Loading...
HomeMy WebLinkAboutStaff Report 4.B 03/18/2013 74genda/Itevw#4.3 SALU`LL W • /85a DATE: March 18, 2013 TO: Honorable Mayor and Members of the Council FROM: John C. Brown, City Manag P SUBJECT: Resolution Approving the Second Amended Employment Agreement with the City Manager RECOMMENDATION It is recommended that the City Council adopt the attached resolution approving the Second Amended At-Will Agreement for Employment of the City Manager, and authorizing the Mayor to execute said Agreement. BACKGROUND In February 2008, the City Council approved, and authorized the Mayor to execute, an at-will employment agreement (the Agreement) with the City Manager effective April 1, 2008. The Agreement provides for the City Manager's working conditions and compensation, and has a five- year term ending March 31, 2013. Key features of the Agreement were: • a five year term, which can be extended with notice, and mutual agreement of the parties; • at-will termination by the City Council, with or without cause; • an annual base salary of$208,000; • a benefit package (retirement, insurances, leaves) generally reflective of that available to City department heads; • a seven-month severance package, payable only for termination without cause • exclusive use of a hybrid or zero-emissions vehicle; • payment of dues, subscriptions and associated travel, for continuing professional development; • a relocation allowance; • indemnification for actions taken in performance of job duties; and • the requirement that annual performance evaluations will be conducted. The February 2008 Agreement contained a provision to pay the Employee's PERS contribution. That contribution amounted to seven percent(7%) of base salary, but under PERS' regulations was unenforceable. To honor its commitment the City Council, in May 2008, approved the First Amended At-Will Agreement for Employment of the City Manager. The Amendment provided for a payment equal to seven percent of base salary into a 40l retirement account. Agenda Review: City Attorney Finance Director City Manager In March 2010, the City Council approved Amendment 1 to The First Amended Agreement. That amendment implemented a temporary pay reduction of 3.1 percent from December 28, 2009 through June 26, 2011, consistent withthe programoffurloughs and pay reductions implemented on a City-wide basis as a budget reduction measitre. That`ainendment made no permanent changes to the First Amended Agreement, and_expited in June 2011. No other amendments to the Agreement have been made since 2010. The "Expiration" provision of the Agreement allows either party to seek extension of the expiration date, by providing written notice 180 days in advance of the expiration date, and that upon receipt of notice the parties will commence negotiation discussions. DISCUSSION On October 1, 2012 written notice of interest in extending the Agreement was given, triggering the requirement to commence negotiation discussions. These discussions were deferred until the 2013 City Council could be seated in January 2013. In January the Council began an annual employee performance evaluation and, on the basis of anticipated satisfaction with performance and in recognition of the March 31, 2013 expiration date, appointed a conimittee to act as its labor negotiators in discussions to extend the Agreement. Negotiations commenced in late February and were completed earlier this month. As the Council is sufficiently satisfied with employee performance to justify extending the Agreement, a Second Amended Agreement was negotiated and prepared for Council approval. Attached, for the Council's review and approval is a Second Amended At-Will Agreement for Employment of the City Manager. Substantive changes from the First Amended Agreement are detailed, by Section, below. Section 2. Term. The current term is set to expire on March 31, 2013. The amended term is extended to June 30, 2019. Section 4. Duties and Responsibilities. Previously the City Manager was required to devote time and attention solely to City business. This is still the case. An amendment to this section, however, allows the City Manager, with advance permission from the City Council, to occasionally engage in teaching or wilting. These activities can only be conducted during the City Manager's time off. Section 5. Termination/Severance. This section originally addressed general termination provisions, termination for and without cause, and severance. Current amendments segregate these provisions into: "Section 5. Termination of Employment'; "Section 6. Termination Without Cause"; "Section 7. Termination with Cause`;!and "Section 8. Severance". These changes trigger re-ordering the numbering throughout the remainder of the document. Within Sections 5 through 8, changes from the former Section 5 are as follows: • Section 5. Subsection (b) required the City to provide the City Manager sixty (60) days notice when termination is without cause. This remains unchanged. Subsection (c) is added to require ten (10) days notice when considering termination for cause. This provision allows the City Manager an opportunity to address the Council's charges before a final determination is made. Subsection (b) is amended only to reference this additional noticing requirement. 2 The previous Agreement also required the City to pay the City Manager, upon separation for any reason, all accumulated vacation and administrative leave and unused floating holidays. Subsection (d) maintains, and clarifies that.requirement. • Section 6. No changes from prior provisions related to Termination without Cause. • Section 7. Changes at Subsection (a) remove superfluous language from the definition of "cause"; all former definitions are contained within the four reasons that continue to be stated in the amendment. One additional change in this subsection clarifies,by replacing"similar governmental agency" with "successor agency", that determination of wrong-doing by independent agencies will also apply if those agencies or their duties are subsequently changed or performed by another agency. An extensive Subsection (b) is added, to incorporate language required by 2012 changes to the California Government Code. In an instance where the City Manager is convicted of a crime involving an abuse of office or position, where the:Manager may have been placed on Administrative leave pending a court decision, or where severance was paid, or where legal defense fees were paid by the City, the City Manager shall be required to repay those costs. • Section 8. This section is modified to incorporate the requirements of Government Code Section 53260, although the maximum severance package remains unchanged from the First Amended Agreement. Section 53260 limits the severance an employee working under contract with a local agency may receive to an amount equal to the employee's monthly salary multiplied by the number of months remaining in the employment agreement, with a maximum of eighteen months. In this Agreement, the maximum is limited to seven (7) months, as per the prior Agreement. In addition language in this section was also modified to replace a statement that determination for cause shall be at the sole discretion of the City Council and consistent with the for-cause provisions, with a statement that determination for cause shall be consistent with the for-cause provisions. This is an immaterial change, as is the numeric change to the for-cause references. Former Section 9. Moving and Relocation Expenses. This Section is removed, as it is no longer applicable. Current Section 9. Compensation. Base Compensation remains at $208,000 per year, as per the original Agreement. Subsection (c) is added to allow the City Manager's base salary be increased by the same percentage and at the same time as any increase that may be granted to City Directors, if their salaries are increased. Section 11. Disability. This Section previously stated that in the event the City Manager is incapacitated for six weeks beyond the time that the employee's accumulated sick leave is exhausted, for physical or mental health reasons, they may be terminated with no severance paid. The amendment recognizes that the City Manager may recover from a serious illness exceeding in duration the former limit, and be capable of returning to work. Six weeks is changed to "90 days". Section 12. Use of Automobile. The previous Agreement obligated the.City to provide the City Manager with the exclusive use of a hybrid or zero emissions vehicle and to maintain insurance and fuel the vehicle at City expense. Given the City's-economic condition these past five years, this benefit was foregone. Amendments to this Section, formerly Section 10, eliminate the vehicle purchase, and require instead the City make a vehicle available for the City Manager's use on City business. If a vehicle is not available for use, the City Managermay use a personal vehicle and seek reimbursement from the City at the rate set by the Internal Revenue Service. Section 13. Vacation, Sick Leave. and Holidays. There are no changes from the previous Agreement in the amounts accrued by the City'Manager. Vacation accrual for the City Manager is the same as is available to City department heads. Modifications to Subsection (a) state accumulation limits in hours per month rather than days per month and weeks per year, which reflects the schedule contained in the Unit 8 (department heads) Compensation Plan. For employees receiving Administrative Leave rather than Overtime or Comp. Time, balances of 40 hours or less showing on the books at June 30`' were historically required to be paid out, with balances in excess of 40 hours lost. While it is preferred that this leave is exhausted before June 30th, this is not always possible and pay-outs (which are often not budgeted), create expenditure problems. Last year other bargaining units agreed to MOU changes that allow the option for up to 40 hours of this leave, with no cash value, to he carried into the next fiscal year to avoid or reduce payouts. Changes to this contract, at Subsection (c) allow the City Manager to carry up to 40 hours of unused Administrative Leave into the following fiscal year so the City does not need to pay up to that balance at year's end. . Any carried-over Administrative Leave is not subject to pay-out upon separation, and must be used or lost in the year following that in which it was earned. The forgoing represents the substantive changes from the First, to the Second Amended Agreement. As indicated, expanding Section 5 created renumbering throughout the remainder of the document. In addition a handful of other, very minor, changes were made so that provisions reflect continuing rather than initial employment status. These Amendments, as previously discussed, were mutually agreed upon by the City Manager and the Council's Committee, and are recommended by the Committee to the City Council for approval. FINANCIAL IMPACTS The recommended document is will likely result in savings from the First Amended Agreement. Removing the obligation to purchase a hybrid or zero emissions vehicle will save the purchase price of approximately $25,000. It will also save the annual operating costs of the vehicle, although those savings would be partially offset over time if mileage reimbursement's sought. Cost could increase if Department directors are granted an increase in compensation;and the same increase is granted to the City Manager, although the prospect of such increases does not appear eminent. ATTACHMENTS 1. Resolution 2. Exhibit A to Resolution - Second Amended At-Will Agreement 4 ATTACHMENT 1 Resolution No. 2013- N.C.S. of the City of Petaluma, California A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING THE SECOND AMENDED AT-WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER WHEREAS, CITY and City Manager entered an At-Will Agreement for Employment of City Manager dated February 7, 2008 and effective April 1, 2008; and, WHEREAS that Agreement was amended for the first time on May 21, 2008; and WHEREAS, the First Amended Agreement was amended in March 2010 to implement a temporary pay reduction taken by the City Manager as part of a City-wide program of pay reductions and furloughs that were effective December 28, 2009 through June 26, 2011; and WHEREAS, the First Amended Agreement has an expiration date of March 31, 2013; and WHEREAS, the First Amended Agreement provides the parties may agree to amend the Expiration Date; and WHEREAS, CITY desires to continue to employ the services of John C. Brown as the City Manager for CITY; and, WHEREAS, John C. Brown desires to continue his employment as City Manager of CITY: and WHEREAS, notice required to extend the Expiration Date was provided, and the Parties have in good faith negotiated amendments to the Agreement; and WHEREAS, the City Council and City Manager John C. Brown agree to the terms of Employment, Compensation, and Benefits relating to the position of City Manager set forth in the Second Amended At-Will Agreement for Employment of City Manager attached as Exhibit A. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby approves the Second Amended At-Will Agreement for Employment of City Manager, attached as Exhibit A and incorporated herein by reference. BE IT FUTHER RESOLVED that the City Council of the City of Petaluma hereby authorizes the Mayor to execute said Agreement. 5 EXHIBIT A SECOND AMENDED AT-WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER This Agreement is made and entered into this day of 2013, by and between the City of Petaluma, California ("the CITY"'), a charter city, and John C, Brown ("City Manager") This Agreement (the "Agreement") shall have an effective date of April 1, 2013 ("Effective Date"). In consideration of the mutual covenants contained herein, the parties agree as follows: WHEREAS, CITY and City Manager entered an At-Will Agreement for Employment of City Manager dated February 7, 2008 and effective April 1, 2008 ("February 7, 2008 Agreement"); and, WHEREAS, that Agreement was amended for the first time on May 21, 2008; and WHEREAS, the First Amended Agreement was amended in March 2010 to implement a temporary pay reduction taken by the City Manager as part of a City-wide program of pay reductions and furloughs that were effective December 28, 2009 through June 26, 2011; and WHEREAS, the First Amended Agreement has an expiration date of March 31, 2013; and WHEREAS, the First Amended Agreement provides the parties may agree to amend the expiration date, in writing, pursuant to notice having been provided 180 days prior to the expiration date and subject to negotiations; and WHEREAS,notice was given 180 days prior to the expiration date and the parties have negotiated amendments to the Agreement that are mutually agreeable; and WHEREAS, CITY desires to continue to employ the services of John C. Brown as the City Manager for CITY; and, WHEREAS, John C. Brown desires to continue his employment as City Manager of CITY. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1. Appointment of City Manager: The City Council of the CITY hereby appoints John C. Brown to the position of City Manager of the City of Petaluma, California. 6 2. Term: a. Duration and Effective Date. The term of this Agreement shall commence on April 1, 2013 and, if not terminated earlier in accordance with section 5, this Agreement will expire on June 30, 2019. ("Expiration Date"). b. Extending the Expiration Date. The parties to this Agreement may agree to amend the Expiration Date in writing. Should either party desire to extend the Expiration Date, written notice must be provided to the other party 180 days prior to the Expiration Date. Upon written receipt of said notice, the parties shall commence discussions and negotiations. The parties have no obligation to agree to extend the Expiration Date. Any extension of the Expiration Date must be in writing in accordance with section 24 (a) of this Agreement. 3. At-Will Employment: City Manager is an at-will employee in accordance with California Labor Code section 2922, and shall serve at the pleasure of the City Council. The terms of CITY's Personnel Rules, Policies, Procedures, Ordinances and Resolutions shall not apply to City Manager, and nothing in this Agreement is intended to, or does, confer upon City Manager any right to or expectation of any right or property interest in continued employment. If a decision to terminate City Manager's employment is made by the City Council, whether with or without cause, the City Manager shall be entitled to only that due process as is provided by City Charter, ordinance, or this Agreement. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of City Manager to resign at any time from his position with CITY, subject to section 5(a) of this Agreement. 4. Duties and Responsibilities: a. City Manager shall commence City Manager's duties under this Agreement on April 1, 2013. b. City Manager shall serve as the City Manager of the City of Petaluma, and shall be vested with the powers, duties and responsibilities and perform the functions and duties specified under the laws of the State of California, the Petaluma City Charter and the Petaluma Municipal Code, and the ordinances and Resolutions of the CITY and other applicable law, and such other duties and functions as the City Council may from time to time assign. c. City Manager agrees to remain in the exclusive employ of CITY, and devote his full productive time and attention to CITY's business, during the term of this Agreement. The Agreement, however, shall not be construed to preclude occasional teaching or writing performed by City Manager during City Manager's time off. City Manager shall seek and receive permission, in writing, from the City Council before undertaking such work during his time off. d. The CITY recognizes that City Manager is expected to devote necessary time outside normal office hours to business of the CITY. City Manager shall be 7 allowed to take reasonable time off for such work, as City Manager shall deem appropriate during normal office hours. As an exempt employee, City Manager shall not receive overtime or extra compensation for work performed outside normal business hours. 5. Termination of Employment: a. City Manager may terminate this Agreement, with or without cause, by giving the CITY a minimum of sixty (60) days written notice in advance of termination, unless the parties agree otherwise. During the period following notice of termination and until the termination becomes effective, all the rights and obligations of the parties under this Agreement shall remain in full force and effect. City Manager will not be entitled to receive any severance pay if his resignation is voluntary. b. The City Council may terminate this Agreement, with or without cause. City Council shall give City Manager a minimum sixty (60) days prior written notice of termination provided, however, that if City Manager is terminated for cause, as defined in this Agreement, the sixty (60) day written notice requirement shall not apply and City Manager may be terminated with notice as provided in Section 5 (c). c. Prior to terminating this Agreement for cause, pursuant to Section 7, the City Council shall give City Manager at least ten (10) days prior written notice of the charges. Within the ten-day period, but not earlier than five days after the notice has been given, the City Council shall meet with City Manager in closed session and give City Manager an opportunity to address the City Council regarding the charges. After hearing City Manager's response to the charges, the City Council shall make a decision as to whether to terminate the Agreement and shall inform City Manager in writing of its decision. d. Upon separation from CITY for any reason, City Manager will be paid for all earned, accrued, and unused vacation, administrative leave, and floating holidays, without limit. 6. Termination Without Cause: a. For the purpose of this Agreement, termination without cause shall be deemed to occur when: I. The majority of the governing body votes to terminate the City Manager at a duly authorized public meeting without cause, as defined in Section 7 of this Agreement. ?. The City Council,, the citizens or the Legislature acts to amend any provisions of the City Charter, codes, or other enabling legislation pertaining to the role, powers, duties, authority, or responsibilities of the City Manager's position that substantially changes the form of 8 government. City Manager shallhavethe.;right to declare that such amendments constitute termination. 3. The City Council reduces the.base salary, compensation or_any other financial benefit of the City Manager(unless it:is applied in no greater percentage than the average reduction-of all department directors). Such action will be regarded as a termination,. 4. Material breach of this Agreement is.declared:in writing by City Manager specifying the reasons therefore, but only if CITY hasnot cured such declared material breach within thirty (30) days of receipt of notice of the declared material breach. CITY may also terminate this Agreement for material breach declared in writing by CITY specifying the reasons therefore, but only if City Manager hascnot cured such declared material breach within thirty (30) days ofreceipt of notice of the declared material breach. However, termination of this Agreement'by CITY for uncured, declared material breach in accordance with this provision will not constitute termination without cause and'City Manager will not be entitled to severance pursuant to Section 8 of this Agreement upon such termination. Written notice of a breach of this Agreement shall be provided in accordance with`theprovisions of Section 24. 7. Termination for Cause: a. For purposes of this Agreement; cause shall mean: (1) willful and repeated failure. to perform the duties of City Manager; (2) conviction of employment related criminal act; (3) conviction of adfelony; or(4) a.finding by a court,jury, State or Federal Attorney General, Fair Political Practices Commission, or any successor agency, that City Manager engaged in intentional or negligent misconduct in relation to the performance of City Manager's duties. b. Pursuant to Government Code Sections 63243, 53243:1, and.53243.2, if City Manager is convicted of a crime involving an abuse of his office or position all of the following shall apply: 1. If City Manager is provided with administrative leave paypending;an investigation, City Manager shall berequired;to fullyir'eimburseiCitysuch amounts paid. 2. If CITY pays for the criminal legal defense of.City Manager,;City Manager shall be required to fully reimburse CITY such amounts paid. 3. If this Agreement is terminated, any Severance Pay and Severance Benefits related to the termination that City Manager may receive from CITY shall be fully reimbursed to CITY or void if not yet paid to City Manager. 9 For purposes of subsection 7 (b), abuses of offce;or position means either A. an abuse of public authority, including waste.fraud,-and violation of the law under color of authority; or B. a crime against public justice, including but not limited to, a crime described in Title 7 (commencing with Section 92) of Part 1 of the California Penal Code. 8. Severance Pay: a. If CITY terminates City Manager during the term of this Agreement seven months or more prior to the Expiration Date and without cause in accordance with Section 6, then City Manager shall be entitled to a severance payment,equahto seven (7) months of base salary at the rate in effect at the time of termination,plus'.CITY's-share of the cost of continuing health, dental, and vision insurance.for City Manager and all dependents as provided in Section 14(b) for seven (7) months, At City Manager's election, and pursuant to City Manager's written instructions at the time of severance; severance pay shall be paid either in a lump sum cash payment within thirty (30)days of the date:of termination, or in equal monthly payments. Should City Manager eleetto=receive severance pay in equal payments, the number of such monthly payments shall not exceed seven'(7). b. If CITY terminates City Manager with:lessthan sevenmronths-remaining until the Expiration Date and without cause in accordance with Section 6, then'the maximum severance City Manager may receive shall be an amount equal to City Manager's monthly salary multiplied by the number of months left,on,the unexpired term of the Agreement, plus CITY's share of the cost of continuing health, dental, and vision insurance for City Manager and all dependents as provided in Section 14 (b) for the same duration of time. c. All payments required under Sections 8 (a) and''8 (b),aresubjectto and shall be interpreted to comply with the limitations set forth in Government Code Section 53260. CITY's share of the cost of Health, Dental and Vision benefits shall continue for the same duration of time as covered in thesettlement or until the City Manager finds other employment, whichever occurs first. d. If CITY terminates City Manager for cause, he will not be entitled to any.severance' payment. The determination of whether.`there-is cause Tor tertninatiomshall be;consistent with Section 7 and/or 6(a)(4). 9. Compensation: a. Base Salary. City agrees to pay City Manager an annual;base salary of$208,000, payable in installments at the same timethat the'other,nianagetnent employees of the CITY are paid. 110 b. CITY may increase City Manager's compensation in such amounts and to such extent as the City Council may determine is•desirable:on the basis-of any annual salary review of City Manager. c. CITY shall adjust City Manager's compensation,by the same percentage of the annual salary adjustment and behefits adjustment, if any, granted to the City's Department directors in the then current fiscal year. 10. Benefits: Except as otherwise provided in this Agreement, the.CityManager shall be entitled to the same level of benefits that are enjoyed by department directors of CITY as provided in the City Charter, Municipal Code, Personnel Rules and Regulations, approved Compensation Plans, or by practice. 11. Disability: If City Manager is permanently disabled or otherwise unableato perform his duties because of sickness, accident, injury, mental incapacity or health for a period of ninety (90) successive days beyond any accrued sick leave, CITY shall have the option to terminate this Agreement. Upon termination pursuant to:this provision. CITY shall have no obligation to pay severance benefits pursuant;to Section 8. 12. Use of Automobile: City Manager shall have the use of CITY-owned vehicle,to conduct CITY business. If such vehicle is not available, City'Manager may, at.his:election, use his privately owned vehicle, in which case City shall reimburse City Managenfor actual..business travel at the maximum amount per mile then allowed by the Internal Revenue Service. 13, Vacation, Sick, and Holiday Leave: a. City Manager shall accrue over time, and have Credited to City Manager's personal account, vacation at the rate often (10) hours per month up to a maximum of eleven and one-third (11-1/3) hours per month, consistent with the accrual schedule in the approved Compensation Plan-for CITY'Department directors. b. Sick leave shall accrue and be credited to City Manager's personal account as-with CITY Department directors. c. Administrative leave shall be credited to City Managei'siaccount at the rate of 12 days per year. City Manager may carry forward up to forty(40) hours of unused administrative leave into the next fiscal year City Manager shall not maintain a balance of more than 136 hours of administrative leave: Carry forward administrative leave may only be taken as paid'time off;has no cash value, and shall not be included in the totals subject to payment under Section 5 (d). 11 d. Holidays shall be credited to City Manager's account as with CITY Department directors 14. Disability. Health, and Life Insurance: a. CITY agrees to purchase and to"pay duringthe`term:of this Agreement, premiums on term life insurance policies equal-iinamount to one and:one-half 1-1/2 times the amount of the annual compensation package of City Manager described in Section 9. b. CITY agrees to provide and to pay the CITY's share of premiums for medical, dental, and vision insurance for the City Manager and his dependents equal to that which is provided to all department directorsof the CITY. City Manager shall have the right to select medical,;dental and vision coverage from the same plans as are available to CITY Departient directors. c. CITY agrees to have in force and make required premium payments for City Manager's participation in the CITY's current group disability plan. 15. Retirement: a. City has previously enrolled City Manager into the California Public Retirement System, (PERS). City agrees to'make all the appropriate contributions on the City Manager's behalf, for the employer share required, and to contribute on behalf of City Manager seven percent(7%) of the compensation amount specified in provision 9(a) of this Agreement, as such compensation may be-amended from time to time, into the City of Petaluma 401 (A) Government'Money'Purchase:Plan and Trust. b. C1TY agrees to maintain all necessary agreements provided by ICMA Retirement Corp. ("ICMA-RC") for City Manager's continued participation in said ICMA-RC retirement plan and agrees to pay an amount designated by City Manager and allowed by law into the ICMA-RC on City Manager's behalf in an equal proportionate amount each pay period, and to transfer ownership to succeeding employers upon City Manager'sy'resignation or termination. 16. Dues and Subscriptions: Subject to budgetary approval by the CITY, CITY agrees to pay for professional dues and subscriptions of City Manager necessary for City Manager's continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for CITY MANAGER'S continued professional participation, growth and advancement and for the good of CITY. 17. Professional Development: a. Subject to budgetary approval by CITY,1CITY agrees to pay for, to the extent allowed by law, travel and subsistence expenses of City Manager for official 12 travel, meetings and events-as necessary and appropriate to continue the professional development of City Managerand to;adequately represent CITY at gatherings such as the ICMAannual:conference, California League of Cities meetings and conferences, and such,other natibnal,regional, state and local governmental groups and committees thereof in wl ibh City Manager participates as a representative of CITY. b. Subject to budgetary approval by CITY°, CITY agrees to pay for, to the extent allowed by law, travel and subsistence expenses of City Manager for short courses, institutes and seminars,thatare,necessary for City Manager's professional development and for the good of CITY. 18. General Expenses: CITY recognizes that certain expenses of a non-personal nature are incurred by City Manager for the benefit of the CITY imthe course of performance of City Manager's duties and hereby agrees to reimburse or to pay,said general expenses, and CITY's Finance Director is hereby authorized to disburse such monies upon receipt of duly executed expenses of petty cash vouchers, receipts,statetnents or personal affidavits to the extent allowed by law and subject to budgetary approval. 19. Bonding: CITY shall bear the full cost of any fidelity or other bonds required of City Manager under any law or ordinance. 20. Continuity: In the event of a change of the elected representation of theiCity Council,there will be a ninety (90) day period commencing upon the seating_of newCity Council members when the City Council can take no action regarding the provisions of City Manager's contract, unless both parties agree or the action is for cause. 21. Attorney Fees: In the event of any suit or action by either party under this Agreement, the prevailing party in such suit or action shall be entitled to reasonable attorney fees and costs to be fixed by the court. 22. Other Terms and Conditions of Employment: The City Council, in consultation with City Manager; shall fix any other terms and conditions of employment, as it may determine:from-time tb.time, relating to the performance of City Manager,provided such terms,and'conditions are not inconsistent with or in conflict with the provisions of this Agreement; the Petaluma City Charter, the Petaluma Municipal Code or any other applicable state or federahlaw, ;13 23. Indemnification: a. CITY shall defend, hold harmless and indemnify City Manager against any tort, civil rights, personnel, discrimination, professional liability claim of demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of the City Managers:duties:in accordance with the provisions,of California Government Code'Section 825 and following as amended from time to time„and provide;a defense in accordance with California Government Code Section 995 and following. Notwithstanding anything to the contrary in this Agreement,,CITY reserves the right to refuse to provide a defense of City Manager for the reasons set forth in California Government Code section 995.2 or other applicable provisions of law. b. Following termination or expiration of this Agreement,for any reason,CITY agrees to pay City Manager reasonable consulting feesand travel expenses when City Manager serves as a witness, advisor and/or consultant to CITY regarding pending litigation. 24. Notices: Notices pursuant to this Agreement shall be in writing giyen,by deposit in the custody of the United States Postal Service, first class postage:prepaid, addressed as follows: a. CITY: Mayor and City Council I I English Street Petaluma CA 94952 b. CITY MANAGER: John C. Brown City Manager 11 English Street Petaluma CA 94952 Alternatively, notices required pursuant to this Agreement May be personallysserved'in the same manner as is applicable to civil judicial process: Notice shall be,deemed`given as of the date of personal service or as of the.date of-deposit of such written-mince, postage prepaid, with the United States Postal Service. 25. Performance Evaluations: a. City Council shall review and evaluate the performanceof City Manager at least once annually in advance of the;adoption of the.annual operating budget. Said review and evaluation shall be in accordance with:specific criteria developed jointly by CITY and City Manager. Said criteriatniay b"e amended as,the City Council may from time to time determine and in consultation With City Manager. 14 The City Council shall conduct its evaluatiomof City Manager in closed session. The City Council shall provide City Manager with the written evaluation,-and provide an adequate opportunity for City Manager to discuss City Manager's evaluation with City Council. b. In recognition of accomplishments.and objectives, and satisfactory performance, a potential annual merit increase shall be negotiated. c. Annually, the City Council and City Manager shall define such goals,and performance objectives as they determine necessary'for the=proper operation of CITY and the attainment of the City Council's policy objectives and shall further establish a relative priority among those various goals:and-objectives, said goals and objectives to be reduced to writing;.;Said goals and objectives shall generally be attainable within the time limitations as;specified_in the annual operating and capital budgets and appropriations provided. d. In effecting the provisions of this section, the City Council and City Manager mutually agree to abide by the provisions-ofapplicable law. e. City Manager will timely cause to be'placed.on-the.City Council agenda each year a "closed session" for purpose of City Manager's performance evaluation. 26. Miscellaneous: a. The text herein shall constitute the entire agreement between the parties. This Agreement may not be modified, except by writtemagreement executed by both parties. b. If any provision, or any portion thereof(contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement;,or portion thereof, shall be deemed severable, shall nottbe'affected and shall remain in full force and effect. c. This Agreement shall be governed by the laws oftleState of California. d. The parties agree that any ambiguity in this Agreement shall not:be„eonstrued Or interpreted against, or in favor of either party. e. This agreement shall be binding:upon and inure to the benefit of the heirs at law and executors of City Manager. ;15 CITY MANAGER CITY By By John C. Brown. City Manager David Glass, Mayor DATED: DATED: ATTEST: Claire Cooper City Clerk APPROVED AS TO FORM: Eric W. Danly City Attorney 16