINATION AND RESIGNATION 2 . 1 Term This AGREEMENT shall have a term commencing August 1, 1999 and continuing until other wis e terminated pursuant to the provisions of this contract . Employee agrees to remain in the exclusive employ of the City until this contract is terminated. 2 . 2 Discharge Nothing in this EMPLOYMENT AGREEMENT shall prevent, limit, or otherwise interfere with the right of the City to terminate the services of the Employee (discharge) at any time, subject only to the provisions set forth in Section 2 . 5 paragraph b and c . of this EMPLOYMENT AGREEMENT. Paragraph 2 . 3 and 2 .4 of this Section shall not be in force if the Employee is found to be unable to discharge assigned duties due to any type of disability or inability to perform up to normal standards of City management as determined by an impartial Board of three members agreed upon by the Employee and the City. If Employee and the City cannot agree on an impartial Board of three members, the matter will be submitted to binding arbitration by a single arbitrator assigned by the American Arbitration Association. 2 . 3 Resignation. The Employee agrees to remain in employment with the City for a period of eighteen (18) months from the date hereof . Employee agrees during this time not to seek or accept other offers for employment elsewhere . Prior to termination of the employment with the City the Employee agrees to conduct the necessary search for his replacement making recommendations on same to the City. If the Employee voluntarily resigns his position prior to the scheduled termination of this contract, the severance provisions of this EMPLOYMENT AGREEMENT shall not apply and no further payments shall be paid to Employee . 2 . 4 Termination for Cause . Nothing in this EMPLOYMENT AGREEMENT shall prevent, limit, or otherwise interfere with the right of the City to terminate the Employee for cause . Termination for cause may occur during the term of this EMPLOYMENT AGREEMENT because of a conviction of the Employee of a criminal felony or gross misdemeanor or act or actions of discrimination or harassment occurring within the work place, being determined by a court of competent jurisdiction. In the event of termination for cause, the City shall have no obligation to pay any further payments otherwise due under the terms of the EMPLOYMENT AGREEMENT or severance pay as provided for herein. 2 2 . 5 Termination and Severance Pay The Employee may, at his option, be deemed to be "terminated without cause" within the meaning of this agreement upon the occurrence of any of the following: a . If the City, at any time, reduces the salary or other financial benefits of the Employee in a greater percentage than in an across the board reduction for all City employees; b. If the Employee resigns following the suggestion, whether formal or informal, by 3 of the 5 members of the City Council that he resign; c . If the City refuses, following written notice, to comply with the other provisions of this agreement benefiting or affecting the Employee; d. The Employee' s employment shall be terminated if the City formally votes by 3/5 vote to terminate his employment . In the event that the Employee' s employment is terminated by the City as specified above, the City agrees to pay the Employee a lump sum cash payment as severance pay equal to six (6) months' salary based on the salary of the Employee in effect when the notice of termination is provided by the City or when the event of termination as otherwise prescribed above occurs, whichever event occurs first . Said amount shall be payable in addition to any other salary due the Employee and, at the option of the Employee, shall be paid on the effective date of the termination or on January 2 of the following calendar year. SECTION 3 : SALARY AND REVIEW 3 . 1 Salary The City agrees to pay the Employee for services rendered pursuant hereto an annual salary payable in installments at the same time as other employees of the City are paid. Employee' s salary through the term of this contract is as follows : For a period of time from August 1, 1999 through the date of termination of this contract, the salary will be based upon an annual wage of $79, 100 . 00 per year paid in established payroll periods as set forth by the City Council from time to time for all employees . 3 The Employee shall receive on January 1, of each year of this contract a cost of living increase as with all other employment groups of the City. In the event such groups have different cost of living increases the same shall be averaged for the Employee . 3 . 2 Review The City agrees to review the Employee' s performance on or before August 1st of each year. SECTION 4 : AUTOMOBILE 4 . 1 Employee will be compensated for automobile mileage and usage on behalf of City business at the rate of $300 . 00 per month. SECTION 5 : PROFESSIONAL DEVELOPMENT 5 . 1 Professional Associations The City may budget and, in its discretion, provide for the registration, travel, lodging, and reasonable expenses of the Employee for professional official travel, meetings, and occasions adequate to continue the professional development of the Employee and to adequately pursue necessary official and other functions for the City. Notwithstanding the foregoing, the City shall provide registration, travel, lodging, reasonable expenses, and membership dues for the Employee to belong to the International City and County Management Association and attend their annual conference. 5 . 2 Professional Development The Employee shall have all the rights to tuition reimbursement as the same are provided to the supervisors group as set forth in the City' s employment policy. For each degree that the employee earns that is directly related to his employment and approved by the city council, he shall receive a two percent (2%) increase in annual pay. Such payment is in lieu of wellness or longevity pay otherwise provided for within the employee benefits policy/ordinance of the City. The employee has already earned degrees as follows : 1 . Bachelor of Arts Degree from Mankato State in Economics and Political Science . Ilj 2 . Bachelor of Sciences Degree from Mankato State in Construction Management . 3 . Masters Degree- Mankato State in Urban Affairs lil 4 . Specialist Degree in Public Administration - Hamline University. The employer acknowledges that the employee is currently working on a Doctorate at Hamline University in Public 4 Administration which degree will qualify under the current city policy when obtained. As with all other employees of the city this benefit will cap or max at 10 percent . SECTION 6 : GENERAL EXPENSES 6 . 1 The City recognizes that certain General Expenses of a non-personal and job-affiliated nature may, from time to time, be incurred by Employee, and providing that they have been pre- approved by the City Council, agrees to reimburse or pay for said General Expenses provided claims are supported by receipts duly submitted to the City. SECTION 7 : HEALTH, DENTAL AND LIFE INSURANCE 7 . 1 The City agrees to pay the Employee' s costs to participate in the City' s medical, dental, life insurance and disability insurance programs at the same rate as other employees . SECTION 8 : RETIREMENT 8 . 1 The City agrees to execute all reasonable agreements provided by the International City Managers Association-Retirement Corporation (ICMA-RC) for Employee' s continued participation in said ICMA-RC retirement plan and, the City agrees to pay an amount equal to the ten percent (10%) of the gross annual salary of the Employee . City shall not be required to make contributions to the Public Employees Retirement Association on behalf of the Employee . In the event the city' s contribution to the employee' s retirement program exceeds the amount allowable under the rules of the "ICMA- RC" the excess portion not allowable shall be paid into another fund established by the employee for that purpose and the employee shall be solely responsible for any tax liability affecting such funds or portions thereof . SECTION 9 : OTHER TERMS AND CONDITIONS OF EMPLOYMENT 9 . 1 Other Conditions The City shall fix any such other terms and conditions of employment, as it may determine from time-to-time, relating to the performance of Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this li EMPLOYMENT AGREEMENT, the City Code, or any other applicable law. 9 . 2 Fringe Benefits Except as may be otherwise herein provided to the contrary, all provisions of the City Code and regulations and rules of the City relating to retirement and pension system contributions, holidays, and other fringe benefits and working conditions as they now exist or hereafter may be amended, also 5 shall apply to Employee as they would to any other employees of the City. As to those benefits specifically provided for within the terms of this contract, the same shall not be duplicated or augmented by existing City programs for fringe benefits to employees . Employee shall not be eligible for longevity paid benefits within the City. 9 . 3 Vacation, Sick Leave and Personal Days (i) Effective August 1, 1999 Employee shall be granted vacation of twenty five days (5 weeks) per year. Effective January 1, 2000 and provided the City has received a letter within six months from the date of this agreement confirming the conversion to inactive status of the employees active military reserve status, employee shall earn vacation at the rate of six (6) weeks per year to be used during the term of this EMPLOYMENT AGREEMENT. The rate of accrual and the ability to accrue vacation time and its use shall be subject to the existing policies of the City. (ii) Employee shall earn one (1) sick day per month to be used during the term of this EMPLOYMENT AGREEMENT. The rate of accrual and the ability to accrue sick days shall be subject to the existing policies of the City. 9 .4 Relocation It is understood that Employee is not required to live within the Oak Park Heights city limits . SECTION 10 : GENERAL PROVISIONS 10 . 1 Assignments and Subcontracts None of the sums due, or about to become due, nor any of the work to be performed under this EMPLOYMENT AGREEMENT by Employee shall be assigned to any third party without the prior written consent of the City. 10 . 2 Applicable Law This EMPLOYMENT AGREEMENT shall be deemed to have been entered into and shall be construed and governed, except with respect to conflict of laws, in accordance with the laws of the State of Minnesota. 10 . 3 Waivers Failure to either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this EMPLOYMENT AGREEMENT or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future exercise of such right, but the obligation of the other 6 party with respect to such future performance shall continue in full force and effect . 10 .4 Severability The invalidity or unenforceability of any particular provision of this EMPLOYMENT AGREEMENT shall not affect the other provisions, and this EMPLOYMENT AGREEMENT shall be construed in all respects as if such invalid or unenforceable provision or provisions were omitted. 10 . 5 Amendments This EMPLOYMENT AGREEMENT may not be amended, modified, released, PP ,dischar ed supplemented, interpreted, or changed in any g manner except by written instrument signed by duly authorized representatives of both parties . 10 . 6 Headings The headings utilized herein are provided as aids in referencing provisions of this EMPLOYMENT AGREEMENT, but shall not be utilized in interpretation, or construction of the terms and conditions herein. 10 . 7 Merger This EMPLOYMENT AGREEMENT and any Attachment (when signed by both parties) , contain the entire and only understanding or agreement between the parties in relation to the subject matter hereof . Any representations, provision, undertakings, or condition hereof not contained herein shall be of no effect and shall not be binding on either party. 10 . 8 Force Majeure Neither party shall be liable or deemed to be in default for any delay or failure to perform under this EMPLOYMENT AGREEMENT resulting, directly or indirectly, from any cause beyond reasonable control, including, but not limited to war, fire, riot, insurrection, and acts of God. 10 . 9 Applicability of Personnel Policies and Resolutions Except where specifically abridged or modified by this agreement, personnel policies as defined and set forth for employees of the City of Oak Park Heights shall apply to this Employee . 10 . 10 Other Terms and Conditions of Employment 7 (i) The City Council and the Employee may mutually agree to any other terms and conditions of employment of Employee as they may mutually deem appropriate from time-to-time provided such terms and conditions are not inconsistent with the provisions of this agreement, the laws of the State of Minnesota, the ordinances of the City, or any other applicable laws . (ii) All provisions of the City Code, and regulations and rules of the City relating to fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to the Employee as they would to other employees of the City, except as herein provided. IN WITNESS WHEREOF, the City of Oak Park Heights on a vote of its City Council has caused this EMPLOYMENT AGREEMENT to be signed and executed in its behalf by its Mayor and duly attested by its Deputy Clerk and the Employee has signed this EMPLOYMENT AGREEMENT, both in duplicate, the day and years first written above . ATTEST: 11/4— David D. Sch_af Mayor \t" Mark r. Vierling Thomas M. Melena City :,ttorney Employee/City Administrator 8