Dona Ana County EMPLOYMENT AGREEMENT County Manager AsAmended December 13, 2022 liPageTABLE OF CONTENTS Article 1: Services to be Provided Article 2. Term of Agreement Article 3. Compensation Article 4. Hours of Work Article 5. Place of Performance Article 6. Outside Activities and Conflict of Interest Article 7; Health Disability and Life Insurance Benefits Article 8. Cellular and computer equipment Article 9. Leave Accrual Credit and Use Article 10. Retirement Article 11.Vehicle Use Allowance Article 12. General Business Expenses Article 13. Moving and Relocation Expenses Article 4. Termination of Agreement and Severance Article 15. Resignation Article 16: Performance Evaluation Article 17. Notice Article 18. Assignment of Claims Article 19. Insurance, Indemnification, and Litigation Expenses Article 20. Other Terms and Conditions of Employment Article 21.Severability Asticle 22. Dispute Resolution 21PageEMPLOYMENT AGREEMENT FOR FERNANDO R. MACIAS TO SERVE AS COUNTY MANAGER This Agreement, to employ Fernando R. Macias as Dona Ana County Manager, is entered between Dona Ana County through its Board of County Commissioners (hereinafter referred to as either "Board" or "County") and Femando R. Macias (hereinafter referred to as "County Manager’) Whereas, Fernando R. Macias is an individual who has the education, training, and directly related experience needed to effectively manage @ focal government agency and will serve as Dona Ana County's Manager as an unclassified County Manager consistent with Chapter 45 of the Dona Ana County Code; Whereas, the parties desire to document their mutual understanding of the employment agreement which officially commences on January 7, 2018; Now, therefore, in consideration of the mutual promises and agreements contained inthis Employment Agreement, the parties mutually agree to the above recitals and further agree as follows: Article 1. Services to be Provided ‘A. The County Manager shall provide professional services to Dona Ana County at the direction of the Board. The County Manager shall have all duties assigned to him/her pursuant to NMSA 1978, Section 4-38-19 and pursuant to any specific job description, Resolutions and Ordinances, and/or instructions received from the Board. B. The County Manager serves as an unclassified County Manager, appointed by elected officials in accordance with Chapter 45 of the Dona Ana County Code and in accordance with the other terms and conditions of the Dona Ana County Procedural Guidelines, to the extent they apply. Article 2. Term of Agreement ‘A. This agreement shall remain in full force for a period of six (6) years, from January 7, 2018 through January 7, 2026 unless terminated by the Board or County Manager as provided in Article 15 of this agreement. B. The Agreement may be extended by mutual consent of the parties as permitted by law. Article 3. Compensation A. The County shall pay the annual salary of two hundred five thousand, two hundred eighty-eight dollars and twenty-two cents ($205,288.22) payable in installments at the same time and method that other employees of the County are 3ipage paid.B. The County Manager is not automatically entitled to any annual increase in pay that may be granted to any other employee. C. The Board will determine what, if any, salary increase will be given after the annual performance evaluation of the County Manager. D. The County shall be responsible for withholding state and federal taxes and social security from the County Manager's wages. The County Manager is an FLSA exempt employee, and as such, is not eligible to receive overtime compensation. Article 4. Hours of Work ‘A. The normal Dona Ana County work hours are 8:00 a.m. to 5:00 p.m. Monday through Friday. However, the parties recognize that the County Manager's work may require him to start before 8:00 2.m. and extend beyond 5:00 p.m. B. It is recognized that the County Manager must devote a great deal of time outside the normal office hours on business for the County. The County Manager may also be required to work occasionally on weekends. ©. County Manager shall be allowed to establish an appropriate work schedule to ensure all necessary work is scheduled and managed. Occasional flexed schedules of less than four hours will be permissible. Article 5. Place of Performance ‘A. The County Manager shall perform the required services primarily at the Dona ‘Ana County Government Center. The County Manager will, however, be required to provide representation ‘of services at locations other than the Government Center. B. The County agrees to provide the County Manager with office facilities, secretarialireception staff, and all necessary supplies to carry out the duties of County Manager. C. The County Manager will be required to travel intra- and inter-state from time to time. Such travel will be in accordance with County policy. Article 6. Outside Activities and Conflict of Interest ‘A. The employment provided for by this Agreement shall be the County Manager's sole employment except as otherwise provided inthis agreement. B. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to the County and the community, the County Manager may 4)Pageelectto accept united teaching, consulting or other business opportunities with the understanding that such arrangements shall not constitute interference with or a conflict of interest with his responsibilities under this Agreement. Any such activity must be pre-approved by the Board. C. The County Manager warrants no interest and shall not acquire any interest which would conflict with the performance of the services required under the Agreement. D. The County Manager's failure to inform the County of the existence of a conflict or the potential for a conflict constitutes grounds for termination of the Agreement Article 7: Health Disability and Life Insurance Benefits ‘AcThe County agrees to provide and to pay the premiums for health, hospitalization, surgical, vision, dental and comprehensive medical insurance for the County Manager and his/her dependents equal to that which is provided to all other non-union represented employees of Dona Ana County. B. The County agrees to put into force and to make required premium payments for short term and long-term disability coverage for the County Manager. C. The County shall pay the amount of premium due for term life insurance in the amount of two hundred thousand dollars ($200,000.00). The County Manager shall name the beneficiary of the life insurance policy. Article 8. Cellular and computer equipment ‘A. The County will provide an appropriate cell phone to the County Manager to assist in executing the responsibilities associated with this contract. The County shall pay all fees related to the use of this cell phone. B. The County will provide personal computing devices for the county manager to carry out official business. Article 9, Leave Accrual Credit and Use A. The County Manager will receive 160 hours of vacation leave at the end of the first full pay period of each contract year. B. The County Manager shall accrue sick, vacation, and personal leave on an annual basis at the highest rate provided to any other group of employees. C. The County Manager shall, at least once during each year of this Agreement, take a two-week consecutive vacation. sIPageThe County Manager is entitled to accrue unused vacation leave, not exceeding 240 hours, which shall be carried over each year upon renewal of this employment agreement. The County Manager is not authorized overtime or compensatory time but will receive 88 hours of administrative leave per agreement year. The administrative leave will be credited annually at the end of the first full pay period of each contract year. If the County Manager terminates the agreement, all unused administrative leave will be forfeited. Inthe event the County Manager's employment is terminate, either voluntarily or involuntarily, the County Manager shall be compensated for all accrued sick, annual and personal leave through the termination date, The County Manager shall be entitled to holiday, jury and bereavement leave as provided to any other regular employee. The County Manager will notify the Chair or Vice Chair inwriting seven (7) days prior to all scheduled periods of vacation leave. fan unforeseen event makes ‘such notice impractical, the County Manager shall make the notification as soon as possible. Vacation eave may be taken in any increment of time from a half day (four hours) up to three weeks Ifthe County Manager terminates the Agreement without providing the notice required for termination or non-renewal as required by the terms of Article 15, the County Manager agrees to forfeit their right to payment for accrued vacation and administrative leave. Article 10. Retirement A The County Manager must be a member of the Public County Manager Retirement Association ("PERA") The County agrees to make all appropriate contributions on the County Manager's behalf as provided for in the County Resolution concerning contributions to PERA for non-union represented employees. Article 11. Vehicle Use Allowance A 6iPage The compensation set forth in Article 3 includes a vehicle allowance to be used to purchase, lease, or own, operate and maintain a vehicle to be used for official business within Dona Ana County. The County Manager shall be responsible for paying for liability, property damage, and comprehensive insurance coverage upon such vehicle and shall further be responsible for all expenses attendant to the purchase, operation, maintenance, repair, and regular replacement of said vehicle.The County stall reimburse the County Manager at standard mileage rate for any business use of the vehicle for travel outside of Dona Ana County. The County Manager may use a County fleet vehicle or rent a vehicle through the approved County contract for travel outside of Dona Ana County. Article 12. General Business Expenses A. County agrees to budget for and to pay for professional dues and subscriptions of the County Manager necessary for continuation and full participation in national, regional, state, and local associations, and organizations necessary and desirable for the County Manager's continued professional participation, growth, and advancement, and for the good of the County. County agrees to budget and pay for travel and subsistence expenses of County Manager for professional and official travel, meetings, and occasions to adequately continue the professional development of County Manager and to pursue necessary offical functions for the County. County Manager will be required to notify the Board Chair or Vice Chair prior to departure for any planned travel out of state. The County also agrees to budget for and to pay for travel and subsistence expenses of County Manager for short courses, institutes, and seminars that are necessary for the County Manager's professional development and for the good of the county. The County acknowledges the value of having County Manager participate and be directly involved in local civic clubs or organizations. Accordingly. County shall pay for the reasonable membership fees and/or dues to enable the County Manager to become an active member in local civic clubs or organizations. The County Manager will be reimbursed for other professional activities, including but not limited to training and professional development. Time spent on these activities will be treated as work time and not require the use of vacation leave. Article 13. Moving and Relocation Expenses ‘A. The County and County Manager agree that there are no moving and relocation expenses. Article 14. Termination of Agreement and Severance ‘A. The Board may not terminate this contract within the initial thirty-six months except 7iPage for cause. For purposes of this agreement, cause shall be defined as actions involving malfeasance, misfeasance, and nonfeasance.siPage The Board may terminate this Agreement with or without notice at any time with a majority vote (3) of the Board in a public meeting after the initial thirty-six (36) months of the contract. Either party desiring not to renew the Agreement at the end of its term shall provide at least sixty (60) day's written notice to the other party. D. Termination shall occur should the County Manager die or become permanently disabled. "Permanent disability" shall mean the County Manager's physical or mental inability to substantially perform his duties under this ‘Agreement for a period of sixty (60) calendar days in the first year of the contract or upon exhausting his rights under the Family and Medical Leave Act (FMLA) in all subsequent years of this Agreement. The permanent disability shall be certified by a physician duly licensed to practice in the State of New Mexico and acceptable to the Board and the County Manager or his legal representative. . Ifthe Board, citizens or legislature acts to amend any provisions of the personnel manual or ordinances pertaining to the role, powers, duties, authority, responsibilities of the County Managers position that substantially changes the form of government, the County Manager shall have the right to declare that such amendments constitute termination. The County may not reduce the annual salary, compensation or any other financial benefit to the County Manager during the term of the contract. Inthe event that this Agreement is materially breached by either party, notice and ‘opportunity to cure within thirty (30) days must be given to the breaching party with a 30-day period, before the breach shall provide the basis for termination Written notice of a breach of contract and the opportunity to cure shall be provided in accordance with the provisions of Article 16. ‘Severance shall be paid to the County Manager when employment is terminated as defined in Article 15, as follows: 1. Ifthe County Manager is terminated with 24 or fewer months remaining under the employment agreement's term, the County Manager shall receive severance pay equal to three (3) months of annual salary. The County Manager will receive the severance benefit in a lump sum In addition to any applicable severance pay, the County Manager shall also be compensated for all accrued sick leave, annual leave, and all paid holidays. Ifthe County Manager is terminated for cause, then the County is not obligated to pay severance under this section.L. Ifthe County manager voluntarily resigns or terminates employment, the County i not obligated to pay severance under this article. Article 10 provisions will remain in ull force and affect. Article 15: esignation ifthe County Manager voluntarily resigns his position with the County, the County Manager shall provide a minimum of 30 days’ notice unless the parties agree otherwise. Article 16. Performance Evaluation ‘A. The County Manager's performance will be reviewed and evaluated by the Boardannually. B. The performance evaluation process will include a form, criteria, and format which shall be mutually agreed upon by the Board and County Manager priorto the period of evaluation. C. The process, at a minimum, shall include the opportunity for both parties to prepare a written evaluation and meet and discuss the evaluation ina closed meeting. D. The annual evaluation session will also be used as a goal setting opportunity for the following evaluation period. Article 17. Notice A. Notice pursuant to this Agreement shall be in writing and mailed by depositing inthe custody of the United States Postal Service, postage prepaid, addressed as follows’ COUNTY: Dona Ana County Board of Commissioners 845 North Motel Boulevard Las Cruces, NM 88007 COUNTY MANAGER: Femando R. Macias P.O. Box 1155 Las Cruces, NM 88046 B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial practice. Notice shall be deemed given as of the date of personal service or as the date of deposit of such written notice in the course of transmission in the United States Postal Service. Article 18. Assignment of Claims The County manager shall not assign or delegate any interest in the Agreement nor transfer any interest or assign any claims for money due or for money that becomes due under the Agreement without the written consent of the County. oi PageArticle 19. Insurance, Indemnification, and Litigation cxpenses lolPage A The County shall provide professional liability insurance coverage for the County Manager to the same extent as it does for ts employees and officials. ‘The County shall bear the full cost of any fidelity or other bonds required of the County Manager under any law or ordinance. Beyond that required under Federal, State or Local Law, the County shall defend, save harmless and indemnify the County Manager against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of the County Manager's duties as County Manager or resulting from the exercise of judgment or discretion in connection with the performance of program duties or responsibilities, unless the act or omission involved willful or wanton conduct. Legal representation, provided by the County for the County Manager, shall extend until a final determination of the legal action including any appeals brought by either party. The County shall indemnify County Manager against any and all losses, damages, judgments, interest, settlements, fines, court costs and other reasonable costs and expenses of legal proceedings including attorney's fees, and any other liabilities incurred by, imposed upon, or suffered by such County Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened, arising out of or in connection with the performance of his or her duties. The County agrees to pay all reasonable litigation expenses of the County Manager throughout the pendency of any litigation to which the County Manager is a party, witness or advisor to the County. Such expense payments shall continue beyond the County Manager's service to the County if tigation is still pending. Further, ifthe litigation continues after the County Manager's service under this Agreement is complete, the County agrees to pay the County Manager reasonable consulting fees and travel expenses When the County Manager serves as a witness, advisor or consultant to the County regarding pending litigation Each of the patties shall bear all expenses (including attorney's fees) incurred by such party in connection with the preparation, review and negotiation of this Agreement. th the event that either party incurs legal expenses to enforce any provision of this Agreement, the prevailing party will be entitled to recover legal expenses including reasonable attorney's fees and costs in addition to any other relief to which the prevailing party may be entitled.Article 20. Other Terms and Conditions of Employment A. The Agreement shall not be altered, changed, or amended except by a written instrument signed by both parties hereto. By entering into this Agreement, the County and its “public employees" as defined in the New Mexico Tort Claims Act, NMSA 1978, section 41-4-1 ef. seq. do not waive sovereign immunity, do not waive any defense, and do not ‘waive any limitation of liability available to it by law. Any waiver of any breach of any term or condition of this Agreement shall not be deemed or considered as a continuing waiver and shall not operate to prevent the County or the County Manager from declaring a default for any succeeding breach of the same term or condition. This Agreement incorporates all the understandings of the parties concerning the hiring of the County Manager into this written document. No prior understanding, verbal or otherwise, shall be valid or enforceable unless embodied inthis Agreement. The Agreement shall be construed in accordance with New Mexico law. The County Manager shall comply with all applicable federal, state, and local laws, including ordinances, resolutions, and rules and regulations of the County. Any information given to or developed by the County Manager in the performance of this Agreement that isnot public record will be kept confidential and will not be made available to any individual, organization, or other entity by the County Manager without prior written approval of the Board. Article 21. Severability A If any clause or provision of the Agreement is held to be illegal, invalid, or unenforceable, the remainder of the Agreement shall remain infull force and effect. Article 22, Dispute Resolution UlPage A. In the event that a dispute arises with respect to any of the provisions contained in this Agreement or any other matter affecting this contractual relationship between the County and the County Manager, it shall be resolved by private mediation and/or arbitration. 8. F informal attempts to resolve the dispute have been successful, either party may submit a written demand for mediation. The Board and the County Manager shall agree on the selection of a mediator. If the parties have not mutually agreed upon a mediator within ten (10) working days from the date the request is received, Human Resources willprovide the parties with a list of suitable mediators, and the matter will be decided by the parties making alternate strikes from the list until one is left. That person shall serve as mediator. A similar process shall be followed in the event mediation fails to resolve the matter. Any dispute resolution session shall take place in Las Cruces, New Mexico. With regard to arbitration, the rules of the American Arbitration Association pertaining to arbitration procedures and evidence will apply. The arbitrator's decision will be binding, and that judgment may be entered in any court of competent jurisdiction. _ All attorneys’ fees and associated expenses, including the arbitrator's fees, shall be paid under the American rule where each party pays its own expenses and one half of the arbitrator's fees. COUNTY MANAGER BOARD OF COUNTY COMMISSIONERS sy OF DONA ANA COUNTY, NEW MEXICO Femando R. Macias Manuel A. Sanch Chairperson Date a2 /2 Date /2l2ofoz 121Page