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HomeMy WebLinkAboutResolution 2008-082 N.C.S. 05/19/2008Resolution No. 2008-082 N.C.S. of the City of Petaluma, California. RESOLUTION APPROVING FIRST AMENDED AT-WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER AND AUTHORIZING MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City and City Manager John C. Brown entered into an At-Will Agreement for Employment dated February 7, 2008 and effective April 1, 2008; and, WHEREAS, provision 13(a) of the February 7, 2008 Agreement provides that the City agrees to enroll and make all the appropriate contributions into the California Public Employees' Retirement System ("PERS") on the City Manager's behalf, for both the employer and employee's required share; and, WHEREAS, PERS representatives have informed the City that PERS rules and/or regulations will not permit payment by the City of the employee's required share; and, WHEREAS, the City may contribute an amount equivalent to contributions into PERS on the City Manager's behalf for the employee's required share into the City of Petaluma 401(A) Government Money Purchase Plan and Trust; and, WHEREAS, it is the desire of the City Council to provide certain previously-negotiated benefits to the City Manager, by substituting a contribution by the City of an amount equivalent to the City Manager's employee share of participation in PERS into the City of Petaluma (401)(A) Government Money Purchase Plan and Trust in place of the City Manager's employee share of PERS contributions provided for in the At-Will Agreement for Employment dated. February 7, 2008 and effective April 1, 2008; 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 FIRST AMENDED AT-WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER attached as Exhibit A. Resolution No. 2008-082 N.C.S. Page 1 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby approves the FIRST AMENDED AT-WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER, attached as Exhibit A and incorporated herein by reference. BE IT FUR'TIIER RESOLVED, that the City Council of the City of Petaluma hereby authorizes the Mayor to execute said FIRST AMENDED AT-WILL 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 Council of the City of Petaluma at a Regular meeting on the 19`h day of May, 2008, by the following vote: .AYES: Freitas, Harris, Nau, O'Brien, Vice Mayor Rabbitt NOES: Barrett, Mayor Torliatt ABSENT: None ABSTAIN: None ATTEST: ~ `~ ~ ~ L"'----'' Deputy City Clerk Resolution No. 2008-082 N.C.S. Page 2 EXHIBIT A FIRST AMENDED AT-WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER This Agreement is made and entered into this day of , 2008, by and between the City of Petaluma, California ("the CITY"), a charter city, and John C. Brown ("EMPLOYEE"). This Agreement (the "Agreement") shall have an effective date of April l , 2008 ("Effective Date"). In consideration of the mutual covenants contained herein, the parties agree as follows: WHEREAS, CITY and EMPLOYEE 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, provision 13(a) of the February 7, 2008 Agreement provides: Effective (start date), CITY agrees to enroll EMPLOYEE into the California Public Employee Retirement System, ("PERS") and to make all the appropriate contributions on the EMPLOYEE'S behalf, for both the employer and EMPLOYEE share required; and, WHEREAS, PERS representatives have informed the CITY that PERS rules and/or regulations and the CITY'S current contract with PERS will not permit payment by the CITY of EMPLOYEE'S share of the cost of EMPLOYEE's participation in PERS; and, WHEREAS, the CITY may contribute an amount equivalent to the EMPLOYEE'S share of the cost of EMPLOYEE'S participation in PERS into the City of Petaluma 401(A) Government Money Purchase Plan and Trust, on EMPLOYEE'S behalf; and, WHEREAS, CITY desires to employ the services of EMPLOYEE as the City Manager for CITY; and, WHEREAS, it is the desire of the Petaluma City Council (the governing board of CITY) to provide certain benefits, including contribution by the CITY of an amount equivalent to the EMPLOYEE'S share of the cost of EMPLOYEE'S participation in PERS, into the City of Petaluma 401 (A) Government Money Purchase Plan and Trust, on EMPLOYEE'S behalf, and to establish certain conditions of employment and to set working conditions of EMPLOYEE; and, WHEREAS, EMPLOYEE desires to accept employment as City Manager of CITY. 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 EMPLOYEE to the position of City Manager of the City of Petaluma, California. Expiration: If not terminated earlier in accordance with section 5 of this Agreement, this Agreement will expire on March 31, 2013 ("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 receipt of said notice, the parties shall commence discussions and negotiations. The parties have no obligation to agree Resolution No. 2008-082 N.C.S. Page 3 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: EMPLOYEE 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 the CITY's Personnel Rules, Policies, Procedures, Ordinances and Resolutions shall not apply to EMPLOYEE, and nothing in this Agreement is intended to, or does, confer upon EMPLOYEE any right to or expectation of any right or property interest in continued employment. If a decision to terminate EMPLOYEE'S employment is made by the City Council, whether with or without cause, EMPLOYEE shall be entitled to only that due process as is provided by City Charter, ordinance or other applicable law. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of EMPLOYEE to resign at any time from EMPLOYEE'S position with CITY, subject to section 5(a) of this Agreement. 4. Duties and Responsibilities: a. EMPLOYEE shall commence EMPLOYEE'S duties on or before April 1, 2008. b. EMPLOYEE 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. EMPLOYEE agrees to devote EMPLOYEE'S productive time, ability and attention to the CITY's business during the term of this Agreement. EMPLOYEE shall not hold secondary employment, and shall be employed exclusively by the CITY. The CITY recognizes that EMPLOYEE is expected to devote necessary time outside normal office hours to business of the CITY. EMPLOYEE shall be allowed to take reasonable time off for such work, as EMPLOYEE shall deem appropriate during normal office hours. As an exempt employee, EMPLOYEE shall not receive overtime or extra compensation for work performed outside normal business hours. Termination of Employment and Severance: a. EMPLOYEE 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. EMPLOYEE will not be entitled to receive any severance pay if EMPLOYEE'S resignation is voluntary. b. The City Council may terminate this Agreement, with or without cause. City Council shall give EMPLOYEE a minimum sixty (60) days prior written notice of termination provided, however, that if EMPLOYEE is terminated for cause, as defined in this Agreement, the sixty (60) day written notice requirement shall not apply and EMPLOYEE may be terminated effective immediately upon written notice. c. If this Agreement is terminated prior to the Expiration Date by either party, EMPLOYEE will be paid for all earned, accrued and unused vacation, administrative leave, and floating holidays. Resolution No. 2008-082 N.C.S. Page 4 d. For the purpose of this Agreement, termination without cause shall be deemed to occur when: 1. The majority of the governing body votes to terminate the EMPLOYEE at a duly authorized public meeting without cause, as defined in Section 5(f) 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 EMPLOYEE'S position that substantially changes the form of government. EMPLOYEE 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 EMPLOYEE (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 EMPLOYEE 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 EMPLOYEE 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 EMPLOYEE will not be entitled to severance pursuant to Section 5(e) of this Agreement upon such termination. Written notice of a breach of this Agreement shall be provided in accordance with the provisions of Section 22. e. If the CITY terminates EMPLOYEE without cause in accordance with Section 5(d). during the term of this Agreement, and EMPLOYEE is willing and able to perform in accordance with this Agreement, then EMPLOYEE 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 the EMPLOYEE and all dependents as provided in Section 12(b) for seven (7) months. At EMPLOYEE'S election, and pursuant to EMPLOYEE'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 EMPLOYEE elect to receive severance pay in equal payments, the number of such monthly payments shall not exceed seven (7). If CITY terminates EMPLOYEE for cause, EMPLOYEE will not be entitled. to any severance payment. The determination of whether there is cause for termination shall be in the discretion of the City Council and consistent with Section 5(f) and/or Section 5(d) (4). f. 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; (4) malfeasance materially related to the job; or (5) a finding by a court, jury, State or Federal Attorney General, Fair Political Prdctices Commission, or any similar governmental agency, that EMPLOYEE engaged in intentional or negligent misconduct in relation to the performance of EMPLOYEE'S duties. Resolution No. 2008-082 N.C.S. Page 5 6. Compensation: a. Base Salary. City agrees to pay EMPLOYEE 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 EMPLOYEE'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 EMPLOYEE. 7. Benefits: Except as otherwise provided in this Agreement, the EMPLOYEE shall be entitled to the same level of benefits that are enjoyed by department directors of the CITY as provided in the City Charter, Municipal Code, Personnel Rules and Regulations, approved Compensation Plans, or by practice. 8. Disability: If EMPLOYEE is permanently disabled or otherwise unable to perform EMPLOYEE'S duties because of sickness, accident, injury, mental incapacity or healfh for a period of six (b) successive weeks 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 5(e). Moving and Relocation Expenses: EMPLOYEE shall be reimbursed, or CITY may pay directly, for the expenses of packing and moving EMPLOYEE, EMPLOYEE'S family and EMPLOYEE's personal property from Woodburn, Oregon to Petaluma, California with said payment or reimbursement not to exceed the sum of $10,000. Eligible expenses shall include temporary housing, storage and movement of personal effects, house hunting trips and related travel for EMPLOYEE and EMPLOYEE'S spouse and other related expense. EMPLOYEE shall submit receipts for all expenses for which reimbursement is claimed. All expenses to be reimbursed under this section must be incurred and claimed within one year of the execution of this Agreement or such longer time as EMPLOYEE and CITY may agree. 10. Automobile: EMPLOYEE'S duties require the exclusive use of an automobile for use in performing EMPLOYEE'S obligations under this Agreement. Pursuant to this section, an automobile shall be provided to EMPLOYEE by CITY. Automobile will be either (a) hybrid or (b) zero emission vehicle. CITY shall be responsible for paying for liability, property damage and comprehensive insurance with CITY'S currently existing coverage, arid for the purchase, operation, maintenance, repair and regular replacement of said automobile. EMPLOYEE may supplement CITY insurance coverage with his own personal insurance at his cost. 1 1. Vacation, Sick and Holiday Leave: a. As an .inducement to EMPLOYEE to become City Manager, at signature hereof, EMPLOYEE shall be credited with ten (10) days of vacation leave and five (5) days of sick leave. EMPLOYEE shall accrue over time, and have credited to EMPLOYEE'S 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 EMPLOYEE'S personal account as with CITY department directors. Resolution No. 2008-082 N:CS. Page 6 c. Administrative leave shall be credited to EMPLOYEE'S account a.t the rate of 12 days per year and pro-rated for the balance of the current fiscal year. d. Holidays shall be credited to EMPLOYEE'S account as with CITY department directors. 12. 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'/2) times the amount of the annual compensation package of EMPLOYEE described in Section 6. b. CITY agrees to provide and to pay the CITY'S share of premiums for medical, dental, and vision insurance for the EMPLOYEE and his dependents equal to that which is provided to all department directors of the CITY. EMPLOYEE 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 EMPLOYEE'S participation in the CITY's current group disability plan. 13. Retirement: a. Effective April 1, 2008, CITY agrees to enroll EMPLOYEE into the California Public Employee Retirement System, (PERS) and to make all the appropriate contributions on the EMPLOYEE'S behalf, for the employer share required, and to contribute on behalf of EMPLOYEE seven percent (7%) of the compensation amount specified in provision 6(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 execute all necessary agreements provided by ICMA Retirement Corp. ("ICMA-RC") for EMPLOYEE'S continued participation in said ICMA-RC retirement plan and agrees to pay an amount designated by EMPLOYEE and allowed by law into the ICMA-RC on EMPLOYEE'S behalf in an equal proportionate amount each pay period, and to transfer ownership to succeeding employers upon EMPLOYEE'S resignation or termination. 14. Dues And Subscriptions: Subject to budgetary approval by the CITY, CITY agrees to pay for professional dues and subscriptions of EMPLOYEE necessary for EMPLOYEE'S continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for EMPLOYEE'S 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, to the extent allowed by law, travel and subsistence expenses of EMPLOYEE for official travel, meetings and events as necessary and appropriate to continue the professional development of EMPLOYEE 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 EMPLOYEE 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 EMPLOYEE for short courses, institutes Resolution No_2008-082 N.C.S. Page 7 and seminars that are necessary for EMPLOYEE'S professional development and for the good of CITY. 16. General Expenses: CITY recognizes that certain expenses of anon-personal nature are incurred by EMPLOYEE for the benefit of the CITY in the course of performance of EMPLOYEE'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 duty executed expenses of petty cash vouchers, receipts, statements or personal affidavits to the extent allowed by law and subject to budgetary approval. 17. Bonding: CITY shall bear the full cost of any fidelity or other bonds required of EMPLOYEE under any law or ordinance. 18. 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 EMPLOYEE'S contract, unless both parties agree or the action is for cause. 19. 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. 20. Other Terms and Conditions of Employment: The City Council, in consultation with EMPLOYEE, shall fix any other terms and conditions of employment, as it may determine from time to time, relating to the performance of EMPLOYEE, 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. 21. Indemnification: a. CITY shall defend, hold harmless and indemnify EMPLOYEE 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 EMPLOYEE'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 EMPLOYEE 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 EMPLOYEE reasonable consulting fees and travel expenses when EMPLOYEE serves as a witness, advisor and/or consultant to CITY regarding pending litigation. Resolution No. 2008-082 N.C.S. Page 8 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. CITY: Mayor and City Council 1 1 English Street Petaluma CA 94952 b. EMPLOYEE: John C. Brown City Manager 1 1 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. 23. Performance Evaluations: a. City Council shall review and evaluate the performance of EMPLOYEE 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 EMPLOYEE. Said criteria may be amended as the City Council may from time to time determine and in consultation with EMPLOYEE. The City Council shall conduct its evaluation of EMPLOYEE in closed session. The City Council shall provide EMPLOYEE with the written evaluation and provide an adequate opportunity for EMPLOYEE to discuss EMPLOYEE'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 EMPLOYEE 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 EMPLOYEE mutually agree to abide by the provisions of applicable law. e. EMPLOYEE will timely cause to be placed on the City Council agenda each year a "closed session" for purpose of EMPLOYEE'S 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 Resolution No. 2008-082 N.C.S. Page 9 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 EMPLOYEE. DATED: EMPLOYEE By John C. Brown, City Manager CITY By Pamela Torliatt Mayor ATTEST: Claire Cooper City Clerk APPROVED AS TO FORM: Eric W. Danly City Attorney 1089459.2 Resolution No. 2008-082 N.C.S. Page l0