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06-01-2017 Town Manager Employment AgreementTOWN MANAGER EMPLOYMENT AGREEMENT WITH VIRGINIA EGGER THIS EMPLOYMENT AGREEMENT ("Agreement") effective June 1, 2017, 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", effective on August 28, 2012, along with four subsequent amendments; 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 Agreement, thereby providing in this Town Manager Employment 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 this Agreement; 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 Charter and as legally specified and directed by the Town Council. 3.0 COMPENSATION. 3.1 BASE SALARY. The Town agrees to pay Manager a base annual salary ("Base Salary") of ONE HUNDRED SEVENTY-FOUR THOUSAND SEVEN HUNDRED SIXTY DOLLARS ($174,760.00), which shall be paid retroactively to and from June 1, 2017. Payment of the Base Salary under this Agreement shall be made in equal installments on a biweekly basis during the term of this Agreement. 3.2 HOUSING AND AUTOMOBILE ALLOWANCE. Manager shall receive a ONE THOUSAND SEVENTY DOLLARS ($1,070.00) per month allowance as additional salary for housing and automobile, which shall be paid retroactively to and from June 1, 2017. 3.3 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. The 11 % matching contribution from the Town towards the 401(a) Retirement Plan shall be paid retroactively to and from June 1, 2017. 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 Town Manager Employment Agreement with Virginia Egger July 25, 2017 Page 1 of 6 to the limitation of the Internal Revenue Service, 3.4 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. 3.5 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 Section 5 below. 3.6 OTHER BENEFITS. Manager shall be entitled to any other benefits that are provided by the Town to other fulltime executive employees. 3.7 COMPENSATION ADJUSTMENT. The Compensation of the Manager may be adjusted based upon the Manager's annual performance evaluation as set forth in Section 4 below, by the Town Council. Any change in Compensation shall be effective on June 1, of each year, and/or at subsequent annual performance evaluations. Compensation adjustments shall be made by motion and vote and do not require amendment of this Agreement. 4.0 PERFORMANCE REVIEW. The Town Council shall complete the annual performance review of the Manager on or before the fourth Tuesday of May of each calendar year, unless the Town Council and Manager mutually agree to a different date. 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 current year's annual performance review, with any changes being provided to the Town Manager for her concurrence on or before the fourth Tuesday in May, for the next year's annual performance review. 5.0 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, 6.0 FACILITIES. The Town shall furnish office facilities and assistance for Manager as the Town Council deems appropriate for the performance of Manager's duties. 7.0 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. Town Manager Employment Agreement with Virginia Egger July 25, 2017 Page 2 of 6 8.0 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. 9.0 TERMINATION. This Agreement may be terminated only as follows: 9.1 The Town may terminate Manager's employment with or without cause ("Cause," as defined below in Section 10.3), upon the vote of the majority of the Town Council; or 9.2 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 9.3 Manager may terminate Manager's employment, without notice, by resigning the position of Town Manager following a Town Council proposal that Manager resign; or 9.4 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. 10.0 SEVERANCE. 10.1 The Town shall pay severance ("Severance," as defined below in Section 10.2), to Manager if Manager's employment is terminated for any reason set forth in Section 9. Town shall not be obligated to pay severance if Manager's employment is terminated for Cause, defined below in Section 10.3, or in the case that Manager resigns voluntarily as set forth in Section 11. 10.2 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 following the termination of her employment. 10.3 For the purpose of this 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 Town Manager Employment Agreement with Virginia Egger July 25, 2017 Page 3 of 6 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. 10.4 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 12. 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. 10.5 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 Agreement and Manager shall be entitled to Severance. 11.0 RESIGNATION. In the event that Manager voluntarily resigns her position with the Town in a manner not contemplated by Sections 9.2, 9.3 or 9.4, 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 Agreement. 12.0 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 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, 13.0 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 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 10.3 and 10.4 above. 14.0 INDEMNIFICATION. In conjunction with the liability insurance policy provided by the Town, the Town Manager Employment Agreement with Virginia Egger July 25, 2017 Page 4 of 6 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. 15.0 NOTICES. All written notifications contemplated in this 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: If to the Town: If to Manager: 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 With Copy to: Town Attorney 1 Lake Street P.O. Box 975 Avon, CO 81620 16.0 ENTIRE AGREEMENT. This 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. 17.0 BINDING EFFECT. The Agreement shall be binding upon the Town and Manager and, as applicable, upon their heirs, personal representatives, successors, and authorized assigns. 18.0 ASSIGNMENT. The rights and obligations of this Agreement are personal in nature and shall not be assigned or other conveyed without the prior written consent of both parties. 19.0 NO THIRD PARTY BENEFICIARY. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the Town and Manager, and nothing contained in this Agreement shall give or allow any such claim or right of action by any third person to this 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 Agreement shall be deemed to be an incidental beneficiary only. 20.0 SEVERABILITY. The validity 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 Town Manager Employment Agreement with Virginia Egger July 25, 2017 Page 5 of 6 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 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. AMENDED AGREEMENT READ, UNDERSTOOD AND APPROVED by the Town of Avon and the Manager. TOWN OF AVON, COLORADO BY: ATTEST: nie Fancher, Mayor Debbie Hoppe, Town derk :SEAL,: APPROVEDCp.�RADO AS TO FORM:(:�* Eric 4. He , Town-Att ney MANAGER BY: C2 e Virginia C. Egger 00 Town Manager Employment Agreement with Virginia Egger July 25, 2017 Page 6 of 6