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HomeMy WebLinkAboutResolution 2013-028 N.C.S. 3/18/2013 Resolution No. 2013-028 N.C.S. of the City of Petaluma, California 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. Resolution No. 2013-028 N.C.S. Page 1 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 FURTHER RESOLVED that the City Council of the City of Petaluma hereby authorizes the Mayor to execute said Agreement. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approv d s Council of the City of Petaluma at a Regular meeting on the 18'"day of March. f m. 2013.by the following vote: City Attorney AYES: Vice Mayor Albertson,Barrett,Mayor Glass. Harris, Healy, Kearney, Miller NOES: None ABSENT: None ABSTAIN: None I ATTEST: (�—/� l a 4* Pr/ .I City Clerk Mayor Resolution No. 2013-028 N.C.S. Page 2 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: WI-IEREAS, 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. Resolution No. 2013-028 N.C.S. Page 3 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 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. Resolution No. 2013-028 N.C.S. Page 4 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. 2. 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 government. City Manager shall have the 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. Resolution No. 2013-028 N.C.S. Page 5 4. Material breach of this Agreement is declared in writing by City Manager specifying the reasons therefore, but only if CITY has not 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 has not cured such declared material breach within thirty (30) days of receipt 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 the provisions of Section 24. 7. Termination for Cause: a. For purposes of this Agreement, cause shall mean: (I) willful and repeated failure to perform the duties of City Manager; (2) conviction of an employment related criminal act; (3) conviction of a felony; 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 53243, 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 pay pending an investigation, City Manager shall be required to fully reimburse City such 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. For purposes of subsection 7 (b), abuses of office 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. Resolution No. 2013-028 N.C.S. Page 6 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 equal to 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 elect to receive severance pay in equal payments, the number of such monthly payments shall not exceed seven (7). b. If CITY terminates City Manager with less than seven months 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) are subject to 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 the settlement 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 for termination shall 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 time that the other management employees of the CITY are paid. 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 benefits adjustment, if any, granted to the City's Department directors in the then current fiscal year. Resolution No.2013-028 N.C.S. Page 7 10. Benefits: Except as otherwise provided in this Agreement, the City Manager 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 unable to 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 Manager for 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 of (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 Manager's account 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). 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 during the term of this Agreement, premiums on term life insurance policies equal in amount to one and one-half 1-1/2 times the amount of the annual compensation package of City Manager described in Section 9. Resolution No. 2013-028 N.C.S. Page 8 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 directors of the CITY. City Manager shall have the right to select medical, dental and vision coverage from the same plans as are available to CITY Department 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. CITY 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's 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, CITY agrees to pay for, to the extent allowed by law, travel and subsistence expenses of City Manager for official travel, meetings and events as necessary and appropriate to continue the professional development of City Manager and to adequately represent CITY at gatherings such as the ICMA annual conference, California League of Cities meetings and conferences, and such other national,regional, state and local governmental groups and committees thereof in which 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 that are necessary for City Manager's professional development and for the good of CITY. Resolution No. 2013-028 N.C.S. Page 9 18. General Expenses: CITY recognizes that certain expenses of a non-personal nature are incurred by City Manager for the benefit of the CITY in the course of performance of City Manager's duties and hereby agrees to reimburse or to pay said general expenses, and C1TY's Finance Director is hereby authorized to disburse such monies upon receipt of duly executed expenses of petty cash vouchers, receipts, statements 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 the City Council, there will be a ninety (90) day period commencing upon the seating of new City 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 to 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 federal law, 23. Indemnification: a. CITY shall defend, hold harmless and indemnify City Manager against any tort, civil rights, personnel, discrimination, 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 City Manager's 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 fees and travel expenses when Resolution No. 2013-028 N.C.S. Page 10 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 given by deposit in the custody of the United States Postal Service, first class postage prepaid, addressed as follows: a. CITY: Mayor and City Council 11 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 personally served 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 notice, postage prepaid, with the United States Postal Service. 25. Performance Evaluations: a. City Council shall review and evaluate the performance of 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 criteria may be amended as the City Council may from time to time determine and in consultation with City Manager. The City Council shall conduct its evaluation of 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 of applicable law. Resolution No. 2013-028 N.C.S. Page II 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 written agreement 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 not be affected and shall remain in full force and effect. c. This Agreement shall be governed by the laws of the State of California. d. The parties agree that any ambiguity in this Agreement shall not be construed 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. CITY MANAGER CI"I'Y 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 Resolution No. 2013-028 N.C.S. Page 12