Peck v. City of Henderson et al

Filing 11

AMENDED COMPLAINT against all defendants, filed by Mary Kay Peck. No changes to parties. Proof of service due by 9/18/2009. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B 1-7, # 3 Exhibit Exhibit B 8-15, # 4 Exhibit Exhibit B 16-23, # 5 Exhibit Exhibit B 24-31, # 6 Exhibit Exhibit B 32-38, # 7 Exhibit Exhibit C)(Kirshman, Norman)

EXHIBIT A

0~/11/2009

08:44

7022672081

CITY OF HENDFRSON

PAGE

~2/1

EMPLOYMENT AGREEMENT
'fhiB Employment Agreement ("Agreement'~, entered into effective
Qto(\f
4

Iv

.2007, is between the City o f Henderson, having its pdncipal place of

business at 240 Water S~ Henderson. Nevada ('"COH)J and Mary Kay Peele. CPeck") an

individual residing at the address set forth belOw her signature at the end ofthis Agreement

RECITALS
L Peck hu been employed by the COR since Febnwy 1995, and is currently

serving as the Ass1stant City Manager.

2.

COR desires to continue to employ Peck, recognize her prior contributions to the

COlI, motivate PCQI( to continue Jw employment wi~ COH and increase her knowledge lUld .

experience in order to lUlSume even gteatcr reaponsibiJities.
AGREEMENT

ACCORDINGLY, the parties agree as follows:

1.

Period of Employment
a.

D.sk Tenn. ,COH shall employ Peck as .city Manager with duties and

responsibilities as described in Article m, Sect!on8 3.020,3.140 o f the City Charter. for a period

ofthree years from the effective date ofthis Agreement, consistent with Article I, Section 1.010
of the City Charter (Legislative intent) unless Peck's employment is terminated sooner in

8C00rdance with Artiole ill, Section 3.030 of the City Charter.
b.
(3) year Annual RenewaL At the expiration of each anniversary y.- o f the three

term. this Agreement shallllutomatica11y extend for an additional three-year period

, unless the CQuncil duly con~d following requi~ Notice in writing to the contrary at least 90

Page 1 o f 10'

0~/11/2009

08:44

7022672081

CITY OF

H~NP£R5QN

PAGE 53fH

days prior to the anniversary expi(S.tion date, ofthe intention by the Council to terminate the
employment relationship.
2.
Po.ition, Duties, R.espollJibllities a.

Position.' Peck Is hereby employed by COH as City Manager and shall

discharge appropriate responsibilities as senerally set forth in Article UI, Sections 3.020 and 3.140 of the City Charter,
8B

well as such other dutiea as may reasonably be assigned by the

COH Council. Pede shall at all times petfQml her duties and discha1ie her reIPOnsibilities under

this Agreement diligently and conscientiously to the best o f her ability, consistent with applicable
Jaw,. Peck shall report directly to the Mayor and City Council.
b.

Other AdtritI-. Exoept with the prior written consent of the COH,

Peck will n~t (i) accept any other employmen~ or (it) engage, directly or indiIectly, in any other busmess activity (whether or not pU1'sued fur pecuniary advantage) that is or may be i,n conflict
with, or that might place Peck in a pOsition In conflict with COH. However, absent a conflict of
intere5ts, and upon reasonable wrltten notice to the Mayor, Peck may teach, consult and accept

speaking engagements on a fee bams for her own account.

c.

Geo.eral ReatrietlOIl8 Oil Un. Duriq he Period of Employment, Peck

shall use Proprietary lnthrmation, and shall disclose Confidential Information. only for the

benefit of CPH and as is necessary to carry out her responsibilities under this Agmment.
Following temlination, Peck shall neither, directly or indirectly, use any Proprietary Information

nor disclose any Confidential Infurmatio~ except as expressly and specifically authorized in
writing by COR. The publication of any Proprietary Information through literature or speeches must be approved in advance in writina by COH. '

Page20f 10

0,3 / 1 1 / 2 0 0 9

08:44

7022672081

CITY OF HENpERSON

3.

CompeusatloD.

In consideration of the service5 to be rendered under this Agreement, Executive shall be entitled to the following:
a.

Salary. COB shall pay Peck WI compensation for services as City

Manager, durlna her first six months ofemployment, a ba:le salB1'Y at the annual rate of

$225,000.000. At the end of the first si:lC month period ofemployment, the Cotmcil shall conduct

a performance evaluation. Peck shall be eligible for a salary increase at that time ifapproved by

the Council. Thereafter, Peck l!Jball be given annual ~o~anee evaluations beginnina on the
first anniversary ofthls ~t. PCQk's salary shall be adJ~ted from time to tJme by the

Council upon such IU'U1U81 perfo:cmance evaluation. Salary 9hall be payable in accordance with .
the standard payroll procedures ofCOH.
b. Beuefitl. Peck sball be eliiible to participate in all COR benefit plans,

and receive perquisites o f employment a t least cqua110 those provided to other similarly ~ituated

administrative or executive employees, except it is expressly agreed by the partiea 1hat there shall ,

be no maxin:u.nn to the amount of sick: leave or annual leave accrued by Peck.

4. Admillfstrattve Leave

Peck Shall be allowed eight (8) days of paid administrative leave to be utilked in

accordance with City o f Henderson Administrative Policy 001.
5. Term.ination ofEmplOfllleDt
8.

Term.etloD by Death. Peek's employment shall tenninaW automatically

upon her death. COH shall pay to Peck's beneficiaries or estate, as appropriate, any
compensatlon then due anQ owing, and 'ball wntinuc to pay Peele's salary and benmt3, through

Page 3 otlO

~3/11/2009

08:44

7022672e81

QITY OF HENDFR50N

P~6E

~5{11

the second full month after her death. Thereafter,.all obligations of COH under this Agreement

shall cease. Nothing in this section shall affect any entitlement'ofPeck's heirs to the benefits of

any life insurance plan or other applicable benefits.
b.

TermlDatiQD by DisabWty. IfPcck is prevented from performing the

essential functions of the position, or without accommodation, by reason of physical or mental
. i~capa.oity for. a period ofmore than ninety (90) work dayS in the aggregate durlna any twelve

month period, then, to the extent permitted by Jaw, COli may terminate Peck's employment In
that event COH shall pay to Peck all compensation to whioh she is entitled' through the last day

ofthe month in which the 90U' day o f incapacity occurs. Thereafter, all o f the obligations of
CO~ under this ~ont

shall cease. Nothing in this Section shall affect Peck's rlgbts under '

any disability plan in which she is a participant. c.

.

Termbuation By COH Not For Cluse. At any time, COlI, by

appropriate Council action, may terminate Peck's employttlent without cause for any reason 11Qt prohibited by law, by providing Peck thirty (30) days' advance written notice, and further
provided that Peck shall, in addition to all compensation due and owing through the last day

actually worked, re~ve the fol1owing~
(i)

cOl-! shall pay P~k

8.

severance payment equal to the balance of

three (3) year term ofthis Agreement at her then current Base Compensation rate; in addition to
all sick leave and annual leave accroed.. The ~ payment will be made in the fonn of
salary continuation for that period (the ','Severance Period"), payable on the normal payroll

schedule followed by COHo

Page 4 oflO

03/11/2009

08:44

7022672081

CITY OF

HENDF.~5ON

PAGE

~5{1l

(Ii) .

The amount ofany payment provided fur in this Section S.c. shall

not be reduced, offset or subject to recovery by COH by reason of any C(>mpensation earned by'
p~ 88 the result ofemployment by another employer durlng the Severance Period so long ~

Peck is not in violation 9frnaterial provisions ofthis Agreement
,

.

6

Term.iDation By COB FoJ;" Cause. At any time, and without prior notice.,

COH, acting through the Council, may terminate Peck's employment For Cause (as defined
below). COH sball pay Peck all compensation then due and owing; thereafter, except for

Peck's right to mediation and/or bindJng arbitration. ~OH's obligations under this Agreement sball cease. Tennination for "Cause" shall mean termination ofPeck's emplO)?'I1ent because of
(i) conviction by a court ,?f competent jwisdiction of

misappropriation or embezzlement of

COH property or funds; (Ii) conviction orany felony involving moral tutpitudc. {iii)'intentio~ material breach ()f this Agreement; (iv) intentional and continued failure to substantially

perto'rm her duties under this Agreement, subject to Section 6(b) of this Agreement.
7. Termination Obllgationa
a.
,

Return of COW. PropeJ1)'. Peck hereby acknowledges and agrees that
,

all personal property, including, without limitation. all books. manuals, records, report$, note5,

contracts, Iists~ blueprint!, and other docwnentB, or materials. or copies thereof. and equipment
furnished to or prepared by Peck in the course ofor incident to her employxnent, belong to COH

and shall be promptly returned upon termination ofPeck's employment
'b. Cooperation III Peadtag Work. Following any termination ofPeck's

employment, she shall fully cooperate with COR in all matten relating to the winding up of
pending work on behalf o f c o n and the oTd~ly t.ransfer of dutiC6 to her successor.' Peck shall

Page 5 oflO

0.3/11/2009

08: 44

7022572081

CITY OF HENPFRSQN

PAGE

~7/1l

also cooperate in the defense of any action brought by a third party against COH that relates in any way to Peck's acts or omissions while employed by COH. If Peck's cooperation in the

defense of any such action requires more than ten (10) hours ofher time; Peck and C.OH shall
agree on appropriate remuneration for her time and expenses.
8.
Annual

evaluation

Peck shall be given an annual petformance evaluation in October of each year, and shall

be eligible for a salary increase at that time as approved by the COHo Such evaluation shaIl be
based upon performance standards developed jointly by the Henderson MaYor and City Council
and Peok..

9.

Boll....

SUbject to the results of the annual evaluation set forth in paragraph 8 herein. Peck shall

be eligible for a bonua as approved by the COR Council.
10.. Notices

All notices or other communications required or permitted hereunder shall be made in
writing and shall be deemed to have bten duly given ifdelivered by hand or mailed,'postage

prepaid, by certified or registered mail, mum receipt requested, and B~dressed WCOH lind to Peck. Peck's address is set forth on the signature page 10 this Agreement. Peck and COB shall be obligated to notify the other of any change in address. Notice of change o f address ball be effective only when made in accordance with thls Section.
11. Vebide ADowance

Peck shall be paid in addition to all compensation herein, a vehicle allowance o f &wen
Hund.tcd and Fifty Dollars ($750.00) per month during the term of this Agreement. Said
Page 6of'lO

0~/11/2009

08:44

7022572081

CITY OF

HENP~R50N

P~GE

58/11

amount t:naY, be adjusted based on the price of energy through mutual consent o f the parties .

·

12

Coat ofLfring AdJWltment

The City Manager shall be entitled to automatic cost ofliving salary increases in the
amount of 5% oftbe salary set forth in sub paragraph (a) herein commencing on the annual a.nniversary dates of the Effecltivc Date.

13.

Eatite Aanement

This Agreement is intended to be the ~ complete, and exolwivo statement of the

terms ofPeck's employment by COIl. This Agreement supersedes all other prior and
contemporancoU3 agreements and sta1ements pertaining in any manner to the employment of
p~

and it may no(:»e contradicted by evidence of any prior or contemporaneous statements '

or agreements. To the: ~t.ent that the practices, policies, orprocedurea ofCOR, now or in the future, apply to Peck and are inconsistent with the terms of this Agreement, the provisions o f this Agreement shall control.
14.
AmendJlleatJ, WaiVers

This Agreement may not be modified, amended, or terminated except by an instrument

in writing, signed by Peck and by a duly authorized representative of COH other than Peck. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement
shall operate as a waiver thereof: nor shall any single or partial exercise ofany right, remedy, or power under this Agreem.ent preolude any other or further exercise thereof, or the cx.ercise of

any other right, remedy, or power pro'Iided hmin or by law or in equity.

, Page 7 of10

03/11/2009

68:44

7622672081

CITY OF HENDERSON

PAGE

~~(1.

15.

Severabll1ty; Enforcement

Ifany provision ofthis Agreement, or tM application thereof to any person. place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions as applied to the parties hereto, or
other ~ places, and oircumstances 5ha11 remain in fuJ~ force and effect.

16.

Govendna Law

The validity, inteIpretatiOtlt enforceability, and perfonnattce o f this Agreement shall be .
governed by and 90nsttued in accordance with the Jaw o f the State o f Nevada.

17. . Arbitration
Any claim or ~ontroversybetween Peck and COR arising under or in connection with

this AgJ:eement shall be settled bY arbitration in accordance with the then cunent Employment Dispute Resolution Rules o f the American Arbitration Association and shall be the exclusive

remedy for all disputes including but not limited to Peck's compensation... COH and Peck
agree that arbitration shall be ~eld in or n~ Clark County, Nevada. and the arbi~ shall
have authority to award or ~t legal or equitable remedies. The decision ofthe Arbitrator
~b.all

be final end binding..

This Agreement to arbitrate tJurvives tennination of P~k's employment.
In any dispute arising under or in connection with this Apement, the prevailing party shall be entitled to recover all costs and reasonable attorney's fees.

Page 8 of to

~~/11/2009

08:44

7022572081

CITY OF

HEND~R~ON

1g,

General Expenses

COR recognizes that certain expenses ora non-personal and generally job affili~ted
nature are incurred by Peck and hereby ~ to pay said aeneral expenses In an amount not to exoeed Two Thousand DoUars ($2,000.00) per month (Twenty Four Thousand Dollars ($24,000.00) per year).

19,

Rettnbleat

In addition to the COR contribution to Peek's retirement account, Peck shall be eligible

for participation in the Nevada Public Employees Retirement System (PERS) 8$ part of the
Empl0yec3 Benefit and Executive Compensation Plan.. In addition to those benefits, employee
p~

shall have an additional six (6) months PBRS credit plU'Chased for her·after completion of

each year ofservice.

20.

Acknowledgment of PartiIS

The parties aoknowledge (a) that they have consulted with or have had the opportunity to
COr1$u1t with independent counsel of their own choice concerning this Agteement, and (b) that
they have read and understand the Agreement, are ful]y aware of its legal effect, and have
entered into it freely based on their ownjudgment and not on any reptemltations or promises other than those contained in this Agreement.
II

1/
II

II

1/

Page 9 of 10

03/11/2009

08:44

7022572081

CITY OF HENDERSON

21.

Date of Agreemenl

IN WITNESS WHEREOF, the parties hereto have executed. this Agreement 8.$ ofthe day and year first above written.

City ofHendcrson, Nevada

CWG.AC11ON
"
APPROVED AS TO FORM:

OCJ16D7

~~.

Page 10 oflO