4.7. SR 10-03-2011Item # 4.7.
MEMORANDUM
T0: Elk River City Council
Bob Thistle, Interim City Administrator
FROM: Sharon Klumpp
DATE: September 30, 2011
SUBJECT: City Administrator Employment Agreement
The City Council authorized Springsted to work with a guidance subcommittee comprised of Mayor John Dietz and
Council Member Nick Zerwas to negotiate an employment agreement with Cal Portner to serve as Elk River's City
Administrator. Consideration of the agreement is listed on the City Council's October 3 agenda. I hope to attend the
meeting, but I will be driving back from a meeting in Story County, Iowa and may not make it in time for your meeting
if traffic is bad. Therefore if you have any questions about the agreement please call me at 651.270.6856 this
weekend or send me an a-mail at sklumpg ansorinpsted.com and I will be happy to answer your questions.
Discussions with Mr. Portner regarding the employment offer went very smoothly. The attached agreement was
prepared by Mark Mathison, consistent with the direction provided by the guidance subcommittee. Earlier this week
Cal Portner provided us with an initialed draft signifying his agreement with these terms of employment, subject to the
full City Council's consideration and approval of the agreement. (Note: The agreement that is attached is ready for
signing andis not the one initialed earlier by Mr. Portner.)
A review of major provisions found in the employment agreement appears below:
Start date. The Agreement takes effect on October 17, 2011 which will be Mr. Portner's first day of employment.
At-will employment. Mr. Portner's employment with the City will be on an at-will basis for an indefinite term.
Duties and performance evaluation. The agreement discusses the duties and responsibilities of the City
Administrator and calls for an annual review process to be developed by the City and the City Administrator.
Compensation and benefits. The base salary is established at $124,425 and reflects a 5% increase over Mr.
Portner's current annual salary. Group insurance and other fringe benefit plans available to other non-unionized
employees will be available to Mr. Portner. In addition, Mr. Portner will receive a monthly car allowance of $400,
which is consistent with the average amount of car allowance provided to administrators in other cities of comparable
size. On his effective date of employment, Mr. Portner will be credited with 80 hours of vacation leave and 80 hours
of sick leave which he may use immediately at his discretion. He will also be credited with 11 years of service for the
City's vacation and sick leave plans, allowing him to accrue vacation at an annual rate of 128 hours during his first
year of employment. After completing one year of employment, he will receive 136 hours in accordance with the
City's schedule for an employee with 12 years of service. Other benefits include life insurance at two times his salary
and reasonable professional dues, fees and expenses related to membership and attendance at professional and
civic organization events and conferences. Mr. Portner will also receive PERA retirement benefits in the same
manner as other non-unionized employees.
Termination The agreement provides the severance benefits Mr. Portner will receive if the City Council elects to
terminate his employment for reasons other than cause which are defined in the agreement. Severance benefits are
defined as six months' base salary and six months' health insurance contribution. The severance benefits may be
paid out in a lump sum payment or incrementally over a period of not more than six months. Mr. Portner will be paid
for accrued vacation and sick leave in accordance with City policies.
CITY ADMINISTRATOR
EMPLOYMENT AGREEMENT
THIS CITY ADMINISTRATOR EMPLOYMENT AGREEMENT ("Agreement"), is
entered into by and between the CITY OF ELK RIVER, a Minnesota municipal
corporation and statutory Plan A city under Minnesota law ("City") and CALVIN
PORTNER ("Administrator").
This Agreement shall be effective, and Administrator's employment hereunder shall
begin, on October 17, 2011, (the "Effective Date") provided that this Agreement has been
accepted and executed by both parties before that date.
RECITALS
WHEREAS, City wishes to retain the Administrator to perform the duties and
responsibilities of City Administrator as such duties and responsibilities have been and
may be determined by the City Council from time to time; and
WHEREAS, the Administrator has indicated that he is qualified and willing to accept
and perform the duties and responsibilities of City Administrator subject to the terms of
this Agreement;
NOW, THEREFORE, for good and valuable mutual consideration, and intending to be
legally bound, City and Administrator agree as follows:
AGREEMENT
1. EMPLOYMENT. Upon the terms and conditions set forth in this Agreement,
City hereby employs Administrator on an at-will basis for an indefinite term, and
Administrator accepts such employment. In such employment, Administrator shall serve
in the capacity of City Administrator, reporting to the City Council. Neither the
Administrator nor the City is bound to continue the employment relationship if either
chooses, at its or his will, to end the relationship. Accordingly, this Agreement and
Administrator's employment by City may be terminated at any time pursuant to Section 6
of this Agreement. Neither party shall be entitled to any type of due process or hearing
for the purpose of appealing, disputing or challenging the determination of the other party
to terminate the employment relationship or this Agreement.
2. DUTIES AND PERFORMANCE EVALUATION. While Administrator is
employed under this Agreement, excluding any periods of vacation, sick, disability or
other leave to which Administrator is entitled, Administrator agrees to devote his full
time and best efforts to the business and affairs of the City and to fully and faithfully
discharge the duties and responsibilities assigned to Administrator under this Agreement.
The Administrator shall provide oversight and management of City operations and
support to the Mayor and City Council as described in the City of Elk River City
Administrator Position Description attached here as Exhibit A (as such job description
may be amended by the City from time to time) ("Job Description") and shall perform all
such other duties and responsibilities as may be assigned to the Administrator from time
to time by the City Council.
The City shall make every reasonable effort to review and. evaluate the
performance of the Administrator on an annual basis. The review and evaluation shall be
done in accordance with specific criteria developed jointly by the City and the
Administrator as such. criteria may be thereafter modified by the City Council in
consultation with the Administrator.
3. APPLICATION OF LAW AND POLICY TO AND BY THE
ADMINISTRATOR. Application of the Job Description requires the Administrator to
know and comply with, as well as to apply, state, federal, and local laws, ordinances,
rules and regulations applicable to the City. In addition, the Administrator is subject to
the personnel policies and all other policies of the City applicable to its non-unionized
employees generally, as such polices may be adopted and amended from time and set
forth in the City of Elk River Personnel Policy Manual and/or other documents of the
City. To the extent such laws, ordinances, rules and regulations are inconsistent with this
Agreement, the provisions of such ordinances and laws shall control over this Agreement.
On the other hand, to the extent the City's policies and procedures are inconsistent with
this Agreement, the provisions of this Agreement shall control.
4. COMPENSATION AND BENEFITS. For his services under this Employment
Agreement the Administrator will be compensated as follows:
4.1 Base Salary. Beginning as of the Effective Date of this Agreement, City
shall .pay Administrator a Base Salary on a pro rata basis at an annual rate of One
Hundred Twenty-four Thousand Four Hundred Twenty Five Dollars ($124,425.00).
Such Base Salary is to be paid in substantially equal regular periodic payments in
accordance with City's regular payroll practices. If Administrator's Base Salary is
changed at any time during Administrator's employment with the City, the changed
amount shall become the Base Salary under this Agreement, subject to any subsequent
changes.
4.2 Other Compensation and Benefits. While Administrator is employed by
the City under this Agreement the City shall provide Administrator with the following
compensation and benefits in addition to the Base Salary set forth above:
(a) Group Insurance and Other Fringe Benefit Plans. Administrator
shall be permitted to participate in all fringe benefit plans for which Administrator
is or becomes eligible according to their respective eligibility conditions.
Administrator's participation in such fringe benefit plans shall be on the same
terms and under the same conditions as other similarly-situated City employees
who are not represented by a union. The City may, in its sole discretion, amend
2
or terminate any fringe benefit plan that provides benefits generally to its non-
unionized employees.
(b) Car Allowance. The City shall provide the Administrator with a
car allowance of $400 per calendar month.
(c) Paid Sick Leave and Paid Vacation Leave. Upon the Effective
Date, the City shall credit the Administrator with 80 hours of paid sick leave and
80 hours of paid vacation leave. These credited hours of sick and vacation leave
shall be immediately available to the Administrator for use at his discretion. The
City will also credit Administrator with eleven years of service under its paid
vacation and sick leave plans and the Administrator shall thereafter accrue paid
vacation and sick leave on an annual basis at such accrual rate as applies to non-
unionized City employees generally according to their years of service.
(d) Public Employees Retirement Association (PERA) Contributions.
The City shall make contributions to a retirement plan account established for
Administrator in the Public Employees Retirement Association (PERA) as
prescribed by law and in accordance with the terms and conditions of such PERA
retirement plan.
(e) Life Insurance. The City shall pay the amount of premium due for
term life insurance in the amount of two (2) times the Administrator's annual
Base Salary, including all increases in the Base Salary during the life of this
Agreement. The Administrator shall name the beneficiary of the life insurance
policy.
(f) Professional and Civic Dues, Fees, and Expenses. The City shall
pay for Administrator's reasonable professional dues, fees, and expenses for
membership in and attendance at professional and civic organizations and events
and conferences reasonably related to Administrator's position with the City; but
the City reserves the right to require that the City Council approve such dues,
fees, and expenses in advance of their being incurred.
4.3. The Administrator's compensation shall be subject to federal and state
income tax withholding, FICA and Medicare and such other deductions as the City is
required by law, or believes in good faith it is required by law, to make. The position of
City Administrator is an exempt executive position under the Fair Labor Standards Act
(FLSA) and the Minnesota Fair Labor Standards Act (MFLSA) and, in accordance with
those laws, shall not be subject to the payment of premium compensation, or to receiving
compensatory time, for overtime.
5. INDEMNIFICATION. City shall defend and indemnify City Administrator in
accordance with Minnesota Statutes Sections 466.07 and 465.76. Nothing in this Section
5 shall be deemed a waiver by the City of any limitations on liability set forth in
Minnesota Statutes, Chapter 466, or elsewhere in Minnesota or other applicable law.
3
6. TERMINATION OF EMPLOYMENT.
6.1 NOTICE. The Administrator shall provide the City with at least thirty
(30) days advance written notice of his intent to voluntarily terminate his employment
with City, unless the City and Administrator mutually agree in writing to a shorter notice
period.
The City shall provide the Administrator with at least thirty (30) days notice of its
intent to terminate his employment under this Agreement .unless the termination is for
Cause as defined in this Agreement, in which case no notice is required.
6.2 SEVERANCE. If the City elects to terminate the Administrator's
employment under this Agreement for any reason other than Cause, as defined below,
subject to the conditions set forth in this section the City shall pay the Administrator an
amount equivalent to six months of the Administrator's then-current Base Salary and
shall continue to pay the Employer portion of the Administrator's health insurance
premium for the first six months of Administrator's eligibility for COBRA continuation
of health insurance. The six months' Base Salary payment and the six months' health
insurance contribution are referred to together throughout the rest of this Agreement as
the "Severance." In order to be eligible to receive the Severance the Administrator must
sign and not rescind an agreement releasing any and all claims arising out of his
employment with the City or arising under this Agreement, in a form prescribed by the
City.
If the Administrator voluntarily resigns his employment under this Agreement he
shall not be entitled to the Severance.
If the City terminates the Administrator for Cause, as defined below, then the City
shall not be obligated to pay the Administrator the Severance.
The City and the Administrator may mutually agree to terminate the
Administrator's employment without Cause and in such circumstances the City shall pay
the Administrator the Severance unless the parties agree otherwise.
Any Severance or other payment due under this Agreement may be paid in a lump
sum or incrementally over a period of not more than six months.
6.3 ACCRUED PAID LEAVE UPON TERMINATION. If the
Administrator's employment is terminated, either voluntarily or involuntarily, other than
for Cause, the Administrator shall be entitled to compensation from the City for any and
all accrued unpaid sick and vacation leave in accordance with the City policies then in
effect for other City employees who are not represented by a union.
6.4 CAUSE. "Cause" means any of the following, with respect to
Administrator's position of employment with the City:
(a) Administrator's failure or refusal to perform the duties and
responsibilities of the City Administrator as set forth in this Agreement, unless
such failure or refusal is certified by a medical provider of the City's choosing to
be due to a disability or a physical or mental illness or bodily injury or disease;
(b) Any conduct by the Administrator, without regard to where such
conduct occurs, that materially interferes with the performance of Administrator's
duties, responsibilities, and obligations under this Agreement;
(c) Administrator's indictment for or conviction of (including entering
a guilty plea or plea of no contest to) a felony or any crime involving moral
turpitude, fraud, dishonesty or theft;
(d) Any material dishonesty of Administrator involving or affecting
the City;
(e) Any conduct, negligence, or willful or intentional act or omission
of Administrator having the effect or reasonably likely to have the effect of
injuring the reputation, business or business relationships of the City in a material
way;
(f) Any willful or intentional breach by Administrator of a fiduciary
duty to the City;
(g) Except as otherwise specifically provided in this Section 6.4,
Administrator's material violation or breach of any of City's standard business
practices or policies, including, without limitation, policies against racial or
sexual discrimination or harassment;
(h) Any material breach (not covered by any of the above clauses (a)
through (g)) of any material term, provision, or condition of this Agreement.
7. GENERAL PROVISIONS:
a. Notices. All notices, requests and demands given to or made pursuant to
this Employment Agreement shall be in writing and personally delivered or
mailed, postage prepaid, as follows:
To City: Office of the Mayor
Elk River City Hall
13065 Orono Parkway
Elk River MN 55330
To the
Administrator: Calvin Portner
15923 Drake St. NW
Andover, MN 55304
b. Governing Law and Venue. This Employment Agreement shall be
governed by and interpreted in accordance with the laws of the state of
Minnesota and shall be heard in the state or federal courts of Minnesota and
all parties to this Agreement waive any objection to the jurisdiction of these
courts, whether based on convenience or otherwise. If the parties disagree
upon the interpretation of this Agreement, and cannot resolve their
differences in good faith, the parties agree to request non-binding mediation
from the Minnesota Bureau of Mediation Services. In any dispute between
them, each party will be responsible for its own attorneys' fees, and the
parties will split equally any other mediation fees.
c. Severability. If any provision contained in this Agreement is determined by
a court of competent jurisdiction to be void, illegal or unenforceable, in
whole or in part, then such court may modify such provision to make it valid
and enforceable and the other provisions contained herein shall remain in
full force and effect as if the provision that was determined to be void,
illegal, or unenforceable had not been contained herein. No payment may
be made under this Agreement in excess of the maximum amount permitted
by applicable law.
d. Waiver, Modification, and Integration. The waiver by any party hereto of
a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any party. This
instrument contains the entire agreement of the parties concerning
employment of the Administrator by the City and supersedes all prior and
contemporaneous representations, understandings and agreements, whether
oral or in writing, between the parties hereto with respect to the employment
of the Administrator by the City and all such prior or contemporaneous
representations, understandings and agreements, both oral and written, are
hereby terminated. This Agreement may not be modified, altered or
amended except by written instrument executed by both the Administrator
and the City.
e. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this City
Administrator Employment Agreement intending to be legally bound.
CITY OF ELK RIVER
By:
Mayor
And:
City Clerk
ADMINISTRATOR
GP:3041151 v3
Exhibit A
City of Elk River
City Administrator Position Description
GP:3041151 v3
~''' City of Elk River
City Administrator
ver Position Description
Department: Immediate Supervisor:
Administration City Council
Pay Grade: FLSA Status: Last Updated: (date)
3/2006
18 Exempt
Positions Supervised:
Finance Director, Prosecuting Attorney, Park and Recreation Director, Community Development Director,
Police Chief, Fire Chief, Street Superintendent, Wastewater Chief Operator, City Clerk, Human Resource
Re resentative and all ci staff indirectl .
Position Summary
The City Administrator is the chief administrative officer for the City. This position is
responsible for the daily administration and coordination of all City affairs in accordance
with the City Ordinance and directives from City Council.
Essential Functions
1. Performs general city administration.
A. Develops and issues such administrative rules, regulations and procedures as may be
necessary for the proper functioning and coordination of the City's affairs consistent with
state and local ordinances and City Council policy.
B. Enforces and implements the City's laws and ordinances; recommends changes,
amendments, or repeal of appropriate ordinances to the City Council.
C. Recommends to the Council such measures as may be necessary or expedient for the
health, safety and welfare of the community or for the improvement of the
administration.
D. Attends and participates in City Council meetings and attends other meetings of official
bodies as directed by the City Council.
E. Prepares agenda and appropriate supporting material for all City Council meetings.
F. Monitors and enforces all contracts entered into by the City.
2. Performs public relations activities.
A. Represents the City at official or semi-official functions as deemed necessary for the
purpose of public relations or as otherwise directed by the City Council.
B. Promotes and develops cooperative inter-governmental business and community
relations.
C. Prepares news releases and developments other public relations material.
9
Performs personnel activities.
A. Supervises and directs all departments, offices, and divisions of the City consistent with
City Council policy except as otherwise provided by law.
B. Supervises and directs all City Council-appointed consultants.
C. Ensures that supervisors provide written and oral performance evaluations of employees
in their department.
D. Performs timely annual performance reviews of all employees supervised.
4. Performs financial activities.
A. Prepares an annual operating budget for all departments and funds of the City for
submission to the City Council as required by law.
B. Monitors the City's fmancial condition and keeps the City Council duly informed of said
condition.
5. Performs other essential job duties.
A. Regular and timely work attendance.
B. Follows all safety procedures.
C. Participates in safety training.
Required Knowledge, Skills, and Abilities
^ Knowledge of state and federal laws, ordinances and rules and regulations applicable to
municipal government.
^ Knowledge of government processes and services.
^ Knowledge of management principles and practices as they apply to public sector management
including personnel management and organizational development.
^ Ability to supervise staff and motivate employees to work to their full potential.
^ Ability to communicate effectively both orally and in writing.
^ Ability to respond quickly and decisively to emergency situations.
^ Ability to effectively meet citizens needs and demands by implementing City policy.
^ Ability to establish and maintain a working relationship with City Council, staff, other public
officials, the public.
^ Ability to plan and analyze City operations; develop alternatives; determine the costs,
advantages, disadvantages of various alternatives.
^ Ability to prioritize City needs, allocate resources effectively.
^ Ability to maintain confidentiality, mediate disputes, and negotiate contracts.
Minimum Qualifications
^ Bachelor's degree in public administration, business administration or a related field with
emphasis in public administration or fmance and twelve years of public administration experience
at a supervisory level or Master's degree and ten years of public administration experience at a
supervisory level.
^ Valid driver's license.
Preferred Qualification
^ Administration experience in a high growth city.
This Positio^ Deseriptionisno~intended to be all-inclusive. It is «ithin the Ciry ot~Elk Etiver's discretion to assign
additional duties and responsibilities or remove duties and responsibilities at any time.
This Position Description does not constitute a Contract of Employment.
10