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06-14-2016 Fourth Amendment to Town Manger Employment Agreement with Virginia EggerFOURTH AMENDMENT TO MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER THIS EMPLOYMENT AGREEMENT AMENDMENT ( "Fourth Amended Agreement ") effective June 14, 2016, by and between Virginia Egger ( "Manager ") and the Town of Avon, Colorado ( "Town "), a Home Rule municipality of the State of Colorado (individually "Party" and collectively "Parties "), and is made in contemplation of the following and is subject to the terms and conditions herein contained. RECITALS WHEREAS, the Parties signed a "TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER" ( "Agreement "), effective on August 28, 2012, and signed an "AMENDMENT TO THE TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER" ( "Amended Agreement ") effective on February 26, 2013; and a "SECOND AMENDMENT TO THE TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER" ( "Second Amended Agreement ") effective on January 24, 2014; and a "THIRD AMENDMENT TO TOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER" ( "Third Amended Agreement ") effective on November 11, 2014; and, WHEREAS, based on the annual performance review of the Manager conducted on June 14, 2016, the Town and Manager desire to further amend the Town Manager Employment Agreement with Virginia Egger; and WHEREAS, the Parties agree it is best to update those terms and conditions which are no longer relevant and to incorporate those changes and all terms and conditions from the Amended Agreement, Second Amended Agreement and Third Amended Agreement into this Fourth Amended Agreement, which are not being amended, thereby providing in this Fourth Amended Agreement all terms and conditions of the Manager's employment. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, and the above Recitals, which are incorporated herein, the Parties agree to the following terms and conditions. 1.0 EMPLOYMENT. Manager is employed as Town Manager of the Town for an indefinite period as an employee at will subject to the terms and conditions of Manager's employment, the Town of Avon Employee Policies & Procedures, effective April 25, 2016; the Town of Avon Compensation & Benefits Programs, effective January 1, 2016; and, the Avon Home Rule Charter, as may be amended from time to time. 2.0 DUTIES. Manager is employed as Town Manager in a fulltime capacity of the Town with the duties and functions specified in the Town of Avon Home Rule Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 1 of 8 Charter and as legally specified and directed by the Town Council. 3.0 COMPENSATION. The Town agrees to pay Manager an increased base annual salary ( "Base Salary ") of ONE HUNDRED SEVENTY THOUSAND DOLLARS ($170,000), which Base Salary and 11% matching contribution from the Town towards the 401(a) Retirement Plan shall be applied retroactively to and from December 1, 2015. Manager shall also receive a ONE THOUSAND SEVENTY DOLLARS ($1,070.00) per month allowance as additional salary for housing and automobile in addition to the Base Salary, which shall be applied beginning on June 1, 2016. The Base Salary of Manager shall be subject to adjustment based upon pay for performance adjustments of the Town following Manager's performance evaluation by the Town Council in May, 2017, which is anticipated to be effective on June 1, 2017, and /or at subsequent annual performance evaluations. Payment of the Base Salary under the Fourth Amended Agreement shall be made in equal installments on a biweekly basis during the term of this Fourth Amended Agreement. 4.0 RELOCATION EXPENSES. The Town shall reimburse Manager for all moving expenses incurred prior to commencement of her employment or during her employment, but not later than December 1, 2014, based upon the average of three quotes from qualified movers. Manager shall also be entitled to reimbursement for travel, lodging and meal expenses up to $1,000.00 incurred during the transition prior to the commencement of employment. Manager shall provide copies of all receipts for reimbursement of expenses. 5.0 PERFORMANCE REVIEW. The Town Council shall review the performance of Manager during the last week of May of each calendar year. The Town Council also may require a performance evaluation at any time a majority of the Council deems a review is necessary. The Town Council shall advise and inform Manager as to the Town Council's opinion and expectations regarding her performance as Town Manager based upon specific performance criteria. The Town Council shall use the specific performance evaluation criteria and process, which were used for the 2016 annual performance review, as distributed on the May 25, 2016, with any changes being provided to the Town Manager for her concurrence on or before June 30, 2016, for the 2017 annual performance review, and shall thereafter provide the specific performance evaluation criteria for the succeeding annual performance review at the current year's annual performance review. 6.0 RETIREMENT. The Town shall pay as retirement contribution an amount equal to the amount paid by Manager to the 401(a) Retirement Plan of the Town, which currently is eleven percent (11 %) of the Base Salary of Manager. In addition, Manager shall be entitled to participate in the 457 Deferred Compensation Retirement Plan of the Town which is a voluntary contribution plan subject to the limitation of the Internal Revenue Service. Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 2 of 8 7.0 INSURANCE BENEFITS. The Town shall provide and pay that portion of the premiums for health, dental, vision, and term life insurance for Manager and her dependents equal to that which is provided to all other fulltime employees of the Town in accordance with Town of Avon Compensation & Benefits Programs, effective January 1, 2016, as may be amended from time to time. 8.0 PAID TIME OFF. The Manager shall be entitled to paid time off ( "Paid Time Off') in accordance with Section 2.16.a of the Town of Avon Compensation & Benefits Programs, effective January 1, 2016, as may be amended from time to time, provided that Manager shall begin accruing Paid Time Off at the rate of an employee with five (5) years of employment with the Town which accrual shall begin on the date of commencement of employment set forth in Paragraph 10 below. 9.0 OTHER BENEFITS. Manager shall be entitled to any other benefits that are provided by the Town to other fulltime executive employees. 10.0 COMMENCEMENT OF EMPLOYMENT AS TOWN MANAGER. The Effective Date of the Agreement was August 28, 2012, irrespective of the date or dates upon which the Parties execute it. Manager commenced her duties as Town Manager on December 1, 2012. 11.0 FACILITIES. The Town shall furnish office facilities and assistance for Manager as the Town Council deems appropriate for the performance of Manager's duties. 12.0 LIMITATION ON PROFESSIONAL ACTIVITIES. Manager shall not engage in any non -Town employment activities for compensation without the express written consent of the Town Council. It is the intent of the Parties that Manager's employment agreement is for fulltime employment. Participation in professional organizations and voluntary programs are encouraged provided they are consistent with the responsibilities of the Town Manager of the Town. The Town shall pay Manager's membership fees and reasonable costs of participation in the International City Manager's Association and other memberships including professional development activities which the Town Council determines are consistent with her employment. 13.0 CONFERENCE ATTENDANCE. The Town shall pay for all expenses related to Manager's attendance at the International City Manager's Association annual conference, the Colorado Association of Ski Towns annual conference, the Colorado Municipal League annual conference, and at least one other out of state conference to be selected at the discretion of the Manager. Manager may propose additional job related training, education and professional membership and participation which shall be subject to review and approval by the Town Council. 14.0 TERMINATION. This Fourth Amended Agreement may be terminated only as Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 3 of 8 follows: 14.1 The Town may terminate Manager's employment with or without cause ( "Cause," as defined below in Section 15.3), upon the vote of the majority of the Town Council; or 14.2 Manager may terminate Manager's employment, without notice, if the Town, the citizens of the Town, or the Colorado General Assembly acts to amend any provision of the Town of Avon Home Rule Charter, Town ordinances, or appropriate enabling legislation so as to materially alter the role, powers, duties authority, or responsibilities of the Town Manager or the form of government of the Town; or 14.3 Manager may terminate Manager's employment, without notice, by resigning the position of Town Manager following a Town Council proposal that Manager resign; or 14.4 Manager may terminate Manager's employment owing to a breach of contract by the Town where the Town has failed to cure the alleged breach within forty -five (45) days of written notice by Manager to the Town of the alleged breach. 15.0 SEVERANCE. 15.1 The Town shall pay severance ( "Severance," as defined below in Section 15.2), to Manager if Manager's employment is terminated for any reason set forth in Section 15. Town shall not be obligated to pay severance if Manager's employment is terminated for Cause, defined below in Section 15.3, or in the case that Manager resigns voluntarily as set forth in Section 16. 15.2 The amount of Severance payment shall be four (4) months Base Salary and benefits at Manager's then current rate of Base Salary and benefits. A. Severance payment shall be paid biweekly or shall be paid in a lump sum within seven (7) business days of termination at the sole discretion of the Town and shall be reduced by all taxes and other withholdings required by law. B. Severance payment shall include compensation for all accrued Paid Time Off and paid holidays. C. Severance shall include payment of all premiums necessary for Manager to maintain health and dental insurance for herself and her dependents through COBRA or other applicable laws or regulations providing continuation coverage for four (4) months Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 4 of 8 following the termination of her employment. 15.3 For the purpose of this Fourth Amended Agreement, Cause shall include: A. Conduct by Manager which is fraudulent or dishonest; or B. Manager's conviction of a felony or crime involving moral turpitude under any federal or state law; or C. Gross negligence or malfeasance in office; or D. Excessive use of alcohol or drugs, which renders Manager unfit or unable to perform her duties, as determined by the Town Council. 15.4 If the Town Council intends to consider termination of Manager's employment for Cause, the Town Council shall give Manager written notification stating matters constituting the basis for termination for Cause ( "Notice of Termination for Cause "). If Manager desires to question whether the matters stated in the Notice of Termination for Cause are accurate or whether they constitute Cause, she shall have the right to do so by written notice ( "Notice of Appeal ") to the Town Council given within ten (10) days after her receipt of the Notice of Termination for Cause. In the event the Town and Manager are unable to resolve the issue within fifteen (15) days after the Notice of Appeal, such dispute shall be submitted to binding arbitration as provided in Section 17. In the event the arbitration decision determines Manager's termination was not for Cause, Manager shall thereupon be deemed to have been terminated without Cause effective the date of the Notice of Termination for Cause and she shall be entitled to Severance. 15.5 In the event the Town Council offers to permit Manager to resign in lieu of being terminated for Cause, such resignation, if it occurs, will constitute a termination without Cause under this Fourth Amended Agreement and Manager shall be entitled to Severance. 16.0 RESIGNATION. In the event that Manager voluntarily resigns her position with the Town in a manner not contemplated by Sections 15.2, 15.3 or 15.4, Manager shall provide a minimum of forty -five (45) days written notice unless the Parties otherwise agree. Upon the effective date of resignation, Manager shall be entitled to no further compensation or benefits under this Fourth Amended Agreement. 17.0 ARBITRATION. Whenever any dispute arises under the Fourth Agreement, the Parties agree that upon written demand of either Party, such dispute shall be submitted to binding arbitration to the Judicial Arbiter Group, Inc. located in Denver, or its successor, or such other arbitrator as the Parties may mutually Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 5 of 8 select, pursuant to the rules and procedure as determined by arbitrator. Provided, however, the arbitration hearing shall be held within thirty (30) days of appointment of the arbitrator unless otherwise agreed by both Parties. Furthermore, each Party shall be entitled to one deposition. The Colorado Rules of Evidence shall not apply unless otherwise agreed by the Parties, although the arbitrator shall have discretion to determine whether any proffered evidence is sufficiently reliable and probative to be admitted. The determination of the arbitrator shall be final and absolute. The decision of the arbitrator may be entered as a judgment in any court in the State of Colorado or elsewhere. 18.0 COMPLIANCE WITH THE LAW. It is the intent of the Town and Manager to comply with the provision of Article X, Section 20 of the Constitution of the State of Colorado, including, in particular, subsection 4(b). Therefore, the Parties agree that this Fourth Amended Agreement is subject to an annual appropriation by the Town Council and that the failure to make such appropriation will be deemed a termination without Cause, unless such action is the result of a prior termination for Cause pursuant to Sections 14 and 15 above. 19.0 INDEMNIFICATION. In conjunction with the liability insurance policy provided by the Town, the Town shall defend, save harmless, and indemnify Manager against any and all losses, damages, judgments, interest, settlements, fines, court costs, and other liabilities incurred by, imposed upon, or suffered by Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened, arising out of an alleged act or omission in the performance of Manager's duties as Town Manager or resulting from the exercise of judgment or discretion in connection with the performance of duties or responsibilities on behalf of the Town unless the act or omission involves willful or wanton conduct or intentional misconduct. Manager may request the Town to provide independent legal representation acceptable to Manager at the Town's expense and the Town shall not unreasonably withhold approval. Legal representation provided by the Town for Manager shall extend until a final determination of the legal action including any appeals brought by either party. Any settlement of any claim must be made with prior approval of the Town in order for indemnification as provided in this Section to be available. 20.0 NOTICES. All written notifications contemplated in this Fourth Amended Agreement shall be sent to the following addresses provided that the Manager may amend the address for notification by providing written notice of such address change: IT to the 1 own: IT to rnana er: Mayor Virginia Egger Town of Avon Town Manager 1 Lake Street P.O. Box 4654 P.O. Box 975 Edwards, CO 81632 Avon, CO 81620 Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 6 of 8 With Copy to: Town Attorney 1 Lake Street P.O. Box 975 Avon, CO 81620 21.0 ENTIRE AGREEMENT. This Fourth Amended Agreement constitutes the entire agreement of the Parties as to the subject matter hereof and may not be changed orally, but only by written agreement signed by both Parties for any waiver, changes, modification, or extension. 22.0 BINDING EFFECT. The Fourth Amended Agreement shall be binding upon the Town and Manager and, as applicable, upon their heirs, personal representatives, successors, and authorized assigns. 23.0 ASSIGNMENT. The rights and obligations of this Fourth Amended Agreement are personal in nature and shall not be assigned or other conveyed without the prior written consent of both parties. 24.0 NO THIRD PARTY BENEFICIARY. It is expressly understood and agreed that enforcement of the terms and conditions of this Fourth Amended Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the Town and Manager, and nothing contained in this Fourth Amended Agreement shall give or allow any such claim or right of action by any third person to this Fourth Amended Agreement. It is the expressed intention of the Town and Manager that any person other than the Town or Manager receiving services or benefits under this Fourth Amended Agreement shall be deemed to be an incidental beneficiary only. 25.0 SEVERABILITY. The validity or partial invalidity of any portion of this Fourth Amended Agreement will not affect the validity of any other provision. In the event that any provision of this Fourth Amended Agreement is held to be invalid, the Parties shall negotiate and diligently seek to reach agreement regarding the intent of the Parties concerning any such invalid provision. Accordingly, if any provision of this Fourth Amended Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they has been executed by both Parties subsequent to the expungement of the invalid provision. [SIGNATURE PAGE FOLLOWS] Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 7 of 8 AMENDED AGREEMENT READ, UNDERSTOOD AND APPROVED by the Town of Avon and the Manager. TOWN-OF AVON, COLORADO BY: ATTEST: Je nie Fancher, Mayor D bie Hoppe, Towd C erk O Approved as to form: Eric J. F&,-town Attorney MANAGER By: 7 Virginia C. Eg e 0 Fourth Amendment to Town Manager Employment Agreement with Virginia Egger June 14, 2016 Page 8 of 8