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HomeMy WebLinkAboutResolution 2003-059 N.C.S. 03/24/2003Resolution No. 2003-059 ~J,~,S, of the City of Petaluma, California. APPOINTING MICHAEL BIERMAN CITY MANAGER, APPROVING AGREEMENT FOR EMPLOYMENT OF CITY MANAGER, AND AUTHORIZING MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, Michael Bierman was appointed to the position of Interim City Manager effective August 19, 2002; and, WHEREAS, the City Council desires to appoint Michael Bierman as Petaluma City Manager; and, WHEREAS, the City Council and Michael Bierman desire to agree to an employment agreement outlining the terms of the employment, compensation and benefits relating to the position of City Manager; and, WHEREAS, Michael Bierman desires to accept employment as the City Manager of the City of Petaluma. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby appoints Michael Bierman City Manager of the City of Petaluma. BE IT FURTHER RESOLVED that the City Council of the City of Petaluma hereby approves the AGREEMENT FOR EMPLOYMENT OF CITY MANAGER, a copy of which is attached as Exhibit A. BE IT FURTHER RESOLVED that the City Council of the City of Petaluma hereby authorizes the Mayor to execute said AGREEMENT FOR EMPLOYMENT OF CITY MANAGER on the City's behalf. 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 Approved as to Council of the City of Petaluma at a (Regular) (Adjourned) (Special) meeting on the 2.4.`h.......... day of March , 20 03, by the t following vote: ••••••••• ••~ •••••••••• •Y•••••••• i Attorne AYES: Canevaro, Mayor Glass, Harris, Healy, Moynihan, Vice Mayor O'Brien, Torliatt NOES: None ABSENT: None ATTEST: .......................... ............ .... .. ..... .................... .... .. ........ ' • .. ............ City Cl rk Mayor Council File ................................... Res. No. ....._~.Q.Q~r.O.S~......_N.C.S. ,; .~ Exhibit A AGREEMENT FOR EMPLOYMENT OF CITY ~VIAiVAGER ~~-' This Agreement is made and entered into this ~~ day of ~(.f~C~w' 2003, by and between the CITY OF PETALUMA ("the C1TY"), a charter city, and MICHAEL BIERMAN ("BIERMAN"): This Agreement (the "Agreement") shall have an effective date of April 1, 2003 ("Effective Date"). In consideration of the mutual covenants contained herein, the parties agree as follows: WHEREAS, City desires to employ the services of BIERMAN as the City Manager for CITY; and WHEREAS, it is the desire of .the Petaluma C'ity.Council (the governing board of CITY) to provide certain benefits,.. to establish certain conditions of employment and to set working conditions of BIERMAN; and WHEREAS, BIERMAN desires to accept employment as City Manager of CITY; and NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: Appointment. of City Manager: The City Council of the CITY hereby appoints BIERMAN to the position of City Manager for the Petaluma, California. 2. Term ofAgreement: The term of this Agreement shall be from the Effective Date for a period of five (5) years or until terminated by either party in accordance with the provisions of paragraph 5. The parties to this Agreement may agree to extend or amend the term of this Agreement in writing. Should either party desires to extend the term of this Agreement, either party shall provide written notice to the other party 180 days prior to the expiration of the term of this Agreement. Upon receipt of said notice the parties shall commence discussions and negotiations, provided that there is no obligation on the parties to agree to any extension and any such extension agreed upon by the parties must be in writing. 3. At-Will. Employment: BIERMAN. is an at-will employee who shall serve at the pleasure of the City Council. The terms of the CITY's Personnel Rules, Policies, Procedures, Ordinances or Resolutions shall not apply to BIERMAN, and nothing in this .agreement is intended to, Agreement for Employment of City Manager Page 1 of 9 (Between BIERMAN and City of Petaluma) Reso, No. 2003-059 N.C.S. or does, confer upon B.I,ERMAN any right to any property interest in continued' employment, or any due process right to a hearing before or after the decision to terminate his employment for good cause. Nothing; in this agreement shall prevent, limit or otherwise .interfere with the right of BIERMAN to resign atany time from h'is.positon with CITY, subject only to the provisions set forth in 'section 5 of this agreement. 4. Duties:and Responsibilities: a. B1'ERMAN shall commence his duties on or before April 1, 2:003. b. BIERMAN shall perform the functions and duties specified under the laws of the State of Ca_lifo"rnia, the. Petaluma City Charter and the-Petaluma Municipal Code,. and the Ord;riances and Resolutions of the CITY, a'nd °such other duties and functions as the City Council may from time-to-.time.: assign; BIERMAN shall serve as the City Manager of the CITY, and he shall, be vested with the powers., duties and responsib`ilifies set forth, in the Petaluma City Charter and Petaluma. Municipal Code and California law. ' c. ' BIERMAN agrees to devote h'is productive time, ability a_ntl attention to the CITY's business during the term of this Agreement. BLERMAN shall not hold secondary employment, .and shall be employed exclusively by the CITY.. However, the CITY recognizes hat B1ERMAN is expected to devote necessary time outside normal office hours to business of the CITY. BIERMAN shall be allowed to.take reasonable time off for such work, as he shall deem appropriate during normal office hours. As an exempt employee, BIERMAN shall not receive overtime or extra compensation for work performed outside normal business hours. 5. Termination of'Employment and Severance: a. BIERMAN may terminate this Agreement, with or without cause,; by giving the C1TY sixty (60) days written notice in advance of termination unless the parties agree otherwise. During. the notice period, all ffie rights and obligations of ;the parties. under this Agreerent shall remain in full force and effect BLERMAN wills not receive any severance pay if BIERMAN's resignation is solely voluntary on BiERMAN's part. b, The City .Council may terminate this. Agreement,. with or without cause. City Council shall: give BIERMAN a minimum sixty (60) days wrifiten notice prior to terminating BLERMAN as City Manager, provided however'that if BLERMAN 'is terminated for cause as defined in this agreement, the sixty (60) day written: notice` requirement shall not apply and BIERMAN may be terminated effective immediately upon written notice. c, If the, CJTY discharges BIERMAN'without;cause during~the term of this Agreement and BIERMAN is willing and able to perform his duties under'this Agreement, then BLERMAN shall be entitled to a severance payment equal to the Agreement for Employment,of City Manager Page 2 of,9 (Between BIERMAN and Cify of Petaluma) = Reso. No. 2003-059 N.C.S. ~_ annual compensation package amount'of:$1'95.,.00.0.-This provision will not apply in the event that CITY discharges BIERMAN for cause; in which case BIERMAN will not be entitled to any severance payment or continuation of benefits. The determination of whether there is good cause for termination shall be in the sole discretion of the City Council. d. For purposes of this agreement,, cause shall. mean: (1) 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) malfeasance materially related to the job. 6. Compensation: CITY agrees to pay BIERMAN for his services tendered pursuant hereto an annual compensation package of $195,000.00, to be divided at option of BIERMAN to the extent allowed by law, into. annual base salary, BIERMAN's share of PERS, ICMA- RC deferred compensation, .and payments for health, dental and vision insurance. The payment schedule shall be payable in installments at the same time as the other management employees of CITY are paid. In addition, CITY may increase said compensation package of BIERMAN in such amounts and to such extent as the Council may determine that is desirable to do so on the basis of any annual salary review of BIERMAN. In the event that. CITY, at any time during the term of this agreement, reduces the salary or other financial benefits of BIERMAN in a greater percentage than applicable across the board reduction for all employees of :CITY, or in the event CITY refuses, following written notice, to comply with any other provision benefiting BIERMAN herein, or BIERMAN resigns following a formal action by the Council suggesting that BIERMAN resign, then in that event BIERMAN may, at his option, be deemed to be "terminated" as of the date of such reduction or such refusal to comply. 7. Disability: If BIERMAN is permanently disabled or otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity or health for a period of six successive weeks beyond any accrued sick leave, or for forty (40) working days over a sixty (60) working day period, CITY shall have the option. to terminate this agreement. Termination. pursuant to this provision shall not subject CITY to payment of severance benefits as specified "in Section 6(c). 8. Moving and Relocation Expenses: BIERMAN shall be reimbursed, or CITY may pay directly, for the expenses of packing and moving Bl'ERMAN, BIERMAN's family and BIERMAN's personal property from Columbia,. South Carolina. to Petaluma, California with said payment or reimbursement not to exceed the sum of $1.5,000.00, which shall include unpacking, Agreement for Employmen4'.of City Manager - Page 3 of 9 (Between BIERMAN and City of Petaluma) Reso. No. 2003-059 N.C.S. any storage costs necessary, and in urance charges. 9. Housing Assistance: CITY agrees to loan funds specifically designated as housing assistance fo BIERMAN. The total amount to be loaned will be $100,000.00 upon BIERMAN's selection of statable housing within the CITY's boundaries. This housing loan will be forgiven and considered compensation as taxab.fe wages to BIERMAN based on the following schedule of completed' employment: Third .year employment (year ending 2006): 25% or $25;Q00. Fourth year employment (year ending 2007): 25% or $25;000. Fifth year employment (year ending 2008),: 50% or $50,000. At the designation of BIERMAN, a portion of all of the remaining 50% or $50,000 may be considered deferred compensation..and applied in not more than'two incremental amounts{i.e., year ending 2008 and 20D9). The loan shall be represented. by a promissory note, shall. be secured by,a deed of trust to the `;real property purchased and subordinate only to a purchase money first: deed of trust and such other liens. and encumbrances. as City, in its absolute discretion, may approve. The form of promissory note and deed of trust shalt be subject, to City's approval, shall be executed by BIERMAN and his spouse and. shall include the fojlowing items: (a) The loan shall not' bear interest for the first five years. (b) The loan shall be forgiven in the amount to be considered. as compensation as taxable'. wages to BIERMAN based on the above schedule and if BIERMAN is an employee of CITY. (c) Should BIERMAN's employment be terminated, either by CITY or BIERMAN, the remaining.balance of said loan shall `b'e alf due and payable in full five years after the date bf termination but may be prepaid without penalty in whole or' in part. at an,y time before the due date. (d) The loan obligation shall be stabject-to acceleration by CITY at CITY's election in the event of a sale. or conveyance of the reap property in which ease the loan obligation'. shall become immediately due and payable in full unless the balance of the loan is invested in a home within the; CITY's boundaries and subject to a terms of a promissory note and deed of trust agreed upon by the parties. The provisions herein-are-subject#o any and all Internal Revenue Service or California Franchise Tax Board laws and regulations. C1TY makes no representations Agreement for Employment of City Manager Page 4; of 9 (Between BFERMAN and City of Petaluma) - ~ ~ -- Reso..No.2003.=059' N.C.S:- ?' to BIERMAN as to the appropriateness of said schedule. 10. Automobile: BIERMAN's duties require that he shall have the exclusive and unrestricted use at all times during his employment with CITY an automobile provided to him by CITY.. CITY shall. be responsible for paying for liability, property damage and comprehensive . insurance with C1TY's currently existing coverage, and for the purchase, operation, maintenance, repair and regular replacement of said. automobile. BIERMAN may supplement CITY insurance coverage with this own personal insurance at his cost. 11. Vacation, Sick and Holiday Leave: (a) As an inducement to BIERMAN to become City Manager, at signature hereof, BIERMAN shall be credited with ten (10) days of vacation leave and five (5) days of sick leave plus any accrued vacation and sick leave earned during the interim assignment. BIERMAN shall accrue over time, and have credited to his personal account, vacation at the rate of one and a quarter days per month up to a maximum of three (3) weeks per year, (b) Sick leave shall accrue and be credited to BIERMAN's personal account as with other department directors. (c) Administrative leave shall be credited to BIERMAN's account as with other department directors and pro-rated for the balance of the current fiscal year. (d) Holidays shall be credited to BIERMAN's account as with other department directors. 12. Disability, Health and Life Insurance: (a) CITY agrees to purchase and to pay during. the term of this agreement, acquired premiums on term life insurance policies .equal in amount to one and one-half (1 %2) times the amount of the annual compensation package of BIERMAN described in Section 6. (b) CITY agrees to provide medical, dental and vision benefits. Payments for premiums are included in the amount of BIERMAN's annual compensation package as described in Section 6. (c) CITY agrees to put in force and make required premium payments for the group disability plan. currently in place by the CITY. 13. Retirement: CITY agrees to execute ail necessary agreements provided by ICMA Retirement Corp. ("ICMA-RC") for BIERMAN's continued participation in said ICMA-RC retirement Agreement for Employment of City Manager Page 5 of 9 (Between BIERMA(V and City of Petaluma) . Reso. No. 2003-059 N.C.S. plan and agrees to pay an, amount designed by BIERMAN and.is allowed by, law into the ICMA-RC on BIERMAN's behalf in an equal proportionate. amount: each pay period, acid to transfer ownership to succeeding employers upon; BIERMAN's resignation or termination. The amounts paid °are ihc,luded in the amount of BIERMA'_N's annual compensation package described in Section 6. 14. Dues And Subscriptions: Subject to budgetary approval by the CITY,' CITY agrees to pay for professional dues and subscriptions of BIERMAN necessary for his continuation and full participation. in national, regional, state- and local associations and organizations .necessary and desirable for his continued professional participation, growth and ..advancement and for the good of CITY. 15. Professional Development: (a) Subject to budgetary approval by CITY, CITY agrees to pay for, fo the extent allowed byelaw, travel and subsistence expenses of BIERMAN for professional official travel, meetings and occasions adequate to continue the professional' development of BIERMAN and to .adequately pursue necessary official functions for CITY, ncluding but not limited to ICMA.annual conference, the State League of Municipalities, and such other national, regi_onal;, state and local-governmental groups and committees thereof.uvhich BIERMAN serves as a member. (b) Subject to budgetary approval by CITY, CITY agrees to pa,y for, to the extent allowed .by law; for travel :and. subsistence expenses of BIERMAN for short courses;, institutes and seminars that are necessary for his professional development and for'the good of CITY. 16. General Expenses: CITY recognizes that certain expenses of a, non;: personal and ,generally job- affiliate nature are incurred by BIERMAN 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.,. appeovai is or personal affidavits to the extent allowed by law and subject to budgetary 17. Bonding: CITY shall, bear the full cost ,of any fidelity or other bonds required of BIERMAN under any law or ordinance. 18. Continuity: I'n the-eventof ach'a'nge of.the`~'elected representation of the.City Council, there: wilt be a'sixty (60) day period when the City Council can take no acfio,n regarding the Agreement for Employment;of City Manager. Page 6 of-9 (Between BIERMAN and Gity of Petaluma) ~ " - Reso. No. 2003=059.N.C.S. provisions of BIERMAN's contract, unless both parties agree or if action is for cause. 19. Other Terms and Conditions of Employment: The City Council, in consultation with BIERMAN shall fix any other terms and conditions of employment, as it may determine from time to time, relating to the performance of BIERMAN, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this agreement, the Petaluma City Charter, the Municipal Code or any other applicable state or federal law. 20. No Reduction of Benefits: CITY shall not at any time during the term of this agreement reduce the salary, compensation or other financial benefits of BIERMAN, except to the degree of such a reduction across the board for employees of CITY. 21'. Indemnification: CITY shall defend, hold harmless and indemnify BIERMAN 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 of omission occurring in the performance of the BIERMAN's duties in accordance with the provisions of California Government Code Section 825 and provide a defense in accordance with Government Code Section 995. ~BIERMAN's conviction for any felony or should he act in a~ manner described in Government Code Section 825.6 shall be a basis for City's exemption of this indemnification. CITY may compromise and settle any such claim or suit and pay the amount of any settlement or judgment there from. 22. 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. The CITY:. Mayor and City Council 11 English Street Petaluma CA 94952 b. BIERMAN: Michael Bierman 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. Agreement for Employrrient of City Manager Page 7 of 9 (.Between BIERMAN and City of Petaluma) Reso. No. 2003-059 N.C.S. 23. Performance Evaluations` (a) City Council shall review and eualuate the performance of BIERMAN 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 B'IERMAN. Said. criteria.. may b,e added fo'or deleted from as the'Gity Council may from time to time determine and in consultation with BIERMAN: Further, the Mayor of CITY sha11 provide Bl'ERMAN wifih a 'summary written statement of the findings of the .City Council and provide an adequate opportunity for B'PERMAN to discuss his evaluation with City Council. (b) Annually, the Gity Council and~BIERMAN 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. (c) In effecting the provisions ~of this section, the City Council and BIERMAN mutually agree to abide by. the provisions of applicable law. (d) BIERMAN will timely cause to be placed on the City Cou~eil agenda each year a."closed session" for purpose of his performance evaluation.. 24. 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 rem_ ain 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 shah be binding upon and inure to the benefit of the heirs at law and executors of BIERMAN, Agreement for Employment of City Manager (Between BIERMAN and City of Petal~~ma) Page :8 of 9 Reso. No. 2003-059 N.C.S. °~ ` . DATED.: ~ ~a~ -03 DATED: ATTEST: ~~ C ty CI rk #622709 MICHAEL BIERMAN CIT bY~ ~ .~ David Glass MAYOR Agreement for Employment of City Manager Page 9 of 9 (Between BIERMAN and City of Petaluma) Reso. No. 2003-059 N.C.S.