HomeMy WebLinkAboutResolution 2016-016 N.C.S. 02/01/2016Resolution No. 2016 -016 N.C.S.
of the City of Petaluma, California
APPROVING THE THIRD AMENDED AT -WILL AGREEMENT
FOR EMPLOYMENT OF CITY MANAGER
WHEREAS, CITY and City Manager (the Parties) 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 Parties negotiated and agreed to amend the Agreement to extend the
Expiration Date and to amend certain other provisions of the Agreement; and
WHEREAS, the Second Amended Agreement, which extends the Expiration Date to
June 30, 2019 was approved by the City Council on March 14, 2013; and
WHEREAS, the Parties desire to amend the current Agreement to delete references to
the Unit 8 Compensation Plan and to specify the compensation and benefits granted to the City
Manager such that the compensation and benefits granted to the City Manager by contract are
separate from and not linked to the compensation of any other City employee, employee
bargaining unit, or compensation plan; and
WHEREAS, such changes to the current employment contract of the City Manager are
not intended to alter in any way the compensation and benefits granted to the City Manager but
rather to eliminate any potential conflict of interest in dealings of the City Manager on behalf of
the City with the City employees subject to the Unit 8 compensation plan; 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 Third Amended At -Will Agreement for Employment of City Manager attached as Exhibit A
and A -1.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Petaluma hereby approves the Third Amended At -Will Agreement for Employment of City
Manager, attached as Exhibit A and A -1 and incorporated herein by reference; and
Resolution No. 2016 -016 N.C.S. Page I
BE IT FURTHER RESOLVED that the City Council of the City of Petaluma hereby
authorizes and directs the Mayor to execute said Agreement on behalf of the City.
REFERENCE:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Under the power and authority conferred upon this Council by the Charter of said City.
I hereby certify the foregoing Resolution was introduced and adopted by the Appry6ved, as to
Council of the City of Petaluma at a Regular meeting on the I" day of February, r
2016, by the following vote:
City Attorney
Albertson, Barrett, Mayor Glass, Healy, Kearney, Vice Mayor King, Miller
None
None
None
City Clerk
I
Mayor
Resolution No. 2016 -016 N.C.S. Page 2
EXHIBIT A
THIRD AMENDED AT -WILL
AGREEMENT FOR EMPLOYMENT OF CITY MANAGER
This Agreement is made and entered into this day of February, 2016, by and between the
City of Petaluma, California ( "the CITY "), a charter city, and John C, Brown ( "City Manager ").
This Agreement shall have an effective date of February 1, 2016 ( "Effective Date "). The parties
agree as follows:
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.
2. Term:
a. Duration and Effective Date. The term of this Third Amended Agreement
(Agreement) shall commence on February 1, 2016 and, if not terminated earlier in
accordance with section 5, this Agreement will expire on June 30, 2019
( "Expiration Date ").
b. Extending �piration 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 29 (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 continue his duties under this Agreement commencing
February 1, 2016.
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
Resolution No. 2016 -016 N.C.S. Page 3
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.
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.
Termination of Employ
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.
Resolution No. 2016 -016 N.C.S. Page 4
Termination Without Cause:
For the purpose of this Agreement, termination without cause shall be deemed to occur
when:
a. 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.
b. 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.
C. 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.
d. 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 29.
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 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:
If City Manager is provided with administrative leave pay pending an
investigation, City Manager shall be required to fully reimburse City such
amounts paid.
Resolution No. 2016 -016 N.C.S. Page 5
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.
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 18(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 18 (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).
Resolution No. 2016 -016 N.C.S. Page 6
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. Merit Adjustment. 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. Cost of Living Adjustment. CITY shall consider, on an annual basis, a cost of
living adjustment to City Manager's compensation. Such adjustment shall be
separate of any adjustment granted pursuant to Section 9 (b) of this Agreement.
d. In effecting this section, City and City Manager mutually agree to abide by the
provisions of applicable law.
10. Deferred Compensation:
a. 457 Plan. CITY shall make available to City Manager the City's Deferred
Compensation Plan with ICMA Retirement Corporation (RC) 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.
b. CITY agrees to maintain all necessary agreements provided by ICMA -RC for
City Manager's continued participation in said ICMA -RC plan.
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 Leave:
a. City Manager shall accrue over time, and have credited to City Manager's
personal account, vacation at the rate of ten (10) hours per month up to a
maximum of eleven and one -third (11 -113) hours per month, consistent with the
following schedule and at the same rate as would apply to any employee
employed by CITY since April 1, 2008. There shall be no limit on the balance of
Resolution No. 2016 -016 N.C.S. Page 7
14,
15
accrued Vacation City Manager may maintain, consistent with the provisions of
Section 5.d.
Years of Service Vacation Accrual (hrs.)
5 -9 120
10 128
11 136
b. Vacation leave shall be taken at times and in amounts selected by the City
Manager, taking the operational needs of the City into account.
C. Fixed holidays shall not be charged as vacation leave when vacation and
holiday(s) coincide.
Sick Leave:
a. Eligibility. Sick leave shall be used only in case of personal illness, disability or
the illness or injury of City Manager's family member, which requires City
Manager's attention. The term family members shall include: spouse, children,
parents, spouse's parents, brothers, sisters or other individuals whose relationship
to the employee is that of a dependent or near dependent.
b. Accrual. Sick leave shall accrue and be credited to City Manager's personal
account at the rate of eight (8) hours for each month of continuous service.
C. Retirement Payout. In the event of the death or retirement and the completion of
ten (10) or more continuous years of service with the City, City Manager shall be
paid or shall receive to his benefit fifty percent (50 %) of his accumulated but
unused sick leave not to exceed four- hundred - eighty (480) hours. The employee
may elect not to receive this benefit and instead place all sick leave hours into the
Ca1PERS sick leave conversion benefit.
Administrative Leave:
City Manager shall be credited with ninety six (96) hours of administrative leave each
fiscal year.
a. Carry Forward of Leave. City Manager may carry forward up to forty (40) hours
of unused administrative leave into the next fiscal year. City Manager may not
maintain balances of more than one hundred and thirty -six (13 6) hours in any
fiscal year. 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).
b. Annual Payment for Unused Leave. City Manager shall receive payment for up
to forty (40) hours of unused administrative leave at the end of each fiscal year.
Payment shall be at the employee's base pay rate as of June 30. Payment shall be
made on the last pay period of the fiscal year.
16. Holidays and Holiday Leave:
a. The City observes twelve (12) fixed -date holidays per year. Those holidays, for
fiscal year 2015/16 are:
Resolution No, 2016 -016 N.C.S.
Page 8
Independence Day
Labor Day
Columbus Day
Veterans' Day
Thanksgiving Day
Day after Thanksgiving
Christmas Eve
Christmas Day
New Year's Day
Martin Luther King Day
Presidents' Day
Memorial Day
b. Observance. The actual date of the observed holidays is determined by City
Council resolution each fiscal year. If participating in a 5/8 schedule, when a
holiday falls on a Saturday, that holiday will be observed on the prior Friday.
When a holiday falls on a Sunday, that holiday will be observed on the following
Monday. Should this conflict with a Friday or Monday designated holiday, the
Friday or Monday holiday will occur on the preceding Thursday or following
Tuesday. If participating in a 4/10 schedule, when a holiday falls on a Friday or
Saturday, that holiday will be observed on Thursday. When a holiday falls on a
Sunday, that holiday will be observed on the following Monday. Should this
conflict with a Friday or Monday designated holiday, the Friday or Monday
holiday will occur on the preceding Wednesday or following Tuesday.
C. Floating Holidays. CITY shall provide City Manager one (1) "Floating Holiday ",
each fiscal year which may be taken at a time selected by City Manager, subject
to operational requirements of the City. The floating holiday will be added to City
Manager's bank of leave with the first payroll period each January during the
tern of this Agreement.
17. Other Leaves:
a. Industrial Injur Leave
Benefits shall be payable when City Manager's absence is due to
industrial injury as provided in California State Workers' Compensation
Law. During the first three (3) workdays when his absence has been
occasioned by injury suffered during his employment and he receives
Workers' Compensation, he shall receive full pay. Following this period,
sick leave may be a supplement to the workers' benefits provided.
Compensation is at his regular rate for a period not to exceed six (6)
months, or until such sick leave is exhausted, or the disability is abrogated,
or he is certified "permanent and stationary" by a competent medical
authority. The City shall pay him the regular salary, based on the
combination of the workers' compensation benefit plus sick leave.
2. Sick leave for industrial injury shall not be allowed for a disability
resulting from sickness, self - inflicted injury, or willful misconduct.
3. The City may retire City Manager prior to the exhaustion of accumulated
sick leave, at which time all accrued but unused sick leave shall be
abrogated, subject only to the limitations provided under this Agreement.
Resolution No. 2016 -016 N.C.S. Page 9
b. Bereavement Leave
City Manager shall be granted up to thirty -two (32) hours of bereavement
leave in the event of death in his immediate family. For the purpose of
bereavement leave, immediate family shall mean spouse, qualified
domestic partner, father, father -in -law, mother, mother -in -law, brother,
brother -in -law, sister, sister -in -law, child (including stepchildren), step-
parents, grandparents and grandchildren or person with whom City
Manager has a relationship in loco parentis. Up to an additional eight (8)
hours of accrued sick leave may be granted to supplement bereavement
leave.
2. In the event City Manager must travel more than three hundred (300)
miles to attend a funeral or memorial service, an additional eight (8) hours
of bereavement leave shall be granted instead of the use of eight (8) hours
of sick leave.
C. Victims of Domestic Violence and Sexual Assault Leave
The City of Petaluma provides appropriate leave, in accordance with California
Labor Code Section 230.
d. Election Officer Leave And Voting Leave
eave
When City Manager's actual work schedule otherwise would prevent him from
voting in any State, County, or General election, he may be granted up to two (2)
hours of paid time to vote, in accordance with Election Code 14000, City
Manager must provide the City with at least two (2) working days' notice that he
will be taking time off to vote.
e. Leave Of Absence Without Pay
CITY may grant City Manager a leave of absence without pay pursuant to State
and Federal Law. Good cause being shown by a written request, CITY may
extend such leave of absence without pay or benefits for an additional period not
to exceed six (6) months. No such leave shall be granted except upon written
request of City Manager setting forth the reason for the request, and the approval
will be in writing.
f. Jury Duty Leave
If City Manager is summoned for jury duty, he shall be entitled to a leave of
absence with full pay for such period of time as may be required to attend the
court in response to such summons. City Manager may retain payment for travel
but shall make payable to the City any and all fees which he may receive in
payment for service as a juror. For Grand Juries this compensation shall not
extend beyond twenty (20) working days.
g. Family Care and Medical Leave (FMLA & CFRA)
1. FMLA and /or CFRA Leave. CITY shall provide City Manager with
family and medical care leave as required by City policy, State and
Federal law and as specifically provided in the Federal Family and
Resolution No. 2016 -016 N.C.S. Page 10
Medical Leave Act of 1993 (FMLA) and the California Family Rights Act
of 1993 (CFRA). City Manager must provide thirty (30) days advance
notice of leave, if possible.
2. FMLA and /or CFRA — Second Opinion. City Manager shall provide
CITY with a health care provider certification. CITY, at City expense,
may require a second opinion on the validity of the certification. Should a
conflict arise between health providers, a third and binding opinion, at
City expense shall be sought.
18. 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.
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 in
accordance with Exhibit A -1. City Manager shall have the right to select medical,
dental and vision coverage from the plan options offered by CITY.
CITY agrees to have in force and make required premium payments for City
Manager's participation in the CITY's current group disability plan. Currently
that Plan is provided through CIGNA, and replaces 60% of annual earnings, to a
maximum of $3,000 per month after being disabled for sixty (60) days.
19. Retirement:
a. California Public Employees Retirement System. City has previously enrolled
City Manager into the California Public Retirement System, (PERS). City agrees
to make all the appropriate contributions on City Manager's behalf, for the
employer share required. City Manager shall pay the entire contribution for the
PERS employee share required.
b. City Manager has continuously been employed with CITY since April 1, 2008,
and does and shall continue to participate in the 2% at 55 formula retirement plan
provided to Miscellaneous members, calculated at the single highest one -year
compensation.
The City's contract with PERS, for Miscellaneous members with the two percent
(2 %) at fifty -five (55) formula retirement plan, includes the following optional
benefits:
1. Third Level - 1959 Survivor's Benefit as provided in Section 21573 (April
5, 1999).
2. Military Service Credit as provided in Section 21024 (January 1, 1992).
3. One -Year Final Compensation as provided Section 20042 (November 1,
1980).
4. Credit for Unused Sick Leave as provided in Section 20965 (November 1,
1980).
Resolution No. 2016 -016 N.C.S. Page 1 1
5. Cost of Living Allowance two percent (2 %) as provided by Section 21329
(April 1, 1971).
6. Retired Death Benefit of five- hundred dollars ($500.00) as provided in
Section 21620 (December 1, 1969).
7. Death Benefit Continues as provided in Section 21551 (January 1, 2000),
8. Prior Service Credit as provided in Section 20055 (January 1, 1950).
d. The City shall continue to defer that portion of the employee's contribution paid
to Ca1PERS through section 414(h)(2) of the Internal Revenue Code pursuant to
City of Petaluma Resolution 90 -363 N.C.S.
e. 401(A) Plan. The City of Petaluma shall 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.
20. 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.
21. 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.
22, 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 CITY'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.
Resolution No. 2016 -016 N.C.S. Page 12
23. Bonding:
CITY shall bear the full cost of any fidelity or other bonds required of City Manager
under any law or ordinance.
24. 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,
25. 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.
26. Reasonable Accommodation:
In accordance with the California Fair Employment and House Act (FEHA) and the
Americans with Disability Act (ADA), CITY will reasonably accommodate any known
protected disability of City Manager,
27. 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.
28. 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
City Manager serves as a witness, advisor and /or consultant to CITY regarding
pending litigation.
Resolution No. 2016 -016 N.C.S. Page 13
29. 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.
30. Performance Evaluations:
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.
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.
Resolution No. 2016 -016 N.C.S. Page 14
31. Miscellaneous:
a. The text herein shall constitute the entire agreement between the parties. Upon
execution by both parties and commencing on the Effective Date, this Agreement
will replace in its entirety the Second Amended At -Will Agreement for
Employment of City Manager dated March 19, 2013. 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.
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.
This agreement shall be binding upon and inure to the benefit of the heirs at law
and executors of City Manager.
CITY MANAGER
In
John C. Brown, City Manager
DATED:
ATTEST:
CITY
C
David Glass, Mayor
DATED:
APPROVED AS TO FORM:
Claire Cooper, City Clerk I Eric W. Danly, City Attorney
Resolution No. 2016 -016 N.C.S. Page 15
EXHIBIT A -1
HEALTH - RELATED BENEFITS
PEMHCA Contribution:
The City currently provides health benefits through the California Public Employees'
Retirement System ( Ca1PERS) Health Benefits Program under the Public Employees'
Medical and Hospital Care Act (PEMHCA). The City's employer contribution for City
Manager's health benefits shall be the minimum required by PEMHCA. The City pays this
contribution directly to CaIPERS. This amount is established annually by PERS and is the
minimum amount the agency must pay on behalf of the employee for medical insurance.
It is separate and apart from the annual health insurance rates and the additional
contribution noted in Section 2 of this Exhibit.
2. Additional Contribution:
The amount of the City's additional contribution for City Manager and his covered family
members shall be $1,264.95 for employee plus one, and $1,678.34 for employee plus two or
more. These amounts do not include the City PEMCHA contribution identified in Section 1.
City's additional contribution shall not exceed these amounts unless and until a different
amount is negotiated by the parties.
3. Employee Contribution:
City Manager shall contribute to his Ca1PERS Health Premium in the amounts less the City's
PEMHCA contribution and less the additional benefit paid by the City.
4. Retired Employees — CaIPERS and PEMHCA:
a. The City currently provides health benefits through the California Public Employees'
Retirement System (CaIPERS) Health Benefits Program under the Public
Employees' Medical and Hospital Care Act (PEMHCA). In order for City Manager
to be eligible to receive health benefits through CaIPERS upon retirement, he must
meet the following definition of "annuitant" under CaIPERS law:
1. Employee must be a member of CaIPERS; and
2. Employee must retire within one - hundred - twenty (120) days of separation
from employment with the City of Petaluma and receive a monthly retirement
allowance from CaIPERS.
b. The monthly employer contribution for annuitants is the required minimum
PEMHCA contribution.
The City pays this contribution directly to CaIPERS. The retiree is required to
contribute to the cost of the health benefit coverage. The retiree's monthly
contribution shall be the cost of the monthly health benefit premium less the amount
of the City's contribution.
Resolution No, 2016 -016 N.C.S. Page 16
5. CalPERS Annuitant — PEMHCA Health Benefits:
In accordance with the PEMHCA provisions if an employee is a CalPERS annuitant as
defined in Section 4 (A) and receives health benefits under the PEMHCA, the employee
is eligible to receive the City's PEMHCA contribution amount specified in Section 7
below, regardless of the number of years of service with the City of Petaluma.
6. Less Than 20 Years of Service — Not Receiving PEMHCA Health Benefits:
A retired employee with less than twenty (20) years of service with the City of Petaluma
who is not enrolled in the CalPERS health benefit program does not receive any retiree
benefit from the City.
7. Less Than 20 Years of Service — Receiving PEMHCA Health Benefits:
A retired employee with less than twenty (20) years of service with the City of Petaluma who
is a CalPERS annuitant as defined in Section 27.1 and enrolled in the CalPERS health benefit
program is eligible to receive the City's minimum PEMHCA contribution as set by
CalPERS.
Cash In -Lieu of Health and Dental Benefits:
a. If City Manager has health and or dental benefit insurance coverage from a source
other than the City, he may request cash in lieu of health and dental benefits. To
be eligible for the cash in -lieu benefit program he must waive his coverage under
the City's health and /or dental benefits, agree to the terms and conditions of the
cash in -lieu benefit program and have written verification of health and /or dental
benefits insurance.
b. The cash in -lieu amount for health coverage shall be in the amount of fifty percent
(50 %) of the health insurance premium amount that the City would otherwise pay
for the employee and his family members. The cash in -lieu amount for dental
insurance benefits shall be in the amount of fifty percent (50 %) of the established
dental program composite rate.
C. Upon declining medical and /or dental insurance, City Manager will be required to
meet the terms and conditions regarding CITY'S medical and /or dental plan. If he
decides to stop receiving the medical /dental cash back and wishes to re- enroll into
the City's medical and /or dental plan, then he must meet the current terms and
conditions of the City's medical and /or dental plan. The City cannot guarantee
that once he leaves a particular medical and /or dental plan, that he may be able to
re- enroll in his /her prior plan and under the same terms and conditions of his prior
plan.
9. Section 125 Plan:
The City of Petaluma has established and shall offer to City Manager an Internal Revenue
Code Section 125 plan. The Section 125 plan is subject to federal law and plan
provisions. The Section 125 Plan offered by the City provides employees with a tax
savings through the following programs:
Resolution No. 2016 -016 N.C.S. Page 17
a. Pre -Tax Health Insurance Premiums
This program allows employees to .pay his or her share of health insurance
premiums with pre -tax dollars.
b. Flex Spending Accounts (FSAs)
1. Medical Reimbursement
This program permits employees to pay for common out -of- pocket
medical expenses (not covered by insurance) such as deductibles, co -pays,
and vision and dental care with pre -tax dollars.
2. Dependent Care Reimbursement
This program permits employees to pay for most child and or dependent
care expenses with pre -tax dollars.
10. Dental Insurance:
CITY shall provide a dental plan for the term of the Compensation Plan and pay the total
premium costs for City Manager and eligible dependents. The maximum benefit amount
is one - thousand - five - hundred dollars $1,500 per person per calendar year. Orthodontic
coverage shall be provided for dependent children under the age of nineteen (19) years
and is 50% of the dentist's allowed fee (subject to a $1,000.00 lifetime maximum per
person).
11. Vision Insurance:
CITY shall provide a vision plan for City Manager and eligible dependents. The cost
shall be paid for by the City. City Manager and his eligible dependents are eligible for
eye exams every twelve (12) months with a twenty -five ($25.00) deductible. Frames are
available every twelve (12) months with a maximum benefit of one - hundred - twenty
dollars ($120.00) and lenses are available every twelve (12) months with a maximum
benefit of two - hundred dollars ($200.00).
12. Employee Assistance Program:
City will provide an Employee Assistance Program to City Manager and his immediate
family. This licensed counseling service will provide assistance and referrals for
marriage and family problems, alcohol and drug dependency, emotional, personal, and
stress - related concerns and other issues. All counseling services are confidential.
Resolution No. 2016 -016 N.C.S. Page 18