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HomeMy WebLinkAboutResolution 2016-125 N.C.S. 08/01/2016Resolution No. 2016 -125 N.C.S. of the City of Petaluma, California APPROVING THE FOURTH AMENDED AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT 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 Citywide 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 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 Third Amended Agreement, which deleted references to the Unit 8 Compensation Plan and instead specified the benefits granted to the City Manager to avoid potential conflicts and inconsistencies with applicable provisions of the State law, was approved by the City Council on February 1, 2016; and WHEREAS, the Parties desire to amend the Agreement to provide for clarification of certain provisions, to extend the Expiration Date, to provide for an increase in annual Compensation and Dental Benefits consistent with those granted to some other employee groups, and to modify Administrative Leave, Vacation Leave, and Health Benefits provisions to provide certain compensatory cost reductions; and Resolution No. 2016 -125 N.C.S. Page 1 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 Fourth Amended At -Will Agreement for Employment of City. Manager attached as Exhibit 0 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby approves the Fourth 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. Resolution No. 2016 -125 N.C.S. Page 2 EXHIBIT A FOURTH AME NDED AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY MANAGER This Amended Agreement (Agreement) is made and entered into this day of , 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 August 1, 2016 ( "Effective Date "). The parties agree as follows: 1. Appointment of City Manager: The Petaluma City Council appointed John C. Brown as City Manager of the City of Petaluma beginning on April 1, 2008. The City Council of the CITY hereby acknowledges the continuing appointment of John C. Brown as City Manager of the City of Petaluma, California. 2. Term: a. Duration and Effective Date. The term of this Amended Agreement (Agreement) shall commence on August 1, 2016 and, if not terminated earlier in accordance with section 5, this Agreement will expire on August 31, 2021. (`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 29 (a) of this Agreement. At -Will Employ 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 tune 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 on August 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 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. Resolution No. 2016 -125 N.C.S. Page 3 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. 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. City Manager will, however, receive administrative leave in accordance with Section 15. 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). 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 alleged cause for termination. 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 alleged cause for termination. City Manager may also choose to have allegations brought against him heard in open session in accordance with California Government Code Section 54957 (b) (2). After hearing City Manager's response to the allegations, 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 accrued and unused vacation, administrative leave, and floating holidays, subject to the limitations imposed elsewhere in this Agreement. Termination Without Cause: For the purpose of this Agreement, termination without cause shall be deemed to occur when: 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 without cause. Resolution No. 2016 -125 N.C.S. Page 4 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 without cause. 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. 7. Termination for Cause: a. For purposes of this Agreement, cause for termination by CITY means: 1. Willful and repeated failure to perform the duties of City Manager or other material breach of this Agreement declared in writing by CITY by notice in accordance with Section 29 and not cured within thirty days of receipt of notice of the declared material breach; 2. Conviction of City Manager for an employment related criminal act; 3. Conviction of City Manager for a felony; or 4. A finding by a court, jury, State or Federal Attorney General, the 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. If CITY pays for the criminal legal defense of City Manager, City Manager shall be required to fully reimburse CITY such amounts paid. 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. 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 Resolution No. 2016 -125 N.C.S. Page 5 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). 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. 9. Compensation: a. Base Salary. City agrees to pay City Manager an annual base salary of $216,320, payable in installments at the same time that the other 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 performance review of City Manager. C. Cost of Living Adjustment. CITY shall consider, on an annual basis, cost of living adjustment to City Manager's compensation. Such adjustments shall be separate of any adjustments 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 tennination. b. CITY agrees to maintain all necessary agreements provided by ICMA -RC for City Manager's continued participation in said ICMA -RC plan. Resolution No. 2016 -125 N.C.S. Page 6 11 12. 13 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. 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 elect to 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. Vacation Leave: a. As of the Effective Date of this Agreement, City Manager has a balance of 543.22 hours of accumulated Vacation leave. City Manager shall continue to accrue vacation hours at the rates specified in the table below. City Manager shall not accrue vacation time in excess of 600 hours. Years of Service Vacation Accrual (hrs.) 9 120 10 128 11 136 12 144 13 152 14 160 15 168 16 or greater 200 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. Fixed holidays shall not be charged as vacation leave when vacation and holiday(s) coincide. 14. 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 members, 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. As of the Effective Date of this Agreement, City Manager has a balance of 691.91 hours of accumulated Sick leave. Sick leave shall continue to accrue and be credited to the 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 at any time during the term of this Agreement, City Manager may place all sick leave hours into the CalPERS sick leave conversion benefit. Upon completion of ten (10) or more continuous years of service with the City, and upon death or retirement, City Manager shall be paid or shall receive to his benefit fifty percent (50 %) of his accumulated but unused sick leave. City Manager Resolution No. 2016 -125 N.C.S. Page 7 may elect not to receive this benefit and instead place all sick leave hours into the CalPERS sick leave conversion benefit, or City Manager may do a combination of both, to receive a payout of up to fifty percent (50 %) of his accumulated but unused sick leave with the balance placed into the Ca1PERS sick leave conversion benefit. 15. 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 twenty (20) 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: The City observes the following twelve (12) fixed -date holidays per year: 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 a. 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. b. Floating olidays. CITY shall provide City Manager one 8 -hour "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 term of this Agreement. Any unused floating holiday leave remaining in City Manager's leave bank at the end of a fiscal year may be carried forward to the succeeding year. 17. Other Leaves: a. Industrial Injury 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 Resolution No. 2016 -125 N.C.S. Page 8 during his employment and he receives Workers' Compensation benefits, 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. The City may, with City Manager's agreement, 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. 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 (3 00) 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: 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' written notice that he will be taking time off to vote. 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. Resolution No. 2016 -125 N.C.S. Page 9 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): 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 Medical Leave Act of 1993 (FMLA) and the California Family Rights Act of 1993 (CFRA). City Manager will 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 1. City Manager shall have the right to select medical, dental and vision coverage from the plan options specified in Exhibit 1. 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: 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 the 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. C. 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: Third Level - 1959 Survivor's Benefit as provided in Section 21573 (April 5, 1999). Resolution No. 2016 -125 N.C.S. Page 10 2. Military Service Credit as provided in Section 21024 (January 1, 1992). 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). 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 9 0-3 63 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 -125 N.C.S. Page 11 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: 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. Following termination or expiration of this Agreement, for any reason, when City Manager serves as a witness, advisor and /or consultant to CITY regarding pending litigation, CITY agrees to pay City Manager consulting fees at an hourly rate equal to the base wage paid to City Manager at the time of separation, CITY also agrees to pay reasonable travel expenses and miscellaneous costs related to such consulting. 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: Resolution No. 2016 -125 N.C.S. Page 12 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: 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. 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. 31. 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. Resolution No. 2016 -125 N.C.S. Page 13 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 CITY Bv: John C. Brown, City Manager David Glass, Mayor DATED: Claire Cooper City Clerk APPROVED AS TO FORM: Eric W. Danly City Attorney DATED: Resolution No. 2016 -125 N.C.S. Page 14 HEALTH - RELATED BENEFITS PEMHCA Contribution: EXHIBIT I The City currently provides health benefits through the California Public Employees' Retirement System (CalPERS) 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 CalPERS. 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. This amount does not include the City PEMCCA contribution identified in Section 1. City's additional contribution shall not exceed this amount unless and until a different amount is negotiated by the parties. Employee Contribution: City Manager shall contribute to his CalPERS Health Premium in the amounts less the City's PEMHCA contribution and less the additional benefit paid by the City. 4. Retired Employees — CalPERS and PEMHCA: A. The City currently provides health benefits through the California Public Employees' Retirement System (CalPERS) 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 CalPERS upon retirement, he must meet the following definition of "annuitant" under CalPERS law: Employee must be a member of CalPERS; and 2. Employee must retire within one - hundred - twenty (120) days of separation fiom employment with the City of Petaluma and receive a monthly retirement allowance fiom CalPERS. B. The monthly employer contribution for annuitants is the required minimum PEMHCA contribution. C. The City pays this contribution directly to CalPERS. 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 -125 N.C.S. Page 15 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. Less Than 20 Years of Service — Not Receiving PEMIICA 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. 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: A. Pre -Tax Health Insurance Premiums: This program allows employees to pay his or her share of health insurance premiums with pre -tax dollars. Resolution No. 2016 -125 N.C.S. Page 16 B. Flex Spending Accounts (FSAs) : 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. 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 two thousand dollars ($2,000) per person per calendar year. 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 -125 N.C.S. Page 17