Loading...
HomeMy WebLinkAboutStaff Report 3.F 03/20/2017DATE: TO: FROM: SUBJECT: March 20, 2017 Honorable Mayor and Members of the City Council John C. Brown, City Manager Resolution Approving a New At -Will Employment Agreement for the City Attorney RECOMMENDATION It is recommended that the City Council adopt the attached resolution approving a new At -Will Employment Agreement for the City Attorney, and authorizing and directing the Mayor to execute the Agreement on behalf of the City. BACKGROUND On December 5, 2005, the Petaluma City Council adopted Resolution No. 2005 -205, appointing Eric Danly as City Attorney of the City of Petaluma. By the same resolution, the City Council approved the fourth amendment to an agreement for legal services originally executed August 29, 1994 with Meyers, Nave, Riback, Silver and Wilson (MN). Eric Danly served as the Petaluma City Attorney as an MN employee pursuant to the contract with the City of Petaluma. To reduce the overall cost of legal services, the City Council decided to provide for the City's primary legal services employing an in -house model rather than through the agreement with M. The City Council invited Eric Danly to continue serving as the Petaluma City Attorney pursuant to an employment contract with the City and to establish an in- house legal services department. On June 3, 2013 the City Council adopted Resolution 2013 -060, approving an At -Will Agreement for Employment of City Attorney with Eric Danly, effective July I, 2013. All of the City's represented employees have negotiated contracts and received salary adjustments during the prior calendar year. Those adjustments ranged from a iota) of 3 percent for a wage re- opener, to 4 percent with a wage re- opener in the third year of the contract, depending on the bargaining group. The group most closely related to the City Attorney, Unit 8 (Department Directors and Assistant City Attorneys), received a 4 percent adjustment in March, 2016, , Public Safety mid -level managers received the same increase in January, 2016. The City Manager received a 4% compensation adjustment effective August 1, 2016, and the City Cleric received a 4 % compensation adjustment. effective December 19, 2016. A coninion component in all the salary adjustments this past year, reflecting one element of the City Council's Negotiating Principles, was a `give - back something of monetary value given by employees to the City to help offset the cost of salary adjustment. Units 8 and 10 exchanged the benefit of cashing out 20 hours -worth of Administrative Leave at the end of each fiscal year as part of their give - backs, The City Manager and the City Clerk followed suit when their employment agreements were amended. DISCUSSION Both the current At Will Agreement for Employment of City Attorney and the attached agreement provide the City Council, at its discretion, may grant a merit -based compensation adjustment following completion of the annual performance review and evaluation of the City Attorney. The City Council has regularly evaluated the City Attorney's performance since 2005 as a contractor, and since 2014 as a City employee. Given the City's financial condition, salary adjustments have not been requested, considered, or granted since the 2013 agreement was executed. The Council concluded an evaluation of the City Attorney's performance in February, 2017. An evaluation was shared with the City Attorney and a work plan discussed, upon which, in part; the City Attorney's 2017 /2018 performance will be evaluated. A Council subcommittee discussed changes to the current City Attorney agreement in closed session with the fiill Council on March 6, 2017 and recommended the Attorney's agreement be updated to reflect modifications, as follows; continued performance of the duties and responsibilities of City Attorney for the City of Petaluma fora 10 -year terns, with the parties agreeing to discuss any potential renewal of the contract at the beginning of the final year of the 'ten -year terns, 4 % compensation adjustment, and reduction of annual sell -back of unused administrative leave'fi•om a maximum of 40 hours to a maximum of 20 hours. The attached agreement contains some additional changes to accurately reflect the history of the City Attorney employment contract and the fact that the proposed contract is a renewal agreement rather than new agreement. However, the changes identified in this paragraph are the only material changes proposed for the City Attorney's contract. The attached agreement would replace in its entirety the Agreement for Employment of City Attorney entered July 1, 2013. The City Manager and City Attorney contracts have been made completely separate from all other City employment contracts and compensation plans, to allow maximum opportunity for the City Manager and City Attorney to participate in labor negotiations and other employment related matters without conflicts of interest. In the case of the City Attorney's contract, benefits not addressed in the body of the agreement are described in an exhibit to the agreement. Such benefits are based on but not directly linked to the Unit 8 compensation plan. A final copy of the proposed new contract for at -will employment of the City Attorney, as recommended by the Council subcommittee, is provided as Attachment 2 to this report. Also attached for reference as Attachment 3 is a redline copy of the existing City /Attorney contract showing the changes resulting in the proposed new contract. The term of the attached agreement, which would supersede and replace the current agreement, is ten years and would expire June 30, 2027. Under the attached agreement, the City Attorney's base salary would increase from $1$5,500.00 to $192,920.00, an increase of 4 %, effective March 27, 2017. K FINANCIAL IMPACTS The recommended action increases the City Attorney's base salary by $7,420 from $185,500 to $192,920. Total annual cost of this increase, including salary and benefits, is $7,808.00. The proposed new employment agreement would also reduce the potential for annual sell -back of unused administrative leave by 20 hours, from a maximum of 40 hours to a maximum of 20 hours. The value of the Administrative Leave give back is $1,784 per year, based oil the Attorney's current salary. ATTACHMENTS 1. Resolution 2. Exhibit A to Resolution -- New City Attorney At -Will Employment Agreement 3. Redline of Existing City Attorney At -Will Agreement 3 ATTACHMENT 1 Resolution No. 2017- N.C.S. of the City of Petaluma, California A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING A NEW AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY ATTORNEY WHEREAS, the Petaluma City Council appointed Eric Danly as City Attorney of the City of Petaluma by Resolution no. 2005 -205 adopted December 5, 2005; and WHEREAS, by the same resolution, the City Council approved the fourth amendment to an agreement for legal services originally executed August 29, 1991 with Meyers, Nave, Riback, Silver and Wilson; and WHEREAS, Eris Danly served as the Petaluma City Attorney as an employee of Meyers, Nave, Riback, Silver and Wilson pursuant to the agreement with the City of Petaluma begimling December 5, 2005; and WHEREAS, to. reduce overall legal service costs of the City the Petaluma, the City Council decided to provide for the City's legal service needs primarily through attorneys employed by the City rather than through legal service contracts and invited Eric Danly to - continue serving as the Petaluma City Attorney pursuant to an employment contract with the City and to establish an in-house legal services department for the City; and WHEREAS, the City Council approved an At Will Agreement for Employment of City Attorney with Eric Danly by Resolution 2013 -060 adopted June 3, 2013 and entered the agreement effective July 1, 2013. . WHEREAS, the City and City Attorney Eric Danly (the Parties) intend to enter anew At -Will Agreement for Employment of City Attorney effective March 27, 2017; and, WHEREAS, the term of the attached agreement, which would supersede and replace the At Will Agreement for Employment of City Attorney entered July 1, 2013, would expire June 30, 2027, and increase the City Attorney's base salary from $185,500.00 to $192;920.00, an increase of 4%, effective March 27, 2017, and provide, for continuation Eric Danly's perforinance of the duties and responsibilities of City Attorney for the City of Petaluma, arid reduction of annual sell -back of unused administrative leave from a maxlnli]m of 40 hours to ;,a maximum of 20 hours; and WHEREAS, in accordance with California Government Code section 54953, subdivision (c), paragraph (3), prior to taking final action on the proposed new At -Will 2 Agreement for Employment of City Attorney, an oral report of the recommended action on the compensation and 'other terms of employment of the City Attorney proposed pursuant to the new At -Will Agreement was provided at a duly noticed meeting of tile City Council; and WHEREAS, the City Council and City Attorney Eric Danly agree to the terms of Employment, Compensation, and Benefits relating to the position of City Attorney set forth in the First Restated At -Will Agreement for Employment of City Attorney attached as Exhibit A; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma as follows: 1. The City Council hereby approves the Hirst Restated At -Will Agreement for Employment of City Attorney, attached as Exhibit A and incorporated herein by reference. 2. The City Council authorizes and directs the Mayor to sign the agreement attached as Exhibit A on behalf of the City. 5 EXHIBIT A FIRST RESTATED AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY ATTORNEY Background The Petaluma City Council appointed Eric Danly as City Attorney of the City of Petaluma by Resolution no. 2005 -205 adopted December 5, 2005. By the same resolution, the City Council approved the fourth amendment to an agreement for legal services originally executed August 29., 1994 with Meyers, Nave, Riback, Silver and Wilson. Eric Danly served as the Petaluma City Attorney as an employee of Meyers, Nave, Riback, Silver and Wilson pursuant to the contract between the City of Petaluma and Meyers, Nave, Riback, Silver and Wilson -beginning December 5, 2005. To reduce overall legal service costs of the City the Petaluma, the City Council decided to provide for the City's legal service needs primarily through attorneys employed by the City rather than through legal service contracts, The City Council invited Eric Danly to continue serving as the Petaluma City Attorney pursuant to an employment contract with the City and to establish an in -house legal services department for the.City. The City approved an At Will Agreement for Employment of City. Attorney with Eric Danly by Resolution 2013 -060 adopted June 3, 2013 and entered the agreement effective July 1, 2013, Eric Danly desires to continue serving as the Petaluma City Attorney and to continue to develop the City's in -house legal services department in accordance with the City Council's direction. A subcommittee of the City Council has recommended a new at will agreement for einploymont of City Attorney to provide for the continuation of Eric Danly's service as Petaluma City Attorney. In accordance with the Council subcommittee recommendation and direction of the City Council, this First Restated At Will Agreement for Employment of City Attorney will, effective. March 27, 2017, supersede and replace the At Will Agreement for Employment of City Attorney entered July 1, 2013, and expire June 30, 2027. In addition, this agreement will increase the City Attorney's base salary from $185,500.00 to $192,920.00, an increase of 4%, and provide for reduction of annual sell -back of unused administrative leave from a maximum of 40 hours to a maximum of 20 hours, as well as for continuatio» of Eric Danly's performance of the_duties and responsibilities of City Attorney for the City of Petaluma, subject to the terms of this agreement. Agreement This First Restated At -Will Agreement. for Employment of City Attorney (the " AgreemenC) is made by the City of Petaluma, ( "the CITY "), a California charter city, and Eric W. Danly ( "ERIC DANLY "). The CITY and ERIC DANLY are referred to collectively in this At Will Agreement for Employment of City Attorney 2 Agreement as "the Parties. This Agreement will be effective March 27, 2017 (the "Effective Date"). The Parties agree as follows: X. Appointment of City Attorney: The. CITY acluiowledges the continuing appointment of ERIC DANLY as City Attorney of the CITY, Commencing on the Effective Date, ERIC DANL,Y's appointment as City Attorney will be pursuant to this Agreement. 2. Term: The term of this Agreement shall commence on the Effective Date and expire on June 30, 2027 or upon termination in accordance with Section 22. The Parties agree that in the month of July, 2026, the first month of the final year of the Agreement term, that they will meet to discuss whether they intend to renew this Agreement or permit it to expire in accordance with its terms. 3. At -Will Employment: ERIC DANLY will be an at -will employee of the CITY in accordance with California Labor Code Section 2922, and will serve at the pleasure of the City Council, The CITY's Personnel Rules, Policies, Procedures, Ordinances and Resolutions will not apply to ERIC DANLY, and nothing in this Agreement confers upon ERIC DANLY any right to or expectation of any right or property interest in continued employment by the CITY. If the CITY terminates ERIC DANLY's employment, whether with or without cause, ERIC DANLY will be entitled to only that due process that is provided by CITY Charter or ordinance, or this Agreement. Nothing in'this Agreement will limit the right of ERIC DANLY to resign at any time from his position with the CITY subject to requirements in Section 22 of this Agreement. 4. City Attorney Duties and Responsibilities: a. ERIC DANLY will continue performing the duties of City Attorney of the CITY pursuant to this Agreement commencing on the Effective Date. b. ERIC DANLY will serve as the City Attorney of the City of Petaluma, and will 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. ERIC DANLY agrees to remain in the exclusive employ of the CITY, and to devote his full productive time and attention to the CITTs business during the At Will Agreement for Ernploynient of City Attorney 7 term of this Agreement. However, ERIC DANLY may seek, and the City Council may give, its written permission for ERIC DANLY to occasionally teach or write during ERIC DANLY's time off. d. The CITY recognizes that ERIC DANLY is expected to devote necessary time outside normal office hours to business of the CITY. ERIC DANLY will be allowed to take reasonable time off for such work, as ERIC: DANLY deems appropriate, during normal office hours. As an exempt employee, ERIC DANLY will not receive overtime or extra compensation for work. performed outside normal business hours. However, ERIC DANLY will receive administrative leave in accordance with Section 9, subdivision (c), 5. Compensation: a. The CITY agrees to pay ERIC DANLY an annual base salary of $192,920.00, payable in installments at the same time that the other, Management employees of the CITY are paid. b. The CITY may increase ERIC DANLY'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 ERIC DANLY. G. Benefits: ERIC DANLY will be entitled to the benefits specified in Exhibit 1 which is attached to and made a part of this Agreement. T. Disability: If ERIC DANLY 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, the CITY will have the option to terminate this Agreement. Upon termination pursuant to this section, the CITY will have no obligation to hay severance pursuant to Section 23, 8. Use of Vehicle: ERIC DANLY tray use his privately -owned vehicle to conduct CITY business, in which case CITY will reimburse ERIC DANLY for actual business travel at the maximu►ii amount per mile then allowed by the Internal Revenue Service. ERIC DANLY may also use a CITY -owned vehicle to conduct CITY business, if one is available. At Will Agreement for Employment of City Attorney R1 9. Vacation, Sicic, Administrative and Holiday Leave: a. Upon the Effective Date, ERIC DANLY will continue to accrue vacation at the rate specified in Exhibit I that would apply to all employee employed by the City since December 5, 2005. b. Sick leave shall accrue and be credited to ERIC DANLY's personal account in accordance with Exhibit 1. C. Administrative leave shall be credited to ERIC DANLY's account at the rate of 12 days per year. Each year during the term of this Agreement ERIC DANLY may elect to receive a payment .equal to ERIC DANLY's unused administrative Leave balance in that year Of up to twenty (20) hours. ERIC DANLY may carry forward up to forty (40) hours of unused administrative leave into the next fiscal year. ERIC DANLY may not maintain a balance of more than 136 hours of administrative leave. Carry- forward administrative leave may only be taken as paid time off, has no cash value, and shall not be included in the totals subject to payment under Section 22, subdivision (a), paragraph (3). d. Holidays will be,credited to ERIC DANLY's account in accordance with Exhibit 1. 10. Disability, Health, and Life Insurance: a. The 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 (I- 1/2) times the amount of the annual base salary of ERIC DANLY in accordance with Section 5. b. The CITY agrees to provide and to pay the CITY's share of prerniurns for medical, dental, and vision insurance for ERIC DANLY and his dependents in accordance with Exhibit 1. ERIC DANLY will have the might to select medical, dental and vision coverage from the plan options specified in Exhibit 1. C., 'File CITY agrees to have in force and make required pren�iutil payments for ERIC DANLY's participation in the CITY's current group disability plan. 11. Ret%reinent: CITY agrees to. enroll ERIC DANLY in the California Public Retirement System, (PERS). CITY agrees to make all the appropriate contributions on ERIC DANLY's behalf; for the PERS employer share required, and to contribute on behalf or ERIC DANLY seven percent (71/o) of ERIC DANLY's base salary in accordance with Section At Will Agreement for Employment of City Attorney VJ S of this Agreement, as amended fi•om time to time, into the City of Petaluma 401 (A) Government Money Purchase Plan and Trust. 12. Dues and Subscriptions: Subject to budgetary approval by the CITY, the CITY agrees to pay for professional dues and subscriptions of ERIC DANLY necessary for ERIC DANLY's continuation and full participation in stational, regional, state and local associations and organizations necessary and desirable for ERIC DANLY's continued professional participations, growth and advancement and for the good of the CITY. 13. Professional Development: a. Subject to budgetary approval by CITY, the CITY agrees to pay for, to tine extent allowed by law, travel and subsistence expenses of ERIC DANLY for official travel, meetings and events as. necessary and appropriate to continue the professional development of ERIC DANLY and to adequately represent CITY at gatherings such as the IMLA annual conference, California League of Cities meetings and conferences, and such other national, regional, state and local governmental groups and committees in which ERIC DANLY may participate as a representative of the CITY. b. Subject to, budgetary approval by the CITY, the CITY agrees to pay for, to the extent, allowed by law, travel and subsistence expenses of ERIC DANLY for short courses, institutes and seminars that are necessary for ERIC DANLY's professional development and for the good of the CITY. 14. General >Cxpenses: The CITY recognizes that certain expenses of a non - personal nature may be incurred by ERIC DANLY for the benefit of the CITY in the, course ,of perfornr►ance of ERIC DANLY's duties and hereby agrees to reimburse or to pay such general expenses, and CITY's Finance Director is liereby 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, subject to budgetary approval. 15. Bonding: The CITY will beat the fiill cost of any fidelity or other bonds required of ERIC DANLY as City Attorney of the CITY raider any law or ordinance. At Will Agreement for Employment of City Attorney 11C. IC 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 may take no action regarding the provisions of this Agreement, unless both Parties agree or the action is for cause in accordance with Section 22, subdivision (e), paragraph (1). 17. Attorney Fees: In the event of any suit or action by either Party under this Agreement, the prevailing party in the suit or action will be entitled to reasonable attorney tees and costs to be fixed by the count. 18. Other Terms and Conditions of Employment: The CITY, in consultation with ERIC- DANLY, may fix any other terms and conditions of employment, as it may determine from time to time, relating to the performance of ERIC DANLY's duties as City Attorney, provided such terms and conditions are not inconsistent with or in conflict with the terms of this Agreement, the Petaluma City Charter, the Petaluma Municipal Code or any other applicable state or federal law. 19. Indemnification: a. The CITY will defend, hold harmless and indemnify ERIC DANLY against any tort, civil rights, personnel, discrimination; or professional liability claim or demand or other legal action, whether groundless or otherwise,; arising out of all alleged act or omission occurring in the performance of ERIC DANLY's duties as City Attorney 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, the CITY reserves the right to refuse to provide a defense of ERIC DANLY for the reasons set forth in California Government Code Section 995.2 or other applicable provisions of law. h. Following termination of this Agreement for any reason; the CITY agrees to hay ERIC DANLY reasonable consulting fees and travel expenses when ERIC DANLY serves as a witness,.advisor and /or consultant to the CITY regarding pending litigation. 20. Notices Notices pursuant to this Agreement must be in writing given by deposit in the custody of the United States Postal Service; first class postage prepaid, addressed as follows: At Will Agreement for Employment of City Attorney 11 a. CITY: Mayor and City Council I I English Street Petaluma CA 94952 b. ERIC DANLY Eric W. Danly City Attorney 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 will be deemed given as of the elate of personal service or as of the date of deposit of such written notice, postage prepaid, with the United States Postal Service. 21. Performance Evaluations: a. The City Council will review and evaluate ERIC DANLY's performance as City Attorney at least once annually in advance of the adoption of the annual operating budget. The review and evaluation will be in accordance with criteria developed jointly by CITY and ERIC DANLY. The criteria may be amended as the City Council may fiotn time to time determine and in consultation with ERIC DANLY. The City Council will conduct its evaluation of ERIC DANLY in closed session. The City Council will provide ERIC DANLY with the written evaluation and provide an adequate opportunity for ERIC DANLY to discuss the evaluation with the City Council. h. In recognition of ERIC DANLY's accomplishments and objectives,, and satisfactory performance; a potential annual merit increase may be negotiated following completion of the annual performance review and evaluation. C. Annually, the City Council and ERIC DANLY will define and reduce to writing such goals and performance objectives as they determine necessary for the proper operation of the CITY and the attainment of the City Council's policy objectives, and will further establish a relative priority among the various goals and objectives. The annual goals and objectives will generally be attainable within the time limitations as specified in the annual operating and capital budgets and appropriations provided. At Will Agreement for EmI loyment of City Attorney 12 d. In effecting this section, the City Council and ERIC DANLY mutually agree to abide by the provisions of applicable law. e. ERIC DANLY will coordinate with the City Manager to timely cause to be placed on the City Council agenda each year a closed session for purpose of ERIC DANLY's performance evaluation. 22. Termination of Employment; a. Termination by Either Party 1. The Parties may terminate this Agreement with or without cause by giving notice in accordance with this section and section 20 of this Agreement. 2, During the period following notice of termination by either Partyand until the termination becomes effective, all the rights and obligations of the Parties under this Agreement will remain in effect. 3. Upon separation from CITY' employment for any reason, ERiC DANLY will be paid for all earned, accrued, and unused vacation, administrative leave, and floating holidays, without limit. u. Termination By ERIC DANLY without Cause; 1. For purposes of this Agreement, termination by Eric Danly without cause will be deemed to occur when ERIC DANLY gives the City Council written notice of termination of this Agreement without cause as defined in this subdivision. 2. ERIC DANLY will give the CITY a minimum of sixty (60) days written notice in advance of termination without cause, unless the Parties agree otherwise. 3. For purposes of this Agreement, termination by ERIC DANLY without cause means termination in the absence of an uncured material breach by CITY of this Agreement as defined in subdivision (c) of this section. C. Termination by ERIC DANLY with Cause: 1. For purposes of this Agreement, termination by ERIC DANLY with cause will be deemed to occur when ERIC DANLY gives the City Council written notice of termination of this Agreement with cause as defined in this Subdivision. At Will Agreement for Employment of City Attorney 13 2. ERIC DANLY crust declare material breach of this Agreement in writing to the CITY specifying the basis for the declaration, and the CITY will have thirty (30) days from receipt of notice to cure the declared material breach. 3. For purposes of this Agreement, termination by ERIC DANLY with cause means termination for CITY's material breach of this Agreement declared by ERIC DANLY and not cured by the CITY in accordance with this subdivision. d. Termination by CITY without Cause. For the purposes of this Agreement, termination by CITY without cause will be deemed to occur when: 1. A majority of the City Council votes to terminate ERIC DANLY at a duly authorized public meeting without cause, as defined in subdivision (e), paragraph (l) of this Section. 2. The City Council, the citizens of the CITY, or California Legislature frets to amend any provisions of the City Charter, CITY codes, or other legislation pertaining to the role, powers, duties, authority, or responsibilities of the City Attorney in a way that substantially changes the form of CITY government or the role, powers, duties, authority or responsibilities of the City Attorney. ERIC DANLY will have the right to declare that such amendments in the absence of cause as defined in subdivision (e), paragraph (1) of this Section constitute termination without cause. 3. The City Council reduces the base salary; compensation or any other financial benefit of ERIC DANLY. ERIC DANLY will have the right to declare that such reduction in the absence of cause as defined in subdivision (e), paragraph (l) of this Section constitutes termination without cause. The CITY will give ERIC DANLY a minimum of sixty,(60) days written notice in advance of termination without cause in accordance with this subdivision unless the Parties agree otherwise. e. Termination by CITY i:or Cause: 1. For purposes of this Agreement, cause for termination by CITY means: At Will Agreement for Employnient'of City Attorney 14 A. Willfitl and repeated failure to perform the duties of City Attorney or other material breach of this Agreement declared in writing by CITY by notice in accordance with section 20 and not cured within thirty days of receipt of notice of the declared material breach; B. Conviction of ERIC DANLY for an employment related criminal act; C. Conviction of ERIC DANLY for a felony; or D. A finding by a court, jury; State or Federal Attorney General, the Fair Political Practices Commission, or anysucc'essor agency; that ERIC DANLY engaged in intentional or negligent misconduct in relation to the perforoiance of ERIC DANLY's duties as City Attorney. 2. Prior to terminating this Agreement for Cause, the CITY will give ERIC DANLY at least ten (10) days prior written notice of the charges or other alleged cause for termination. Within the ten -day notice period, but not earlier than five days after the notice has been given, the City Council will meet with ERIC DANLY in closed session and give ERIC DANLY an opportunity to address the City Council regarding the alleged cause for termination. ERIC DANLY may also choose to have complaints or charges brought against him heard in open session in accordance with California Government Code Section 54957, subdivision (b), paragraph 2. After hearing ERIC DANLY's response to the alleged cause for termination, the City Council will decide whether to terminate this Agreement and inform ERIC DANLY in writing of its decision. 3. ERIC DANLY will not be entitled to severance pursuant to Section 23 of this Agreement upon termination by CITY for cause in accordance with this subdivision. 23. Severance Pay: a. If CITY terminates this Agreement during its term without cause as defined in Section 22, subdivision (e), then ERIC DANLY will be entitled to ,a severance payment equal to seven (7) months of vase salary in accordance with Section 5 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 ERIC DANLY and all dependents as provided in Section 10, subdivision (b) for seven (7) mouths. At ERIC DANLY's election, and pursuant to ERIC DANLY's written instructions at the time of termination, severance pay shall be paid either in a IL11111) SUnI cash payment within thirty (30) days of the (late of termination, or in equal At Will Agreement for Employment of City Attorney 15 monthly payments. Should ERIC DANLY elect to receive severance pay in equal payments, the number of such monthly payments will not exceed seven (7). b. All payments required under subdivision (a) of this Section are subject to and shall be interpreted to comply with the limitations set forth in California Government Code Sections 53260 and 53261. The 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 ERIC DANLY finds other employment, whichever occurs first. c, If CITY terminates ERIC DANLY for cause in accordance with Section 22, subdivision (e), paragraph (1), lie will not be entitled to a severance payment. 24: Reimbursement Required for Conviction for Crime Involving, Abuse of Office: a. In accordance with California Government Code. Sections 53243, 53243. 1, and 53243.2, if ERIC DANLY is convicted of a crime involving an abase of his office or position, all of the following will apply: 1. If ERIC DANLY is provided with paid leave salary pending an investigation, ERIC DANLY must fully reimburse the CITY any salary provided for that purpose. 2. If the CITY pays for the legal criminal defense of ERIC DANLY; ERIC DANLY must fiilly reirnburse CITY any finds provided f6i that purpose. 3. If this Agreement is terminated, any cash settlement related to the termination that ERIC DANLY may receive from the CITY must be sully reimbursed to CITY, or, if a cash settlement related to termination of this Agreement has not yet been paid, the CITY is excused from paying the cash settlement. b. For the purposes of this section, abuse of office or position means either: 1, an abuse of public authority, including, but not limited to, waste, fi`aud, and violation of the law under color of authority; or 2. 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. At Will Agreement for E►nploynient of City Attorney ffj 25. Miscellaneous: a. This Agreement reflects the entire agreement between the Parties. This Agreement may not be modified, except by written agreement executed by both Parties. b. Upon the Effective Date, this Agreement shall replace in its entirety the At Will Agreement for Employment of City Attorney entered between the CITY and ERIC DANLY effective July 13, 2013. C. 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, will be deemed severable, will not be affected and will remain in effect. d. This Agreement will be governed by the laws of the State of California. e. The Parties agree that any ambiguity in this Agreement will not be, construed or interpreted against, or in favor of, either Party. f. This Agreement will bind and inure to the benefit of the successors, heirs and assigns of the Parties. ERIC DANLY BY Eric W. Danly, City Attorney DATED: ATTEST: Claire Cooper City Cleric CITY By David Glass, Mayor DATED: At Will Agreement for Employment of City Alton ley n 17 EXHIBIT 1 1. Vacation Leave Accrual Rate Vacation leave hours shall accrue at the rate specified in the schedule below: Completed Years of Service Hours Earned on an Annual Basis after Completed Years of Service Maximum Accrual Limit 1 128 384 2 136 408 3 144 432 4 152 456 5 160 480 6 168 504 7 176 528 8 184 552 9 192 576 10 years or more 200 600 The total amount of accrued but unused vacation may not exceed three (3) times the rate of annual accrual as specified in the schedule above. Upon separation from employment ERIC DANLY shall be paid for all accrued unused vacation leave. 2. Sick Leave A. Sick Leave — Eli 'btg zlzty Sick leave is not a right, which may used at discretion, but rather, sick leave shall be used only in case of personal illness, disability or the serious illness or injury of a family member, which requires the attention of ERIC DANLY. The term family members shall include: spouse, children, parents, spouse's parents, brothers, sisters or other individuals whose relationship to ERIC DANLY is that of a dependent or near dependent. B. Sick Leave — Accrual -Sick leave shall accrue at the rate of eight (8) hours for each month of continuous service. C. Sick Leave — Transfer If ERIC DANLY wishes to donate hours of sick leave to another employee he may do so by sending a written request to the Human Resources office naming the individual to receive the sick leave and the amount donated, with the following restrictions: a. ERIC DANLY must retain a minimum of 160 hours of sick leave to be eligible to transfer sick leave. 18 b. Transfer amounts shall be limited to the number of actual hours needed and used by the receiving employee. C. Any donated sick leave hours unused by recipient shall be returned to the donor. The employee receiving the sick leave transfer must have zero (0) hours of accrued sick leave, vacation, and CTA leave on the books. d. Employees may not buy or sell sick leave. Only the time may be transferred. e. Employees may not transfer sick leave upon separation of service. £ Transfer of sick leave shall be allowed. g. No more than ninety (90) workdays of sick leave may be received by an employee for any one illness or injury. D. Sick Leave — Retirement Pam In the event of the death or retirement and the completion of ten (10) or more years of continuous employment with the City, ERIC DANLY shall be paid or shall receive a benefit of fifty percent (50 %) of his accumulated but unused sick leave not to exceed four - hundred - eighty (480) hours. He may elect not to receive this benefit and instead place all sick leave hours into the Ca1PERS sick leave conversion benefit. 3. Holidays and Holiday Leave The City observes the following twelve (12) holidays: 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 The actual date of the observed holidays is determined by City Council resolution each fiscal year. Holiday leave shall be provided at the rate of eight (8) hours for each of the holidays observed. If participating in an alternate 4/10 or 9/80 schedule, ERIC DANLY shall use his own leave to fulfill the requirement of recording total hours taken off for the holiday. 4. Floatuig Holiday Each fiscal year ERIC DANLY shall be provided one 8 -hour floating holiday which may be taken by him at a time he selects, subject to operational requirements of the City. 19 5, Health Benefits A. 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 each employee shall be the minimum required by PEMHCA. The City pays this contribution directly to Ca1PERS. B. Additional Benefit Amount Paid by the City The City shall pay the additional contribution amount specified in the schedule below entitled "Maximum Additional Benefit Contributed by the City" for ERIC DANLY and his covered family members. Coverage 2013 Health plan Rate City PEMHCA Contribution Maximum Additional Benefit Contributed by the City Total Benefit Contributed by the city Single $665.38 $115.00 $522.86 $637.86 2-Party 2-Party $1,330.76 $115.00 $1,154.97 U269.97 Family $1,729.98 $115.00 $1,534.23 $1,649.23 The 2014 Ca1PERS Premium for Kaiser - Bay - Area /Sacramento and required 2014 PEMHCA Contribution is unknown. Effective January 1, 2014 the City shall pay an additional benefit that depends upon the actual percentage increase in the Kaiser- Bay - Area /Sacramento premium. The City's additional benefit contribution for 2014 shall be up to a 9% increase of the 2013 Health Plan Rate specified in schedule above, less the City's PEMHCA contribution, times 95% or an amount equal to the actual 2014 Ca1PERS Health Premium for Kaiser -Bay- Area/Sacramento, less the City's PEMHCA contribution, times ninety -five percent (95 %) for ERIC DANLY and his covered family members, whichever is less. C. Additional Benefit— Effective January 1, 2014 20 Up to 9% Increase of 2013 City s Maximum Coverage Health Plan Rate PEMHCA Additional Benefit or actual 2014 Contribution Contributed Kaiser Rate, by the City whichever is less Up to 9% Increase of 2013 Health Plan Rate Up to $725.26 or specified in section 21.6, less the City's Single actual whichever Unknown PEMHCA contribution, times 95% or the actual is less 2014 CalPERS Health Premium for Kaiser -Bay- Area/Sacramento, less the City's PEMHCA contribution, times 95 %, whichever is less. Up to $1,450.53 2 -Party or actual Unknown whichever 20 D. Additional Contribution Capped at 2014 Rate The amount of the City's additional contribution shall be capped at the contribution levels established effective January 1, 2014, and shall not increase, regardless of whether or not premiums increase in the future, unless approved by the City Council. E. ERIC DANLY' S Contribution ERIC DANLY 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. 6. Health Benefits — Retired A. Retired — CalPERS and PEMHCA 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 a retired employee to be eligible to receive health benefits through CalPERS upon retirement, a retired employee must meet the following definition of "annuitant! ' under Ca1PERS law: i. Employee must be a member of CalPERS; and ii. 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 Ca1PERS. For calendar year 2013, the formula for determining the City's PEMHCA contribution for retirees is as follows: 19 years in the PEMHCA program x 5% = 95% x $115 (minimum employer contribution for 2013) _ $109.25 Effective calendar year 2014, the "unequal contribution" method for health care premium payments for annuitants (retirees) will be at the twenty year mark. Thus, the City's contribution for the PEMHCA program will be at 100% (5% x 20 years). Therefore the monthly employer contribution for annuitants is the required minimum PEMHCA contribution. 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. C. CalPERS Annuitant — PEMHCA Health Benefits In accordance with the PEMHCA provisions if an employee is a CalPERS annuitant as defined by CalPERS and receives health benefits under the 21 is less Up to $1,885.68 Family Y Or actual Unknown whichever is less D. Additional Contribution Capped at 2014 Rate The amount of the City's additional contribution shall be capped at the contribution levels established effective January 1, 2014, and shall not increase, regardless of whether or not premiums increase in the future, unless approved by the City Council. E. ERIC DANLY' S Contribution ERIC DANLY 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. 6. Health Benefits — Retired A. Retired — CalPERS and PEMHCA 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 a retired employee to be eligible to receive health benefits through CalPERS upon retirement, a retired employee must meet the following definition of "annuitant! ' under Ca1PERS law: i. Employee must be a member of CalPERS; and ii. 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 Ca1PERS. For calendar year 2013, the formula for determining the City's PEMHCA contribution for retirees is as follows: 19 years in the PEMHCA program x 5% = 95% x $115 (minimum employer contribution for 2013) _ $109.25 Effective calendar year 2014, the "unequal contribution" method for health care premium payments for annuitants (retirees) will be at the twenty year mark. Thus, the City's contribution for the PEMHCA program will be at 100% (5% x 20 years). Therefore the monthly employer contribution for annuitants is the required minimum PEMHCA contribution. 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. C. CalPERS Annuitant — PEMHCA Health Benefits In accordance with the PEMHCA provisions if an employee is a CalPERS annuitant as defined by CalPERS and receives health benefits under the 21 PEMHCA, the employee is eligible to receive the City's PEMHCA contribution amount specified below, regardless of the number of years of service with the City of Petaluma. D. 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. E. 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 by CalPERS and enrolled in the CalPERS health benefit program is eligible to receive the City's PEMHCA. contribution amount specified in the chart below: Calendar Year City Monthly PEMHCA contribution 2013 $109.25 2014 Minimum PEMHCA contribution as set by CalPERS. F. 20 Years or More of Service — Not Receivina PEMHCA Health Benefits A retired employee with twenty (20) or more years of service with the City of Petaluma who is not enrolled in the CalPERS health benefits program shall receive direct payments in the amount of one - hundred -forty dollars ($140.00) each month, effective the first month following the expiration of health benefit coverage. G. 20 Years or More of Service — Receivina PEMHCA Health Benefits A retired employee with twenty (20) years or more of service with the City of Petaluma who is a CalPERS annuitant as defined by CalPERS and enrolled in the CalPERS health benefit program shall receive a benefit payment of one- hundred- forty dollars ($140.00) per month minus the City's monthly PEMHCA and specified in the chart below. The following chart indicates the amount of the City's PEMHCA contribution and the amount of the cash payment to the retiree when the retiree is receiving PEMHCA health benefits: Calendar City Monthly City Monthly Cash Retiree Total Year PEMHCA Benefit Benefit contribution Amount 2013 $109.25 $30.75 $140.00 Minimum PEMHCA Total benefit amount of $140.00 2014 contribution as set by minus City monthly PEMHCA $140.00 CalPERS. contribution It is the responsibility of the retiree to notifythe City in writing if he or she is no longer participating in the CalPERS health benefit program. Following receipt of the written notice, the City will commence direct payment of the one - hundred - forty dollars ($140.00) at the beginning of the following month. 22 7. 8. California Public Employees' Retirement System Effective January 1, 2013 the City of Petaluma became subject to the Public Employees' Pension Reform Act of 2013 (PEPRA) and benefits offered to newly hired employees will be in accordance with PEPRA. Prior to January 1, 2013, the City established a different level of benefits (two- tiered retirement) for Miscellaneous employees. The amended contract provides that Miscellaneous employees hired on or after December 28, 2012 shall receive the 2% at 60 formula retirement plan and the three -year final average compensation. The City's contract with Ca1PERS includes the following optional benefits: • Third Level - 1959 Survivor's Benefit as provided in Section 21573 (April 5, 1999). • Military Service Credit as provided in Section 21024 (January 1, 1992). • Credit for Unused Sick Leave as provided in Section 20965 (November 1, 1980). • Cost of Living Allowance two percent (2 %) as provided by Section 21329 (April 1, 1971). • Retired Death Benefit of five - hundred dollars ($500.00) as provided in Section 21620 (December 1, 1969). • Death Benefit Continues as provided in Section 21551 (January 1, 2000). • Prior Service Credit as provided in Section 20055 (January 1, 1950). The City shall defer that portion of ERIC DANLEY'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. Cash In -Lieu of Health and Dental Benefits If ERIC DANLY has health and or dental benefit insurance coverage from a source other than the City, or health and dental benefit insurance coverage from a City employee, 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. The cash in -lieu amount for health coverage shall be in the amount of fifty percent (50 %) of the health insurance premium amount of the Ca1PERS Kaiser — Bay- Area/Sacramento that the City would otherwise pay for the employee and his or her 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. Upon declining medical and /or dental insurance, he will be required to meet the terms and conditions regarding the 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 23 medical and /or dental plan, 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 shall make available to ERIC DANLY an Internal Revenue Code (IRC) Section 125 plan. The Section 125 plan is subject to federal law and plan provisions. The Section 125 Plan offered by the City provides a tax savings through the following programs: Pre -Tax Health Insurance Premiums This program allows employees to pay his or her share of health insurance premiums with pre -tax dollars. Flex Spending Accounts (FSAs) i. 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. ii. Dependent Care Reimbursement This program permits employees to pay for most child and or dependent care expenses with pre -tax dollars. 10. Dental Insurance The City shall provide a dental plan and pay the total premium costs for ERIC DANLY and his eligible dependents. The maximum benefit amount is one - thousand - five - hundred dollars ($1,500.00) 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 The City shall provide a vision plan and pay the total premium costs for ERIC DANLY and his eligible dependents. The vision plan shall provide 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 The City will provide an Employee Assistance Program to ERIC DANLY and his immediate family. This licensed counseling service will provide assistance and referrals for marriage and family problems, alcohol and drag dependency, emotional, personal, and stress - related concerns and other issues. All counseling services are confidential. M 13. Long Term Disability Insurance The City shall provide ERIC DANLY with the same long -term disability benefit plan as provided to City employees as outlined in Attachment 1 — Long Term Disability Insurance for Employees of City of Petaluma. Currently. that benefit plan is provided through CIGNA and replaces 60% of annual earnings to a maximum of $3,000 per month after being disabled for 60 days. 14. Deferred Compensation The City of Petaluma shall make available to ERIC DANLY a Deferred Compensation Plan. 15. .Industrial Injury Leave Benefits shall be payable in situations where ERIC DANLY'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 benefits, he shall receive full pay. Following this period, sick leave may be a supplement to the workers' compensation 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 that 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 benefits plus sick leave. Sick leave for industrial injury shall not be allowed for a disability resulting from sickness, self - inflicted injury, or willful misconduct. The City may retire ERIC DANLY 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 his Agreement. 16. Bereavement Leave ERIC DANLY 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 the employee has a relationship in loco parentis. Up to an additional eight (8) hours of accrued sick leave may be granted to supplement bereavement leave. In the event ERIC DANLY 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. 25 17. Victims of Domestic Violence and Sexual Assault Leave The City of Petaluma provides appropriate leave, in accordance with California Labor Code Section 230. 18. Military Leave The City of Petaluma shall grant military leave benefits to eligible employees in accordance with California's Military Leave Laws found in Military & Veteran's Code 389 et seq., the Federal Uniformed Services Employment and Re- employment Rights Act (USERRA), found at 389 U.S.C. 4301 et seq., and the City of Petaluma Resolution No. 2004 -200 N.C.S. Employees in the Ready Reserves of the Armed Forces who are ordered to active military duty or training under Executive Order 13223, shall have continued benefits in effect throughout his/her active duty training for a period of three - hundred sixty -five (365) calendar days or until the date of discharge from military service, whichever occurs first, unless this policy is changed by action of the City Council, 19. Election Officer and Voting Leave If ERIC DANLY' 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. He must provide the City with at least two (2) working days' notice that he will be taking time off to vote. 20. School Visitation Leave The City of Petaluma provides up to forty (40) hours of unpaid leave in a year to participate in the child's school activities, in accordance with Labor Code section 230.8. 21. Leave of Absence without Pay The City Council may grant ERIC DANLY with a leave of absence without pay pursuant to State and Federal Law. Good cause being shown by a written request, the City Council 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 ERIC DANLY setting forth the reason for the request, and the approval will be in writing. 22. Jury Duty Leave Should ERIC DANLY be 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. He 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 Junes this compensation shall not extend beyond twenty (20) working days. 26 23. Family Care and Medical Leave (FMLA & CFRA.) FMLA and /or CFRA Leave The City shall provide family and medical care leave for ERIC DANLY 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). If possible, employees must provide thirty (30) days advance notice of leave. FMLA and /or CFRA — Second Opinion ERIC DANLY shall provide the City with a health care provider certification. The 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. 27 ATTACHMENT 1 Group Disability Insurance Certificate City of Petaluma K. *] IMPORTANT NOTICES If you reside in one of the following states, please read the important notices below: Arizona, Florida and Maryland residents: The group policy is issued in the state of Delaware and will be governed by its laws. If you reside in a state other than Delaware, this certificate of insurance may not provide all of the benefits and protections provided by the laws of your state. PLEASE READ YOUR CERTIFICATE CAREFULLY. Texas residents: IMPORTANT NOTICE: To obtain information or make a complaint: You may call Special Marketing Division's toll -free telephone number for information or to make a complaint at 1- 800 - 441 -1832. You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at 1- 800 - 252 -3439. You may write the Texas Department of Insurance: P O Box 149091 Austin, TX 78714 -9104 FAX # (512) 475 -1771 PREMIUM OR CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the agent or company first. If the dispute is not resolved, you may contact the Texas Department of Insurance. AVISO IMPORTANTE: Para obtener informacion o Para someter una queja: Usted Puede llamar at numero de telefono gratis de Special Marketing Division Para informacion o Para sometar una queja at 1 -800- 441 -1832. Puede comunicarse con el Departamento de Seguros de Texas Para obtener informacion acerca de companias, coberturas, derechos o quejas at 1- 800 -252 -3439. . Puede escribir at Departamento de Seguros de Texas: P O Box 149091 Austin, TX 78714 -9104 FAX # (512) 475 -1771 DISPUTAS SOBRE PRIMAS O RECLAMOS: Si tiene una disputa concerniente a su prima o a un reclamo, debe comunicarse con el agente o la compania primero. Si no se resuelve la disputa, puede entonces comunicarse con el departamento (TDI). 29 FOREWORD Disability insurance provides individuals and their families with financial protection. The Disability Insurance Benefit described in this booklet will help secure your family's financial security in the event of your disability. The need for disability insurance protection depends on individual circumstances and financial situations. This valuable coverage should add an extra dimension to your personal insurance portfolio. In an effort to make your benefit program more comprehensive and responsive to your needs, your Employer is providing this insurance to you at no cost. 30 LIFE INSURANCE COMPANY OF NORTH AMERICA 1601 CHESTNUT STREET GROUP INSURANCE PHILADELPHIA, PA 19192 -2235 CERTIFICATE (800) 732 -1603 TDD (800) 552 -5744 A STOCK INSURANCE COMPANY We, the LIFE INSURANCE COMPANY OF NORTH AMERICA, have issued a Group Policy, LK- 960782, to TRUSTEE OF THE GROUP INSURANCE TRUST FOR EMPLOYERS IN THE PUBLIC ADMINISTRATION INDUSTRY on behalf of City of Petaluma. This certificate describes the benefits and basic provisions of your coverage. You should read it with care so you will understand your coverage. This is not the insurance contract. It does not waive or alter any of the terms of the Policy. If questions arise, the Policy will govern. You may examine the Policy at the office of the Policyholder or the Administrator. This certificate replaces any and all certificates which may have been issued to you in the past under the Policy. r -r Gregory H. Wolf; President TL004704 O/O w2 31 TABLE OF CONTENTS SCHEDULEOF BENEFITS .......................................................................................... ..............................1 WHOIS ELIGIBLE ...................................................................................................... ............................... 3 WHENCOVERAGE BEGINS ..................................................................................... ............................... 3 WHENCOVERAGE ENDS ......................................................................................... ............................... 3 WHEN COVERAGE CONTINUES ............................................................................. ............................... 3 WHATIS COVERED ................................................................................................... ............................... 5 WHATIS NOT COVERED .......................... . .............. . ..................................................... I ..... I ..... I ..... I ... I... 9 CLAIMPROVISIONS .................................................................................................. .............................10 ADMINISTRATIVE PROVISIONS ............................................................................. .............................11 GENERALPROVISIONS ............................................................................................ .............................12 DEFINITIONS............................................................................................................... .............................12 DOMESTIC PARTNER RIDER ................................................................................... .............................16 32 Policy Effective Date: Policy Anniversary Date: Policy Number: SCHEDULE OF BENEFITS September 1, 2005 July 1 LK- 960782 Eligible Class Definition: All active, Full -time Employees of the Employer regularly working a minimum of 20 hours per week, excluding Part -time, Temporary, Seasonal and Retired Employees, Eligibility Waiting Period If you were hired on or before the Policy Effective Date: If you were hired after the Policy Effective Date Elimination Period No Waiting Period No Waiting Period 60 days Gross Disability Benefit The lesser of 60% of your monthly Covered Earnings rounded to the nearest dollar or your Maximum Disability Benefit. Maximum Disability Benefit $3,000 per month. Minimum Disability Benefit The greater of $100 or 10% of your Monthly Benefit prior to any reductions for Other Income B enefits. Disability Benefit Calculation The Disability Benefit payable to you is figured using the Gross Disability Benefit, Other Income Benefits, calculation of Optimum Ability and the Return to Work Incentive. Monthly Benefits are based on a 30 -day month. The Disability Benefit will be prorated if payable for any period less than a month. During any month you have no Disability Earnings, the monthly benefit payable is the Gross Disability Benefit less Other Income Benefits, and less the calculation for Optimum Ability. During any month you have Disability Earnings, benefits are determined under the Return to Work Incentive. Benefits will riot be less than the minimum benefit shown in the Schedule of Benefits except as provided under the section Minimum Benefit. "Other Income Benefits" means any benefits listed in the Other Income Benefits provision that you receive on your own behalf or for your dependents, or which your dependents receive because of your entitlement to Other Income Benefits. Return to Work - Incentive During any month you have Disability Earnings, your benefits will be calculated as follows. Your monthly benefit payable will be calculated as follows during the first 24 months disability benefits are payable and you have Disability Earnings: 33 1. Add your Gross Disability Benefit and Disability Earnings. 2. Compare the sum from 1. to your Indexed Earnings. 3. If the sum from 1. exceeds 100% of your Indexed Earnings, then subtract the Indexed Earnings from the sum in 1. 4. Your Gross Disability Benefit will be reduced by the difference from 3., as well as by Other Income Benefits and the calculation for Optimum Ability, 5. If the sum from 1. does not exceed 100% of your Indexed Earnings, your Gross Disability Benefit will be reduced by Other Income Benefits and the calculation for Optimum Ability. After disability benefits are payable for 24 months, the monthly benefit payable is the Gross Disability Benefit reduced by Other Income Benefits, the calculation for Optimum Ability and 50% of Disability Earnings. No Disability Benefits will be paid, and insurance will end if we determine you are able to work under a modified work arrangement and you refuse to do so without Good Cause. Calculation for Optimum Ability The calculation for Optimum Ability is the earnings you could earn if working at Optimum Ability, minus Disability Earnings. Maximum Benefit Period Age When Disability Begins Age 62 or under Age 63 Age 64 Age 65 Age 66 Age 67 Age 68 Age 69 or older T1,004774 Maximum Benefit Period Your 65th birthday or the date the 42nd Monthly Benefit is payable, if later. The date the 36th Monthly Benefit is payable. The date the 30th Monthly Benefit is payable. The date the 24th Monthly Benefit is payable. The date the 21st Monthly Benefit is payable. The date the 18th Monthly Benefit is payable. The date the 15th Monthly Benefit is payable. The date the 12th Monthly Benefit is payable. 34 WHO IS ELIGIBLE If you qualify under the Class Definition shown in the Schedule of Benefits you are eligible for coverage under the Policy on the Policy Effective Date, or the day after you complete the Eligibility Waiting Period, if later. The Eligibility Waiting Period is the period of time you must be in Active Service to be eligible for coverage. Your Eligibility Waiting Period will be extended by the number of days you are not in Active Service. Except as noted in the Reinstatement Provision, if you terminate your coverage and later wish to reapply, or if you are a former Employee who is rehired, you must satisfy a new Eligibility Waiting Period. You are not required to satisfy a new Eligibility Waiting Period if your insurance ends because you no longer qualify under your Class Definition, but you continue to be employed, and within one year you qualify again. Ti.004710 WHEN COVERAGE BEGINS You will be insured on the date you become eligible, if you are not required to contribute to the cost of this insurance. If you are not in Active Service on the date your insurance would otherwise be effective, it will be effective on the date you return to any occupation for your Employer on a Full -time basis. T1,004712 WHEN COVERAGE ENDS Your coverage ends on the earliest of the following dates: 1. the date you are eligible for coverage under a plan intended to replace this coverage; 2. the date the Policy is terminated; 3. the date you are no longer in an eligible class; 4. the day after the end of the period for which premiums are paid; 5. the date you are no longer in Active Service; 6. the date benefits end because you did not comply with the terms and conditions of the insurance coverage. If you are entitled to receive Disability Benefits when the Policy terminates, Disability Benefits will be payable to you if you remain disabled and meet the requirements for the insurance. Any later period of Disability, regardless of cause, that begins when you are eligible under another disability coverage provided by any employer, will not be covered. TI,007505.00 WHEN COVERAGE CONTINUES This provision modifies the When Coverage Ends provision to allow insurance to continue under certain circumstances if you are no longer in Active Service. Insurance that is continued under this provision is subject to all other terms of the When Coverage Ends provisions. Your Disability Insurance will continue if your Active Service ends because of a Disability for which benefits under the Policy are or may become payable. Your premiums will be waived while Disability Benefits are payable. If you do not return to Active Service, this insurance ends when your Disability ends or when benefits are no longer payable, whichever occurs first. 35 If your Active Service ends due to personal or family medical leave approved timely by the Employer, insurance will continue for you for up to 12 weeks, if the required premium is paid when due. If your Active Service ends due to any other leave of absence approved in writing by the Employer prior to the date you cease work insurance will continue for you for up to 12 Months if the required premium is paid. An approved leave of absence does not include layoff or termination of employment. If your Active Service ends due to any other excused short term absence from work that is reported to the Employer timely in accordance with the Employer's reporting requirements for such short term absence, your insurance will continue until the earlier of: a. the date your employment relationship with the Employer terminates; b, the date premiums are not paid when due; c. the end of the 30 day period that begins with the first day of such excused absence; d. the end of the period for which such short term absence is excused by the Employer. Notwithstanding any other provision of this policy, if your Active Service ends due to layoff, termination of employment, or any other termination of the employment relationship, insurance will terminate and continuation of insurance under this provision will not apply. If your insurance is continued pursuant to this When Coverage Continues provision, and you become Disabled during such period of continuation, Disability Benefits will not begin until the later of the date the Elimination Period is satisfied or the date you are scheduled to return to Active Service. Ti.004716 TAKEOVER PROVISION This provision applies to you only if you are eligible under this Policy and were covered for long term disability coverage on the day prior to the effective date of this Policy under the Prior Plan provided by the Policyholder or by an entity that has been acquired by the Policyholder. A. This section A applies to you if you are not in Active Service on the day prior to the effective date of this Policy due to a reason for which the Prior Plan and this Policy both provide for continuation of insurance. If required premium is paid when due, we will insure an Employee to which this section applies against a disability that occurs after the effective date of this Policy for the affected employee group. This coverage will be provided until the earlier of the date: (a) you return to Active Service, (b) continuation of insurance under the Prior Plan would end but for termination of that plan; or (c) the date continuation of insurance under this Policy would end if computed from the first day you were not in Active Service. The Policy will provide this coverage as follows: 1. If benefits for a disability are covered under the Prior Plan, no benefits are payable under this Plan. 2. If the disability is not a covered disability under the Prior Plan solely because the plan terminated, benefits payable under this Policy for that disability will be the lesser of: (a) the disability benefits that would have been payable under the Prior Plan; and (b) those provided by this Policy. Credit will be given for partial completion under the Prior Plan of Elimination Periods and partial satisfaction of pre- existing condition limitations. B. The Elimination Period under this Policy will be waived for a Disability which begins while you are insured under this Policy if all of the following conditions are met: 1. The Disability results from the same or related causes as a Disability for which monthly benefits were payable under the Prior Plan; 2. Benefits are not payable for the Disability under the Prior Plan solely because it is not in effect; 36 3. An Elimination Period would not apply to the Disability if the Prior Plan had not ended; 4. The Disability begins within 6 months of your return to Active Service and your insurance under this Policy is continuous from this Policy's Effective Date. C. Except for any amount of benefit in excess of a Prior Plan's benefits, the Pre - existing Condition Limitation will not apply if you were covered under a Prior Plan and satisfied the pre - existing condition limitation, if any, under that plan. If you did not fully satisfy the pre - existing condition limitation of that plan, credit will be given for any time that was satisfied under the Prior Plan's pre- existing condition limitation. Benefits will be determined based on the lesser of: (1) the amount of the gross disability benefit under the Prior Plan and any applicable maximums; and (2) those provided by this Policy. If benefits are payable under the Prior Plan for the Disability, no benefits are payable under this Policy. T11005108 DESCRIPTION OF BENEFITS WHAT IS COVERED Disability Benefits We will pay Disability Benefits if you become Disabled while covered under this Policy, You must satisfy the Elimination Period, be under the Appropriate Care of a Physician, and meet all the other terms and conditions of the Policy. You must provide to us, at your own expense, satisfactory proof of Disability before benefits will be paid. The Disability Benefit is shown in the Schedule of Benefits. We will require continued proof of your Disability for benefits to continue. Elimination Period The Elimination Period is the period of time you must be continuously Disabled before Disability Benefits are payable. The Elimination Period is shown in the Schedule of Benefits. A period of Disability is not continuous if separate periods of Disability result from unrelated causes. Disability Benefit Calculation The Disability Benefit Calculation is shown in the Schedule of Benefits. Monthly Disability Benefits are based on a 30 day period. They will be prorated if payable for any period less than a month. If you are working while Disabled, the Disability Benefit Calculation will be the Return to Work Incentive. Return to Work Incentive The Return to Work Incentive is shown in the Schedule of Benefits. You may work for wage or profit while Disabled. In any month in which you work and a Disability Benefit is payable, the Return to Work Incentive applies. We will, from time to time, review your status and will require satisfactory proof of earnings and continued Disability. Minimum Benefit We will pay the Minimum Benefit shown in the Schedule of Benefits despite any reductions made for Other Income Benefits. The Minimum Benefit will not apply if benefits are being withheld to recover an overpayment of benefits. 37 Other Income Benefits If Disability Benefits are payable to you under this Policy, you may be eligible for benefits from Other Income Benefits. If so, we may reduce the Disability Benefits by the amount of such Other Income Benefits. Other Income Benefits include: 1, any amounts received (or assumed to be received *) by you or your dependents under: - the Canada and Quebec Pension Plans; - the Railroad Retirement Act; - any local, state, provincial or federal government disability or retirement plan or law payable for Injury or Sickness provided as a result of employment with the Employer; - any sick leave or salary continuation plan of the Employer; - any work loss provision in mandatory "No- Fault" auto insurance. 2. any Retirement Plan benefits funded by the Employer. "Retirement Plan" means any defined benefit or defined contribution plan sponsored or funded by the Employer. It does not include an individual deferred compensation agreement; a profit sharing or any other retirement or savings plan maintained in addition to a defined benefit or other defined contribution pension plan, or any employee savings plan including a thrift, stock option or stock bonus plan, individual retirement account or 401(k) plan. 3. any proceeds payable under any franchise or group insurance or similar plan. If other insurance applies to the same claim for Disability, and contains the same or similar provision for reduction because of other insurance, we will pay for our pro rata share of the total claim. "Pro rata share" means the proportion of the total benefit that the amount payable under one policy, without other insurance, bears to the total benefits under all such policies. 4. any amounts received (or assumed to be received *) by you or your dependents under any workers' compensation, occupational disease, unemployment compensation law or similar state or federal law payable for Injury or Sickness arising out of work with the Employer, including all permanent and temporary disability benefits. This includes any damages, compromises or settlement paid in place of such benefits, whether or not liability is admitted. 5. any amounts paid because of loss of earnings or earning capacity through settlement, judgment, arbitration or otherwise, where a third party may be liable, regardless of whether liability is determined. Dependents include any person who receives (or is assumed to receive *) benefits under any applicable law because of your entitlement to benefits. *See the Assumed Receipt of Benefits provision. Increases in Other Income Benefits Any increase in Other Income Benefits during a period of Disability due to a cost of living adjustment will not be considered in calculating your Disability Benefits after the first reduction is made for any Other Income Benefits. This section does not apply to any cost of living adjustment for Disability Earnings. Lump Sum Payments Other Income Benefits or earnings paid in a lump sum will be prorated over the period for which the sum is given. If no time is stated, the lump sum will be prorated over five years. If no specific allocation of a lump sum payment is made, then the total payment will be an Other Income Benefit. W Assumed Receipt of Benefits We will assume you (and your dependents, if applicable) are receiving benefits for which you are eligible from Other Income Benefits. We will reduce your Disability Benefits by the amount from Other Income Benefits we estimate are payable to you and your dependents. We will waive Assumed Receipt of Benefits, except for Disability Earnings for work you perform while Disability Benefits are payable, if you: 1. provide satisfactory proof of application for Other Income Benefits; 2, sign a Reimbursement Agreement; 3. provide satisfactory proof that all appeals for Other Income Benefits have been made unless we determine that further appeals are not likely to succeed; and 4. submit satisfactory proof that Other Income Benefits were denied. We will not assume receipt of any pension or retirement benefits that are actuarially reduced according to applicable law, until you actually receive them. Social Security Assistance We may help you in applying for Social Security Disability Income (SSDI) Benefits, and may require you to file an appeal if we believe a reversal of a prior decision is possible. We will reduce Disability Benefits by the amount we estimate you will receive, if you refuse to cooperate with or participate in the Social Security Assistance Program. Recovery of Overpayment We have the right to recover any benefits we have overpaid. We may use any or all of the following to recover an overpayment: 1. request a lump sum payment of the overpaid amount; 2, reduce any amounts payable under this Policy; and /or 3. take any appropriate collection activity available to us. The Minimum Benefit amount will not apply when Disability Benefits are reduced in order to recover any overpayment. If an overpayment is due when you die, any benefits payable under the Policy will be reduced to recover the overpayment, Successive Periods of Disability A separate period of Disability will be considered continuous: 1. if it results from the same or related causes as a prior Disability for which benefits were payable; and 2. if, after receiving Disability Benefits, you return to work in your Regular Occupation for less than 6 consecutive months; and 3, if you earn less than the percentage of Indexed Earnings that would still qualify you to meet the definition of Disability/Disabled during at least one month. Any later period of Disability, regardless of cause, that begins when you are eligible for coverage under another group disability plan provided by any employer will not be considered a continuous period of Disability. For any separate period of disability which is not considered continuous, you must satisfy a new Elimination Period. 39 LIMITATIONS Limited Benefit Periods We will pay Disability Benefits on a limited basis for a Disability caused by, or contributed to by, any one or more of the following conditions. Once 24 monthly Disability Benefits have been paid during your lifetime, no further benefits will be payable for any of the following conditions: 1. Alcoholism 2. Anxiety disorders 3. Delusional (paranoid) disorders 4. Depressive disorders 5. Drug addiction or abuse 6. Eating disorders 7. Mental illness 8. Somatoform disorders (psychosomatic illness) If, before reaching your lifetime maximum benefit, you are confined in a hospital for more than 14 consecutive days, that period of confinement will not count against your lifetime limit. The confinement must be for the Appropriate Care of any of the conditions listed above. Pre - Existing Condition Limitation We will not pay benefits for any period of Disability caused or contributed to by, or resulting from, a Pre- existing Condition. A "Pre- existing Condition" means any Injury or Sickness for which you incurred expenses, received medical treatment, care or services including diagnostic measures, took prescribed drugs or medicines, or for which a reasonable person would have consulted a Physician within 3 months before your most recent effective date of insurance. The Pre- existing Condition Limitation will apply to any added benefits or increases in benefits. This limitation will not apply to a period of Disability that begins after you are covered for at least 12 months after your most recent effective date of insurance, or the effective date of any added or increased benefits. n,D07500.00 ADDITIONAL BENEFITS Rehabilitation During a Period of Disability If we determine that you are a suitable candidate for rehabilitation, we may require you to participate in a Rehabilitation Plan and assessment at our expense. We have the sole discretion to approve your participation in a Rehabilitation Plan and to approve a program as a Rehabilitation Plan. We will work with you, the Employer and your Physician and others, as appropriate, to perform the assessment, develop a Rehabilitation Plan, and discuss return to work opportunities. The Rehabilitation Plan may, at our discretion, allow for payment of your medical expense, education expense, moving expense, accommodation expense or family care expense while you participate in the program. If you fail to fully cooperate in all required phases of the Rehabilitation Plan and assessment without Good Cause, no Disability Benefits will be paid, and insurance will end. TL007501.00 M Survivor Benefit We will pay a Survivor Benefit if you die while Disability Benefits are payable to you for a continuous period of Disability. The Survivor Benefit will equal 100% of the sum of the last full Disability Benefit payable to you plus the amount of any Disability Earnings by which the benefit had been reduced for that month. A single lump sum payment equal to 3 monthly Survivor Benefits will be payable. We will pay the Survivor Benefit to your Spouse. If you do not have a Spouse, we will pay your surviving Children in equal shares. If you do not have a Spouse or any Children, we will pay your estate. "Spouse" means your lawful spouse. "Children" means your unmarried children under age 21 who are chiefly dependent upon you for support and maintenance. The term includes a stepchild living with you at the time of your death. T1,005 107 TERMINATION OF DISABILITY BENEFITS Benefits will end on the earliest of the following dates: 1. the date you earn from any occupation, more than the percentage of Indexed Earnings set forth in the definition of Disability applicable to you at that time; 2. the date we determine you are not Disabled; 3. the end of the Maximum Benefit Period; 4. the date you die; 5. the date you refuse, without Good Cause, to fully cooperate in all required phases of the Rehabilitation Plan and assessment; 6. the date you are no longer receiving Appropriate Care; 7. the date you fail to cooperate with us in the administration of the claim. Such cooperation includes, but is not limited to, providing any information or documents needed to determine whether benefits are payable or the actual benefit amount due. Benefits may be resumed if you begin to cooperate fully in the Rehabilitation Plan within 30 days of the date benefits terminated. TIA07502.00 WHAT IS NOT COVERED We will not pay any Disability Benefits for a Disability that results, directly or indirectly, from: 1. suicide, attempted suicide, or self - inflicted injury while sane or insane. 2. war or any act of war, whether or not declared. 3. active participation in a riot. 4. commission of a felony. 5. the revocation, restriction or non - renewal of your license, permit or certification necessary to perform the duties of your occupation unless due solely to Injury or Sickness otherwise covered by the Policy. In addition, we will not pay Disability Benefits for any period of Disability during which you are incarcerated in a penal or corrections institution. TL00750100 41 CLAIM PROVISIONS Notice of Claim Written notice of claim, or notice by any other electronic /telephonic means authorized by us, must be given to us within 31 days after a covered loss occurs or begins or as soon as reasonably possible. If written notice, or notice by any other electronic /telephonic means authorized by us, is not given in that time, the claim will not be invalidated or reduced if it is shown that notice was given as soon as was reasonably possible. Notice can be given at our home office in Philadelphia, Pennsylvania or to our agent. Notice should include the Employer's name, the Policy Number and the claimant's name and address. Claim Forms When we receive notice of claim, we will send claim forms for filing proof of loss. If we do not send claim forms within 15 days after notice is received by us, the proof requirements will.be met by submitting, within the time required under the "Proof of Loss" section, written proof, or proof by any other electronic /telephonic means authorized by us, of the nature and extent of the loss. Claimant Cooperation Provision If you fail to cooperate with us in our administration of your claim, we may terminate the claim. Such cooperation includes, but is not limited to, providing any information or documents needed to determine whether benefits are payable or the actual benefit amount due. Insurance Data The Employer is required to cooperate with us in the review of claims and applications for coverage. Any information we provide to the Employer in these areas is confidential and may not be used or released by the Employer if not permitted by applicable laws. Proof of Loss You must provide written proof of loss to us, or proof by any other electronic /telephonic means authorized by us, within 90 days after the date of the loss for which a claim is made. If written proof of loss, or proof by any other electronic/telephonic means authorized by us, is not given in that 90 day period, the claim will not be invalidated nor reduced if it is shown that it was given as soon as was reasonably possible. In any case, written proof of loss, or proof by any other electronic /telephonic means authorized by us, must be given not more than one year after the 90 day period. If written proof of loss, or proof by any other electronic /telephonic means authorized by us, is provided outside of these time limits, the claim will be denied. These time limits will not apply due to lack of legal capacity. Written proof that the loss continues, or proof by any other electronic /telephonic means authorized by us, must be furnished to us at intervals we require. Within 30 days of a request, written proof of continued Disability and Appropriate Care by a Physician must be given to us. Time of Payment Disability Benefits will be paid at regular intervals of not less frequently than once a month. Any balance, unpaid at the end of any period for which we are liable, will be paid at that time. To Whom Payable Disability Benefits will be paid to you. If any person to whom benefits are payable is a minor or, in our opinion is not able to give a valid receipt, such payment will be made to his or her legal guardian. However, if no request for payment has been made by the legal guardian, we may, at our option, make payment to the person or institution appearing to have assumed custody and support. m If you die while any Disability Benefits remain unpaid, we may, at our option, make direct payment to any of your following living relatives: your spouse, your mother, your father, your children, your brothers or sisters; or to the executors or administrators of your estate. We may reduce the amount payable by any indebtedness due, Payment in the manner described above will release us from all liability for any payment made. Physical Examination and Autopsy We may, at our expense, exercise the right to examine any person for whom a claim is pending as often as we may reasonably require. Also, we may, at our expense, require an autopsy unless prohibited by law. Legal Actions No action at law or in equity may be brought to recover benefits under the Policy less than 60 days after written proof of loss, or proof by any other electronic /telephonic means authorized by us, has been furnished as required by the Policy. No such action shall be brought more than 3 years after the time satisfactory proof of loss is required to be furnished. Time Limitations If any time limit stated in the Policy for giving notice of claim or proof of loss, or for bringing any action at law or in equity, is less than that permitted by the law of the state in which you live when the Policy is issued, then the time limit provided in the Policy is extended to agree with the minimum permitted by the law of that state. Physician/Patient Relationship You have the right to choose any Physician who is practicing legally. We will in no way disturb the Physician/patient relationship. TL004724 ADMINISTRATIVE PROVISIONS Premiums The premiums for this Policy will be based on the rates currently in force, the plan and the amount of insurance in effect. Reinstatement of Insurance Your coverage may be reinstated if your insurance ends because you are on an Employer approved unpaid leave of absence. Your insurance may be reinstated only if reinstatement occurs within 12 weeks from the date it ends due to an Employer approved unpaid leave of absence or must be returning from military service pursuant to the Uniformed Services Employment Act of 1994 (USERRA). For your insurance to be reinstated the following conditions must be met. 1. You must qualify under the Class Definition. 2. The required premium must be paid. 3. A written request for reinstatement and a new enrollment form for you must be received by us within 31 days from the date you return to Active Service. Your reinstated insurance is effective on the date you return to Active Service. If you did not fully satisfy your Eligibility Waiting Period or Pre- Existing Condition Limitation (if any) before your insurance ended due to an unpaid leave of absence, you will receive credit for any time that was satisfied. TL004722 43 GENERAL PROVISIONS Incontestability All statements made by the Employer or by an Insured are representations not warranties. No statement will be used to deny or reduce benefits or as a defense to a claim, unless a copy of the instrument containing the statement has been furnished to the claimant. In the event of death or legal incapacity, the beneficiary or representative must receive the copy. After two years from an Insured's effective date of insurance, or from the effective date of any added or increased benefits, no such statement will cause insurance to be contested except for fraud or eligibility for insurance. Misstatement of Age If an Insured's age has been misstated, we will adjust all benefits to the amounts that would have been purchased for the correct age. Workers' Compensation Insurance The Policy is not in lieu of and does-not affect any requirements for insurance under any Workers' Compensation Insurance Law. Assignment of Benefits We will not be affected by the assignment of your certificate until the original assignment or a certified copy of the assignment is filed with us. We will not be responsible for the validity or sufficiency of an assignment. An assignment of benefits will operate so long as the assignment remains in force provided insurance under the Policy is in effect. This insurance may not be levied on, attached, garnisheed, or otherwise taken for a person's debts. This prohibition does not apply where contrary to law. Clerical Error A person's insurance will not be affected by error or delay in keeping records of insurance under the Policy. If such an error is found, the premium will be adjusted fairly. T1,004na DEFINITIONS Please note, certain words used in this document have specific meanings. These terms will be capitalized throughout this document. The definition of any word, if not defined in the text where it is used, may be found either in this Definitions section or in the Schedule of Benefits. Active Service If you are an Employee, you are in Active Service on a day which is one of the Employer's scheduled work days if either of the following conditions are met. 1. You are performing your regular occupation for the Employer on a full -time basis. You must be working at one of the Employer's usual places of business or at some location to which the Employer's business requires you to travel, 2. The day is a scheduled holiday or vacation day and you were performing your regular occupation on the preceding scheduled work day. You are in Active Service on a day which is not one of the Employer's scheduled work days only if you were in Active Service on the preceding scheduled work day. 44 Appropriate Care Appropriate Care means the determination of an accurate and medically supported diagnosis of your Disability by a Physician, or a plan established by a Physician of ongoing medical treatment and care of your Disability that conforms to generally accepted medical standards, including frequency of treatment and care. Consumer Price Index (CPI -V�) The Consumer Price Index for Urban Wage Earners and Clerical Workers published by the U.S. Department of Labor. If the index is discontinued or changed, another nationally published index that is comparable to the CPI -W will be used. Covered Earnings Covered Earnings means your wage or salary as reported by the Employer for work performed for the Employer as in effect just prior to the date your Disability begins. Covered Earnings are determined initially on the date an Employee applies for coverage. A change in the amount of Covered Earnings is effective on the date of the change, if the Employer gives us written notice of the change and the required premium is paid. It does not include any amounts received as bonus, commissions, overtime pay or other extra compensation. Any increase in your Covered Earnings will not be effective during a period of continuous Disability. Disability/Disabled You are considered Disabled if, solely because of Injury or Sickness, you are: 1. unable to perform the material duties of your Regular Occupation; or 2. unable to earn 80% or more of your Indexed Earnings from working in your Regular Occupation: After Disability Benefits have been payable for 24 months, you are considered Disabled if, solely due to Injury or Sickness, you are: 1. unable to perform the material duties of any occupation for which you are, or may reasonably become, qualified based on education, training or experience; or 2. unable to earn 80% or more of your Indexed Earnings. We will require proof of earnings and continued Disability. Disability Earnings Any wage or salary for any work performed for any employer during your Disability, including commissions, bonus, overtime pay or other extra compensation. Employee For eligibility purposes, you are an Employee if you work for the Employer and are in one of the "Classes of Eligible Employees." Otherwise, you are an Employee if you are an employee of the Employer who is insured under the Policy. Employer The Employer who has subscribed to the Policyholder and for the benefit of whose Employees this policy has been issued. The Employer, named as the Subscriber on the front of this Policy, includes any affiliates or subsidiaries covered under the Policy. The Employer is acting as your agent for transactions relating to this insurance. You shall not consider any actions of the Employer as actions of the Insurance Company. 45 Full -time Full -time means the number of hours set by the Employer as a regular work day for Employees in your eligibility class. Good Cause A medical reason preventing participation in the Rehabilitation Plan. Satisfactory proof of Good Cause must be provided to us. Indexed Earnings For the first 12 months Monthly Benefits are payable, your Indexed Earnings are equal to your Covered Earnings. After 12 Monthly Benefits are payable, your Indexed Earnings are your Covered Earnings plus an increase applied on each anniversary of the date Monthly Benefits became payable. The amount of each increase will be the lesser of- 1 . 10% of your Indexed Earnings during your preceding year of Disability; or 2, the rate of increase in the Consumer Price Index (CPI -W) during the preceding calendar year. Injury Any accidental loss or bodily harm that results directly and independently from all other causes from an Accident. Insurability Requirement An eligible person satisfies the Insurability Requirement for an amount of coverage on the day we agree in writing to accept you as insured for that amount. To determine a person's acceptability for coverage, we will require you to provide evidence of good health and may require it be provided at your expense, Insurance Company The Insurance Company underwriting the Policy is named on your certificate cover page. References to the Insurance Company have been changed to "we ", "our ", "ours ", and "us" throughout the certificate. Insured You are an Insured if you are eligible for insurance under the Policy, insurance is elected for you, the required premium is paid and your coverage is in force under the Policy. Optimum Ability 1. for the first 24 months that benefits are payable, the greatest extent of work you are able to do in your Regular Occupation; 2. after 24 months, the greatest extent of work you are able to do in any occupation based on education, training or experience. Your ability to work is based on the following: 1. medical evidence you submitted; 2. consultation with your Physician; and 3. evaluation of your ability to work by not more than three Independent Experts if required by us. There is no cost to you for evaluation by an Independent Expert when required by us to determine Optimum Ability. The Independent Expert must be: 1, licensed, registered or certified as required by the laws of the state in which the evaluation is made; and 2. acting within the scope of that license, registration or certificate, Physician Physician means a licensed doctor practicing within the scope of his or her license and rendering care and treatment to an Insured that is appropriate for the condition and locality. The term does not include you, your spouse, your immediate family (including parents, children, siblings, or spouses of any of the foregoing, whether the relationship derives from blood or marriage), or a person living in your household. Prior Plan The Prior Plan refers to the plan of insurance providing similar benefits to you, sponsored by the Employer and in effect directly prior to the Policy Effective Date. A Prior Plan will include the plan of a company in effect on the day prior to that company's addition to this Policy after the Policy Effective Date. Regular Occupation The occupation you routinely perform at the time the Disability begins. In evaluating the Disability, we will consider the duties of the occupation as it is normally performed in the general labor market in the national economy. It is not work tasks that are performed for a specific employer or at a specific location. Rehabilitation Plan A written plan designed to enable you to return to work. The Rehabilitation Plan will consist of one or more of the following phases: 1. rehabilitation, under which we may provide, arrange or authorize education, vocational or physical rehabilitation or other appropriate services; 2 work, which may include modified work and work on a part-time basis. Sickness The term Sickness means a physical or mental illness. 47 Life Insurance Company of North America a stock insurance company Rider to Certificate Made a Part of Group Policy No. LK- 960782 Effective Date of Rider: September 1, 2005, or if later the Effective Date of the Employee's Certificate MODIFICATION OF GROUP DISABILITY CERTIFICATE TO ADD DOMESTIC PARTNER AS ELIGIBLE SURVIVOR UNDER THE SURVIVOR BENEFIT The Survivor Benefit are modified in the Policy and Certificate as follows: 1. All references to the term "Spouse" are replaced by "Spouse or Domestic Partner" except for the following references a.. The first reference to "Spouse" in the benefit text is changed to "Spouse, or Domestic Partner if there is no Spouse, ". b. The text pertaining to the definition of "Spouse" remains unchanged. 2. The following definition of Domestic Partner is added. "Domestic Partner" means a person who is registered as the Employee's domestic partner with the California Secretary of State. Except for the above, this Rider does not change the Group. Certificate to which it is attached. Life Insurance Company of North America By: Gregory H. Wolf, President M- 007152 -1.05 .; IMPORTANT CHANGES FOR STATE REQUIREMENTS If you reside in one of the following states, please read the important changes below. The provisions of your certificate are modified for residents of the following states. The modifications listed apply only to residents of that state, and only when the underlying provision is included in the certificate. Louisiana residents: The percentage of Indexed Earnings, if any, that qualifies an insured to meet the definition of Disability/Disabled may not be less than 80 %. Minnesota residents: The Pre - existing Condition Limitation, if any, may not be longer than 24 months from the insured's most recent effective date of insurance. Texas residents: Any provision offsetting or otherwise reducing any benefit by an amount payable under an individual or franchise policy will not apply. LIFE INSURANCE COMPANY OF NORTH AMERICA. (herein called the Company) Amendment to be attached to and made a part of the Group Policy A Contract between the Company and Policyholder: Trustee of the Group Insurance Trust for Employers in the Public Administration Industry Participating Subscriber: City of Petaluma (herein called the Subscriber) Policy No.: LK- 960782 The Company and the Subscriber hereby agree that the Policy is amended as follows: Effective July 1, 2011 the following rates will be in force for Class 1 for coverage under the Policy: $.43 per $100 of Covered Payroll Covered Payroll for an Employee will mean his or her Covered Earnings for the insurance month prior to the date the determination is made. However, an Employee's Covered Payroll will not include any part of his or her monthly Covered Earnings which exceed $5,000. No change in rates will be made until 24 months after the effective date of this Amendment. However, the Company reserves the right to change the rates at any time during a period for which the rates are guaranteed if the conditions described in the Changes in Premium Rates provision under the Administrative Provisions section of the Policy apply. Except for the above, this Amendment does not change the Policy in any way. FOR THE COMPANY Matthew G. Manders, President Date: May 24, 2011 Amendment No. 04 TL- 004780 50 EXHIBIT AB J FIRST RESTATE, AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY ATTORNEY Background The Petaluma City Council appointed Eric Dimly as City Attorney of the City of Petaluma by Resolution no. 2005 -205 adopted December 5, 2005. By the same resolution, She City Council approved the fourth amendment to an agreement for legal services originally executed August 29, 1991 with Meyers, Nave, Riback, Silver and Wilson. Eric Danly has- served as the Petaluma City Attorney.as an employee of Meyers, Nave, Riback, Silver and Wilson pursuant to the contract between the City of Petaluma and Meyers, Nave, Riback, Silver and Wilson si- ne-e- beeinnine Deeember 5, 2005. To reduce overall legal service costs of the City the Petaluma, the City Council has decided to provide for the City's legal service needs primarily through attorneys employed by the City gather than through legal service contracts. The City Council has- invited Eric Danly to continue serving as the Petaluma City Attorney pursuant to an employment contract with the City and to establish an in -house legal services department for the City, Toe City approved an Eric Danly.desires to continue servings as the Petaluma City Attorney and to establish ancontinue to develop the CitZs in -house legal services department €oF the QV in accordance with the City Council's, direction. A subcommittee of the City Council has recommended a ne In accordance with the Council subcommittee recommendation and direction of the City Council. this First Restated At Will Agreement for Employment of City Attorney. will. effective Agreement This First Restated At -Will Agreement for Employment of City Attorney (the "Agreement") is made by the City of Petaluma, ( "the CITY"), a California charter city,, and Eric W. Danly ("ERIC DANLY"). The CITY and ERIC DANLY are referred to collectively in this .t.Will Agreement for Employment of City Attorne- 11 ---- ---- --- ------------ Formatted. Font: (Default) nines New Roman, 12 pt )rmattedi Font: (Default) Times New Roman, Formatted; Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) rimes New Roman, 12 Pt Font: (Default) Times New ,1 Formatted: Font: (Default) Times New Roman, L 12. pt J 'Formatted: Font: (Default) Times New Roman, Formatted: Font; (Default) Times New Roman Formatted; Font: (Default) Times. New Roman 51 Agreement as "the Parties." This Agreement will be effective A 4y-i March 2T, 20173 (the "Effective Date'). The Patties agree as follows: 1. Appointment of City Attorney: The CITY acknowledges the continuing appointment of ERIC DANLY as City Attorney of the CITY. Commencing on the Effective Date, ERIC DANLY's appointmentas City Attorney will be pursuant to this Agreement. Term: The term of this Agreement shall commence on the Effective Date and expire on June 30. 2027 or upon teiinination in accordance with Section 22. The Parties agree that hi the month of July. 2026. the first month of the final vear of the Agreement term. that the will meet to discuss NVhether they intend to iynewthis Agreement or permit it to expire in accordance with its terms. Formatted: Font: (De fault) rimes New Roman Formatted: Font; (Default) Times New Roman ,At Wil IAgre ©rngnt for Employment of City;Attaryiey ; `. 21 ------------------------- ....... ---- - - - - -- - - - -- 52 3. At -Will Employment: ERIC DANLY will bean at -wilt employee of the CITY in accordance with California Labor Code Section 2922, and will serve at the pleasure of the City Council. The CITY's Personnel Rules, Policies, Procedures, Ordinances and Resolutions will not apply to ERIC DANLY, and nothing in this Agreement confers upon ERIC DANLY ally right to or expectation of any right or property interest in continued employment by the CITY. If the CITY terminates ERIC DANLY's employment, whether with or without cause, ERIC DANLY will be entitled to only that due, process that is provided by CITY Charter or ordinance, or this Agreement. Nothing in this Agreement will limit the right of ERIC DANLY to resign at any time from his position with the CITY subject to requirements in Section 22;ofthis Agreement, 4. City Attorney Duties and Responsibilities: a. ERIC DANLY will continue performing the duties of CityAttorney of the CITY pursuant to this Agreement commencing on the Effective Date, b. ERIC DANLY will serve as the City Attorney of the City of Petaluma, and will be vested with the powers, duties and responsibilities and perform the functions and ditties specified under the laws of the State of California, the;PeWuma City Charter and the Petaluma Municipal Cade, 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. e. ERIC DANLY agrees to remain in the exclusive employ of the CITY, and to devote his full productive time and attention, to the.CITY's business during the term of this Agreement, However, ERIC DANLY may seek, and the City Council may give, its written permission for ERIC DANLY to occasionally teach or write during ERIC DANLY's time off. d. The CITY recognizes that ERIC DANLY is expected to devote necessary time outside normal office hours to business of the CPTY. ERIC DANLY will be allowed to take reasonable time off for such work, as ERIC DANLY deems appropriate, during normal office hours. As an exempt employee, ERIC DANLY will not receive overtime or extra compensation for work performed outside norinal business hours. However, ERIC DANLY will receive administrative leave in accordance With Section 9, subdivision (c). i. Compensation: The CITY agrees to pay ERIC DANLY an annual base salary of $192$3,92590.00, payable in installments at the same time that the other management employees of the CITY are paid. Formatted: Font, (Default) nmesNew Roman Formattedi,Font: (Default)TimesN ¢ w Roman ,1f Will Agreement fog ----- oyment of --i— A--- -- i 53 The CITY may increase ERIC DANLY7s 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 ERIC DANLY. Benefits ERIC DANLY will be entitled to the benefits specified in Exhibit 1 which is attached to and made a part of this Agreement. Disability: If ERIC DANLY 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, the CITY will have the option to terminate this Agreement. Upon termination pursuant to this section, the CITY will have no obligation to pay severance pursuant to Section 23. Use of Vehicle: ERIC DANLY may use, his privately -owned vehicle to conduct CITY business, in which case CITY tvi11 reimburse ERIC DANLY for actual business travel at the maximum amount per mile then allowed by the Internal Revenue Service, ERIC DANLY may also use a CITY -owned vehicle to conduct CITY business, if one is available. 9. Vacation, Sick, Administrative and Holiday Leave: FDif� DANLY oral .. E IG DA141 V+.. u. u- cz. rm iTr- non- af�FH@�Ei� @i'- tii3i.@� acid- l} a} �-eFedht @�-tcn��csc-vrrrsrr-i —a pet-sanal aeeount, vaeatien at the mte of ten (1 0) t eurs per- me p4" ffiaxiflium-ef-elave rt"rn-thi Thetws -}yet e Bxhfl Upon the Effective Date, ERIC DANLY will continue to accrue vacation at the rate specified in Exhibit I that would apply to an employee employed by the City since December'5, 2005.er the >;i€fitive 43aEe -1i4. Sick leave shall accrue and be credited to ERIC DANLY'spersonal account in accordance with Exhibit 1. Formatted: font: (Default) Tlrnes New Roman Formattedt Pont: (Default) Tlmes New Roman ,At Will Agreement for Employment of City Attorney 54 10. 11. 12. Administrative leave shall be credited to ERIC DANLY's account at the rate of 12 days per year. Each year during the term of this Agreement ERIC DANLY may elect to receive a payment equalto ERIC DANLY's unused administrative leave balance in that year of up to #arty- hventy 20 - 40}4 o-urs. ERIC DANLY _ may carry forward up to forty (40) hours of unused administrative leave into the next fiscal year; ERIC DANLY may not maintain it balance of more than 136, hours of administrative leave. Carey- forward administrative leave may only be taken as paid time off, has no cash value, and shall not be included in the totals suliject.to payment under Section 22,'mbdivision (a), paragraph (3). d. Holidays will be credited to ERIC DANLY's account in accordance with Exhibit Disability, Health, and Life Insurance: a. The 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 (I- 1/2) times the amount of the annual base salary of ERIC DANLY in accordance with Section 5. b. The CITY agrees to provide and to pay the CITY's share of premiums for medical, dental, and vision insurance for ERIC DANLY and his dependents in accordance with Exhibit 1, ERIC DANLY will have the right to select medical, dental and vision coverage from the plan options specified in Exhibit -L C. The CITY agrees to have in force and make required premium payments for ERIC DANLY's participation in the C1TY's current group disability plan. Retirement: CITY agrees to enroll ERIC DANLY in the California Public Retirement System, (PERS). CITY agrees to make all the appropriate contributions on ERIC DANLY's behalf, for the PERS employer share required, and to contribute on behai f of ERIC DANLY seven percent (7 %) of ERIC DANLY's base salary in ,accordance with Section 5 of this Agreement, as amended from time to time, into the City of Petaluma 401 (A) Government Money Purchase Plan and Trost. Dues and Subscriptions: Formatted: Slrikelfitough' Subject to budgetary approval by the CITY, the CITY agrees to pay for professional dues and' subscriptions of ERIC DANLY necessary for ERIC DANLY's continuation and full participation innational, rcgioiial, state and local associations and organizations . necessary and desirable for ERICTDANLY's continued professional participation, growth and advancement and for the good of the CITY. s Formatted: Font: (Default) Times New Roman f Formatted: Font: (default) Times New Roman �1t Wlll Agreement for Emphyment of City Attorney, 5'---- - - - - -- .................................. - - - - -- -- 55 13. Professional Development: Subject to budgetary approval by CITY, the CITY agrees to pay for, to the extent allowed by law, travel and subsistence expenses of ERIC DANLY for official travel, meetings and events as necessary and appropriate to continue the professional development of ERIC DANLY and to adequately represent CITY at gatherings such as the LIv1L>A annual conference, California League of Cities meetings and conferences, and such other national, regional, state and local governmental groups and committees in which ERIC DANLY may participate as a representative of the CITY. Subject to budgetary approval by the CITY, the CITY agrees to pay for, to the extent allowed by law, travel and subsistence' expenses of URIC DANLY for short courses, institutes and seminars that are necessary foi• ERIC DANL.Y's professional development and for the good of the CITY. 14. General Expenses: The CITY recognizes that certain expenses of a non- personal nature may be incurred by ERIC DANLY for the benefit of the CITY in the course of performance of ERIC DANLY's duties and hereby agrees to reimburse or to pay such 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, subject to budgetary approval. 15. Bonding: The CITY will bear the full cost of any fidelity or other bonds required of ERIC DANLY as City Attorney of the CITY under any law or ordinanec. 16. Continuity: In the event or a change of the elected representation of the City Council, there will be a ninety (90) day period commencing upoii the seating of new City Council members when the City Council may tuke no action regarding the provisions of this Agreement, unless both Parties agree or the action is for cause "in accordance with Section 22, subdivision (e), paragraph (1). Formatted: f=ont: (Default) Times New Roman Formatted: font. (Default) -rimes New Roman 1t Wi11 Apreemen. for Employ. ......... entof City Attorney ; 6..----------- ----------------------------------- - - - - -- - - - -- 56 17. Attorney fees: In the event of any suit or action by either Party under this Agreement, the prevailing . party in the suit or action will be entitled to reasonable attorney fees and costs to be fixed by the court. 18, Other Terms and Conditions of Employment: The CITY, in consultation with ERIC DANLY, may fix any other terms and conditions of employment, `as it may determine $•om time to time, relating to the performance of ERIC DANLY's duties as City Attorney, provided such terms and conditions are not inconsistent with or in conflict with the terms of this Agreement, the Petaluma City Charter, the Petaluma Municipal Code or any other applicable state or federal law. 19. J udemniOcation: a. The CITY will defend, hold harmless and indemnify ERIC DANLY against any tort, civil rights, personnel, discrimination, or professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or pmission occurring in the performance of ERIC DANLY's duties as City Attorney in accordance with the provisions of California Government Code Section 825 and following, as amended Kom 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, the CITY reserves the right to refuse to provide a defense of ERIC DANLY for the reasons set forth in California Government Code Section 995.2 or other applicable provisions of law. b. Following termination of this Agreement for any reason,,the CITY agrees to pay ERIC DANLY reasonable consulting fees and travel expenses when ERIC DANLY serves as a witness, advisor and /or consultant to the CITY regarding pending litigation. 20. Notices: Notices pursuant to this Agreement must he 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 Formatted: Font: (Default) Times New Roman Formatted: Pont: (Default) Times New Roman ,�1t WilLApreerneut for_Employmeut otCity Attorney _; ;' r 57 b. ERIC DANLY: Eric W. Danly City Attorney 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 will 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. 21. Performance Evaluations: The City Council will review and evaluate ERIC DANLY's performance as City Attorney at least once annuallyin advance of the adoption of the annual operating budget. The review and evaluation will be in accordance with criteria developed jointly by CITY and ERIC DANLY, The criteria may be amended as the City Council may from time to time determine and in consultation with ERIC DANLY. The City Council will conduct its evaluation of ERIC DANLY in closed session, The City Council will provide ERIC DAM,Y with the written evaluation and provide an adequate, opportunity for ERIC DANLY to discuss the evaluation with the City Council. It. Iii recognition of ERIC DANLY's accomplishments and objectives, and satisfactory performance, a potential annual merit increase may be negotiated following completion of the annual performance review and evaluation. Annually; the City Council and ERIC DANLY will define and reduce to writing such goals and, performance objectives as they determine necessary for the proper operation of the CITY and the attainment of the City Council's policy objective's, and will further establish a relative priority among the various goals and objectives. The annual goals and objectives will generally be attainable within the time limitations as specified in the annual operating and capital budgets and appropriations provided. d. In effecting this section, the City Council and ERIC DANLY mutually agree to abide by the provisions of applicable law, C. ERIC DANLY will coordinate with the City Manager to timely cause to be placed on the City Council agenda each year :a closed session for purpose of ERIC DANLY's performance evaluation. Formatted: ront: (Default) limes New Roman Formatted: Pont: (Default) Times New ltoman .At.Will Agreement forEmployinent of City Attorney - - - -- 58 22: Termination of Employment: Termination by Either Party The Parties may terminate Agreement with or without cause by giving notice in accordance with this section and section 20 of this Agreement. 2. During the period following notice of termination by either Party and until the termination becomes effective, all the rights and obligations of the Parties under this Agreement will remain in effect, 3. Upon separation from CITY,employment for any reason, ERIC DANLY will be paid for all earned, accrued, and unused vacation, achninistrative leave, and floating holidays, without limit. b. Termination By ERIC DANLY without Cause: For purposes of this Agreement, termination by Eric Danly without cause will be deemed to occur when ERIC DANLY gives the City Council written notice of termination of this Agreement without cause as defined in this subdivision. ERIC DANLY will give the CITY a minimum of sixty (60) days written notice in advance of termination without cause, unless the Parties agree otherwise. 3'. For purposes of this Agreement, termination by ERIC DANLY without cause means termination in the absence of an uncured material breach by CITY of this Agreement as defined in subdivision (c) of this section. Termination by ERIC DANLY Mth Cause: For purposes of this Agreement, termination by ERIC DANLY with cause will be deemed to occur when ERIC DANLY gives the City Council written. notice of termination of this Agreement with cause as defined in this subdivision, 2. ERIC DANLY must declare material breach of this Agreement in writing to the CITY specifying the basis for the declaration, and the CITY will have thirty (30) days from receipt of notice to cure the declared material breach. 3. For purposes of this Agreement, termination by ERIC DANLY with cause means termination for CITY's material breach of this Agreement declared Formatted: Font; (Default) Times New Roman Formatted : Font: (Default) Times New Roman ,,t Will Agreement for Employment of City Attorney r' 59 by URIC DANLY and not cured by the CITY in accordance with this subdivision. d. Termination by CITY without Cause. For the purposes, of this Agreement, termination by CITY without cause will be deemed to occur when: 1. A majority of the City Council votes to terminate ERIC DANLY at a duly authorized public meeting without cause, as defined in subdivision (e), paragraph (1) of this Section. 2. The City Council, the citizens of the CITY, or the California Legislature acts to amend any provisions of the City Charter, CITY codes; or other legislation pertaining to the role, powers, duties, authority; or responsibilities of the City Attorney in away that substantially changes the form oFCITY government,or the role, powers, duties, authority or responsibilities of the City Attorney. ERIC DANLY will have the right to declare that such amendments in the absence of cause as defined in subdivision (e), paragraph (1) of this Section constitute termination without cause. 3. The City Council reduces the base salary, compensation or any other financial benefit of ERIC DANLY. ERIC DANLY will have the right to declare that such reduction in the absence of cause as defined in subdivision (e), paragraph (1) of this Section constitutes termination without cause, The CITY will give ERIC DANLY a minimum of sixty (60) days written notice in advance of termination without cause in accordance with this subdivision unless the Parties agree otherwise. Termination by CITY for Cause_ For purposes of this Agreement, cause for termination by CITY means: A. Willful and repeated failure to perform the duties of City Attorney or other material breach of this Agreement declared in writing by C1 'Y by notice in accordance with section 20 and not cured within thirty days of receipt of notice of the declared material breach; B. Conviction of ERIC DANLY for an employment related criminal act Formatted: Font: (Default) Times New Roman Formatted; Font: ( Default) Times New Roman alt Wit Agreement for Employment of Cif Attorney ,, 19. .......... ... ------- - - - - -- ----------- - - - - -- ; .1 C. Conviction of ERIC DANLY for a felony ;'or D. A finding by a court, jury, State or Federal Attorney General, the Fair Political Practices Commission, or any successor agency, that ERIC DANLY engaged in intentional or negligent misconduct in relation to the performance of ERIC DANLY's duties as City Attorney. Prior to terminating this Agreement for cause, the CITY will give ERIC DANLY at least ten(10) days prior written notice of the charges or other alleged cause for ,termination. Within the ten -day notice period, but not earlier than five days alter the notice has been given, the City Council will meet with ERIC DANLY in closed session and give ERIC DANLY an opportunity to address the City Councit regarding the alleged cause for termination. ERIC: DANLY may also choose to have complaints or charges brought against him heard in' open session in accordance with California Government. Code Section 51957, subdivision (b), paragraph 2. After hearing ERIC DANLY's response to the alleged cause for termination, the City Councit will decide whether to terminate this Agreement and inform ERIC DANLY In writing of its decision. 3. ERIC DANLY will not be entitled.to severance pursuant to Section 23 of this Agreement upon termination by CITY for cause in accordance with this subdivision. 23. Severance Pay: If CITY terminates` this Agreement during its term without cause as defined in Section 22, subdivision (e), then ERIC DANLY will be entitled to a severance payment equal to seven (7) months of base salary in accordance with Section 5 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 ERIC DANLY and all dependents as provided in Section 10, subdivision (b) for seven (7) months. At ERIC DANLY's election, and pursuant to ERIC DANLY's written instructions at the time of termination, severance pay shall be paid either in ,a. Iump sum cash payment within thirty (30) days of the date of termination, or in equal monthly payments. ShouldER1C DANLY elect to reeeiveseverance pay in equal payments, the number of such monthly payments will hot exceed seven (7). b. Ali payments required under subdivision (a) of this Section are subject to and shall be interpreted to comply with the limitations set forth in California Government Code Sections 53260 and 53261. The.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 ERIC DANLY finds other employment, whichcver oecu s first. _ Formatted: font: (Default) Times New Roman Formatted: font: (Default) limes New Roman At Will Agreement for Employment of City,Attorney / tl--------- - - - - -- - - - - -- -- _-- •------ - - - - -- ._.......e. -. t 61 c. If CITY ;terminates ERIC DANLY for cause in accordance with Section 22, subdivision (e), paragraph (1), he will not be entitled to a severance payment. 24. Reimbursement Required for Conviction for Crime Involving Abuse of Office: a. In accordance with California Covernntent Code Sections 53243, 53213.1, and 53243.2, if ERIC DANLY is convicted of a crime involving an abuse of his office or position, all of the following will apply: 1. If ERIC DANLY is provided with paid leave salary pending an investigation, ERIC DANLY must hilly reimburse the CITY any salary provided for that purpose. 2. If the CITY pays for the legal criminal defense of ERIC DANLY, ERIC DANLY must fully reimburse CITY any fu rids provided .for that purpose. 3. If this Agreement is terminated, any cash settlement related to the termination that ERIC DANLY may receive from the CITY must be Rilly reimbursed to CITY, or, if a cash settlement related to termination of this Agreement has not yet been paid, the CITY is excused from paying the cash settlement. b. For the purposes of this section,; abuse of office or position means either: 1. an abuse of public authority, .including, but not limited to, waste, fraud, and violation of the law under color of authority; or 2. 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. 25. Miscellaneous: a. sw-.-This Agreement reflects the entire agreement - between the Parties This Agreement may not'be modified,'exceptby written agreement executed by both Patties. A------------- '----- - -- - -- -- -----------------...-..., m--....-.. a.,--'""'--'--'--'--- -- --- -- ------- ------------------ gb, if any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or Formatted: Font: (Default) Times. New Roman, ij 12 pt Formatted: List Paragraph, Indent: Left: 0.5 ", Hanging: 0.5 ", Numbered + LeveL• 1 + Numbering'Style: a, b, c, ... + Start at: 1 •} Allgnment- Left+ Aligned at: 0.5".+ Indent at: o.7s' Formatted: Font: (Default) Times New Roman, a-," ' Formatted: Indent: Lek: 0 ", First line: D '' - ------ Formatted: List Paragraph, Indent: Left: 0,5 ", Hanging: 0.5 ", Numbered + level: i + Numbering Style: a, b, c, ...'+ Start at: 1 + Alignment: Left + Aligned at: 0.5" + Indent at: 0.75° Formatted: Font: (Default) Times New Roman,, 12 pt Formatted:Tont; (Default) Times New Roman At Will Agreement for Pmployntent of,City AttorYtey i ----------------------- -- -- ---- - -- - - - - -- 62 portion thereof, will be deemed severable, will not be affected and will remain in effect. de. This Agreement will be governed by the laws of the State of California. ed. The Parties agree that any ambiguity in this Agreement will not be construed or interpreted against, or in favor of, either Tarty. fe. This Agreement will bind and inure to the benefit of the successors, heirs and assigns of the Patties. ERIC DANLY 13y Eric W, Danly, City Attorney DATED: AT'T'EST: Claire Cooper City Clerk ISpoGeial Counsel CITY By David Glass,'Mayor DATED: rormatted: Font: (Default) Times New Roman Formatted: Font:. (Default) Times New Roman 1CWill Ag►ee►nent Pot En�ploymentot City Attorney 13�. 63