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HomeMy WebLinkAboutResolution No. 08-C0940 RESOLUTION NO. 08-C94 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING AN AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT PROVIDING FOR A SALARY INCREASE AND RETIREE HEALTH CARE BENEFITS WHEREAS, City Manager Francis Delach and the City entered into an Employment Agreement on May 16, 2005; and WHEREAS, the City Manager and the City amended the Employment Agreement on July 17, 2006 and September 4, 2007; and WHEREAS, the City Council recently conducted an evaluation of the City Manager and concluded that Mr. Delach's job performance exceeds all or most of the established measures for the job; and WHEREAS, as a result of the City Manager's particularly high performance, the City Council desires to award a five percent salary increase to the City Manager and to enter into a contract providing for merit increases and additional benefits; and WHEREAS, the City Attorney prepared an Amended and Restated City Manager Employment Agreement, incorporating the terms of the original Employment Agreement, dated May 16, 2005, as amended by the First and Second Amendment; and WHEREAS, the City Council has reviewed the Amended and Restated City Manager Employment Agreement, a copy of which is attached hereto as Exhibit "A'; and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Azusa as follows: Section 1. The Amended and Restated City Manager Employment Agreement attached hereto as Exhibit A is hereby approved. Section 2. The salary adjustment provided for in the Amended and Restated City Manager Employment Agreement shall be retroactive to June 1, 2008. Section 3. This Resolution shall become effective immediately upon its passage. 0 0 PASSED, APPROVED AND ADOPTED this 6th day of October, 2008. /B�a X9/" J eph R. Rocha, Mayor ATTES Vera Mendoza, City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) ss. CITY OF AZUSA ) _ I, Vera Mendoza, City Clerk of the City of Azusa, County of Los Angeles, State of California, hereby attest to the above signature and certify that Resolution No. 08-C94 was adopted by the City Council of said City of Azusa at a regular meeting of said Council held on the 6"' day of October, 2008, by the following vote: AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE Vera Mendoza, City Clerk APPROVED AS TO FORM: Sonia arvalho Be est & Krieger LL City Attorney 0 CITY OF AZUSA AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT This Amended and Restated City Manager Employment Agreement ("Agreement") is entered into as of the 6s' day of October, 2008 (the "Effective Date"), between the City of Azusa (hereinafter referred to as the "City") and Francis M. Delach hereinafter referred to as the "City Manager" or the "Employee"). City and City Manager/Employee are sometimes referred to in this Agreement as "Party" and collectively as "Parties." The above named Parties hereby mutually agree and promise as follows: 1. Recitals. 1.1 City and Employee entered into that certain City Manager Employment Agreement dated May 16, 2005 (hereinafter "Original Employment Agreement"), which is attached hereto for reference as `Exhibit A," whereby Employee agreed to serve as the City Manager for the City, and Executive Director of the Azusa Development Agency, the Industrial Development Authority, the Azusa Public Financing Authority and other agencies of the City. 1.2 City and Employee entered into that certain First Amendment to the Original Employment Agreement dated July 17, 2006 (hereinafter "First Amendment"), which is attached hereto for reference as "Exhibit B," whereby City and Employee amended the Original Employment Agreement. 1.3 City and Employee entered into that certain Second Amendment to the Original Employment Agreement dated September 4, 2007 (hereinafter "Second Amendment"), which is attached hereto for reference as "Exhibit C," whereby City and Employee amended the Original Employment Agreement, as amended by the First Amendment. 1.4 City and Employee now desire to amend and restate the Original Employment Agreement, as amended by the First Amendment and Second Amendment. 2. Term. This Agreement shall remain in effect for three (3) years unless terminated earlier in accordance with Section 12 or extended in writing after approval by both Parties. 3. Salary; Pay for Performance (Bonus); Credit for Performance. 3.1 Sala : City Manager's annual salary shall be Two Hundred Two Thousand Five Hundred Eighty Seven Dollars ($202,587) and shall be retroactive to June 1, 2008. 3.2 Pay for Performance: Following the City Manager's annual performance evaluation pursuant to Section 4 of this Agreement, and at the sole and absolute discretion of the City Council, the City Manager may be awarded a bonus up to ten percent (10%) of Employee's annual salary. Bonuses, if awarded, shall be awarded for positive performance that is clearly above and beyond the duties identified in both this Agreement and a performance work plan approved by the City Council. 3.3 401A Option: In the event. that Employee elects not to accept the health insurance benefit provided by City in accordance with Section 5 of this Agreement, Employee may elect to contribute the annual sum of the value of the foregone health insurance benefit to a 401A retirement program administered by the City. 3.4 [Intentionally Omitted] 3.5 Credit for Performance: Following the City Manager's annual performance evaluation pursuant to Section 4 of this Agreement, and at the sole and absolute discretion of the City Council, the City Manager may be awarded a bonus in the form of a credit of up to three (3) additional years of employment to be applied toward his Retiree Health Care Benefits, as specified in Section 6. This bonus, if awarded, shall be awarded for positive performance that is clearly above and beyond the duties identified in both this Agreement and a performance work plan approved by the City Council, and may be awarded with or without the bonus described in Section 3.2. 4. Performance Evaluation. On or before March 1, of each calendar year the City Attorney shall notify City Council that it shall conduct an evaluation of Employee in a noticed closed session meeting, to review Employee's performance and compensation. The evaluation of Employee's performance shall be based on the City Council's review of Employee's fulfilling his obligations as set forth in all of the following: this Agreement, a work plan approved by the City Council and any other written directive issued to Employee by the City Council. For purposes of this Section, a written directive may be in the form of correspondence from an individual member of the Council authorized to give such directive by a majority of the City Council or in the form of the official open and closed session minutes of the City Council. Notwithstanding any provision herein to the contrary, Employee serves at the will and pleasure of the City Council, as set forth in Section 12. 5. Fringe Benefits. Except as otherwise expressly provided for in this Agreement, the City shall provide to Employee those fringe benefits provided to department head/executive contract employees set forth in the Standard Benefits for Executive Contract Department Heads covering the Executive Management Employees. In addition, Employee shall receive the same PERS and PARS retirement benefits, health insurance benefits, the same long-term disability insurance benefits and the same life insurance benefit provided to non -sworn Executive Contract Department Heads and any future adjustments thereto. However, Employee shall not receive the following fringe benefits, which are set forth in the Executive Contract Department Head Standard Benefits: Deferred Compensation, Automobiles, Administrative leave, Sick leave and Vacation leave nor any benefits related to Education incentive or Longevity pay. Employee shall continue to receive a maximum of $14,000 per year toward the City's Deferred Compensation Plan, as previously authorized, notwithstanding Employee's non -receipt of the deferred compensation benefit set forth in the Executive Contract Department Head Standard Benefits. 6. Retiree Health Care Benefits Employee shall be entitled to retiree health care benefits in accordance with this Section 6. Employee shall be entitled to reimbursement for retiree health benefits in an amount equal the single coverage premium in the Employees' comprehensive health insurance plan. He shall be entitled to fifty percent (50%) at ten (10) years of employment, seventy five percent (75%) of at fifteen (15) years of employment and one hundred percent (100%) at twenty (20) years of employment. These benefits shall remain in effect for the duration of Employee's life. Although Employee's anniversary date is June 1, 2005, and he has approximately three (3) years of employment as of the Effective Date of this Agreement, City agrees to credit Employee with five (5) additional years of employment service, for purposes of calculating the benefits described in this Section, bringing his total years of employment, as of the Effective Date of this Agreement, to eight (8) years. 7. Transportation. 7.1 Auto Allowances Employee shall provide his own vehicle to be used in the performance of his duties, and the City shall provide a car allowance in the amount of $600.00 or another amount as approved by resolution adopted by three members of the City Council. Employee shall at all tunes maintain automobile liability insurance. 8. Sick Leave and Vacation Time 8.1 Sick Leave Employee shall upon the effective date of this Agreement be deemed to have 1040 hours of sick leave and Employee shall accrue up to ten (10) additional days of. sick leave per fiscal year during the term of this Agreement, provided, however, that at no time shall Employee's sick leave exceed 1040 hours. Employee shall not be entitled to 0 0 cash out any accrued, but unused, sick leave at any time. Sick leave may be taken by Employee when Employee is ill. 8.2 Administrative Leave Employee shall accrue eighty (80) hours per fiscal year during the tern of this Agreement. Employee shall not be entitled to cash out or carry over to any subsequent year any accrued, but unused, administrative leave at the end of each fiscal year. 8.3 Vacation Time Upon the effective date of this Agreement, Employee shall be deemed to. have four (4) weeks vacation leave (total 160 hours). Employee shall thereafter accrue . four (4) weeks vacation leave (total 160 hours) during each year of the term of this Agreement. Employee shall accrue no more than the maximum sum of two hundred forty (240) hours of vacation during each year of the term of this Agreement. Unused vacation time exceeding the maximum sum stated herein that is not cashed out on an annual basis in accordance with the same terms and conditions applicable to department heads as set forth in the Department Head'MOU shall not be reimbursed or payable to Employee by City. Once the maximum sum of vacation time has been accrued in a year, Employee shall stop accruing vacation time for that year. 9. Technology Benefits. 9.1 Technology Allowance The City shall provide Employee with a technology allowance of $125.00 per month to cover DSL service and home telephone service, as well as the following benefits: 9. 1.1 Cellular Phone During the term of this Agreement, the City shall provide Employee with a City issued cellular phone to be used primarily for City related business. The City shall pay for the cellular phone expenses. 9.1.2 Computer During the term of this Agreement, the City shall provide Employee a "laptop" computer for remote location access. A desktop computer shall also be provided for use in Employee's office at City Hall. 10. Expense Reimbursements Employee shall be reimbursed for reasonable business expenses incurred during the performance of his duties as City Manager. Employee must provide copies of receipts or other detail to the Finance Department prior to receiving reimbursement of business expenses. 11. Duties. 11.1 Statutory Duties Employee shall perform the duties of City Manager as prescribed by Section 2-90, et seg., of the Azusa Municipal Code. In addition to the powers and duties set forth in the Azusa Municipal Code, the City Manager shall have such powers and duties which are delegated to him by the City Council. The City Manager shall execute all powers and duties in accordance with the policies adopted by the City Council and the State of California Government Code. 11.2 City Manager and City Council Responsibilities. The City Manager shall be the Chief Executive Officer of the City, the Redevelopment Agency, and the Industrial Development Authority and Azusa Public Financing Authority. As such, the City Manager shall have the responsibility for implementing City Council policy, whereas the City Council shall retain the responsibility for formulating and. adopting said policy. The City Manager shall only implement that City Council policy which is approved by a majority vote of the City Council. The City Manager shall not take action to implement any action br participate in any activity concerning City policy without direction in the form of a majority vote of the City Council. The City Manager shall keep all members of the City Council informed of his progress in implementing City policy and shall ensure that all members of the City Council receive copies of all written work product, information or correspondence concerning City business requested by any one or more members of the Council. 11.3 Personnel Matters. The City Manager shall have the additional responsibility of organizing, reorganizing and arranging the staff of the City in such a way that in his judgment best serves the City. The City Manager shall have such responsibility in all personnel matters, including selection, assignment and transfer of employees in accordance with the Personnel Rules of the City. City Council Members, individually and collectively, will promptly refer to the City Manager for study and recommendations all criticisms, complaints and suggestions called to their attention concerning the foregoing matters. The City Manager shall promptly review such matters and report back to all members of the City Council within a reasonable period of time. The City Manager shall consult with City Council Members, individually or collectively, on any personnel matter when requested to do so by one or more City Council Members,, subj ect to the requirements of the Ralph M. Brown Act, Government Code Section 54050, et seg. 11.4 Other Duties. The City Manager (or his. designee) shall: (1) review all policies proposed to the City Council and make appropriate recommendations to the City Council; (2) annually, at a minimum, evaluate employees as provided for by California law and City policy; (3) advise the City Council of possible sources of funds that might be available to implement present or contemplated City programs or services; (4) maintain and improve his professional competence by available means, including subscribing to and reading of appropriate periodicals, and joining and participating in appropriate professional associations and their activities; (5) establish and maintain an appropriate community relations program; and (6) serve as liaison between the City Council and as its designated representative with respect to all employer-employee matters, and make recommendations to the City Council concerning those matters. Notwithstanding that a designee of the. City Manager may perform said duties; the City Manager shall be the person ultimately responsible to the City Council for the proper implementation of the duties and responsibilities described herein. 12. Termination. 12.1 At -Will Employee Employee shall serve at the will and pleasure of the City Council and may be removed from office (terminated) at any time for any reason or no reason upon the affirmative vote of at least three members of the City Council at a regularly scheduled, non -adjourned meeting of the City Council. Nothing in this Agreement shall prevent the City Council from terminating this Agreement and the services of Employee at its sole discretion. 12.2 Termination Not for Cause. If Employee is terminated not for cause, he shall receive as severance the then base monthly salary rate for the number of months, or portion thereof, remaining on the term of the Agreement. The maximum severance shall not be more than twelve (12) months base salary. A severance payment received under this Section 12 shall be Employee's sole and exclusive remedy for any and all claims for damages related to his employment pursuant to this Agreement. 12.3 Termination for Cause. If Employee is terminated for cause, then employee shall not be entitled to any severance benefits. Termination shall be for "cause", for the purpose of this paragraph; shall mean if Employee: (i) acts in bad faith and to the detriment of the City; (ii) refuses or fails to act in accordance with any specific direction or order of the City Council; (iii) exhibits misconduct or dishonesty in regard to his employment; or (iv) is convicted of a misdemeanor or felony crime, including but not limited to, crimes involving moral turpitude as defined by relevant case law substantially related to the functions and duties of the City Manager. "Cause" shall include, but not be limited to, theft, embezzlement, unlawful discrimination, commission of a felony, gross insubordination to the City Council, willful destruction of property, material dishonesty, repeated unexcused absences, or any other significant acts or omissions determined by the City Council to render the Employee unfit to continue his Employment with the City, willful unauthorized taking of City funds or property, failure to carry out the primary duties and responsibilities of his position for a period in excess of 30 days (but excluding time periods when Employee is disabled or on authorized leave) death, conviction of a felony, or gross misconduct. 12.3.1 - Removal for Cause The following are examples of the causes for which Employee may be disciplined or discharged: (a) Immoral or unprofessional conduct. (b) Terrorizing or terrorism as declared by Penal Code section 11410 et seq. (c) Dishonesty. (d) Incompetency. (e) Evident unfitness for service. (f) Physical or mental condition unfitting him or his to handle the affairs of the City. (g) Persistent violation of or refusal to obey the laws of the state or the City. (h) Conviction turpitude. 12.4 Resignation. of a felony or of any crime involving moral If Employee desires to resign his position, he will provide the City Council with at least sixty (60) calendar days notice, in writing. In the event Employee resigns from his employment with City, the Employee shall not be entitled to any severance pay. 12.5 Termination in Proximity to an Election The City Council shall not issue notice of termination, reduce Employee's salary or benefits or actually terminate Employee during or within sixty (60) days before or sixty (60) days after the date "of a regularly scheduled municipal election at which members of the City Council are elected. Notwithstanding the foregoing, the City retains it authority to "terminate for cause as explicitly provided for in Section 12.3 herein. 13. General Provisions. 13.1 This Agreement supersedes any and all other agreements, either oral or written, between the parties hereto with respect to the employment of Employee by the City and contains all of the covenants and agreements between the parties with respect to the employment of Employee by the City. 13.2 Each party agrees and acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein and that any 0 0 agreement, statement, or promise not contained in this Agreement shall not be valid or binding on either party. 13.3 Any modification of this Agreement will be effective only if made in writing and signed by both the Employee and the City after approval by the City Council. 13.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable; the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. 13.5 This Agreement shall be governed by and construed in accordance with the law of the State of California. 13.6 This Agreement shall be construed as a whole, according to its fair meaning, and not in favor or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. 13.7 Employee acknowledges that he has had an opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained.in this Agreement. [SIGNATURES ON FOLLOWING PAGE] 0 0 IN WITNESS WHEREOF, the parties have executed this Agreement on the 6N day of October, 2008. EMPLOYEE/CITY MANAGER ,�/'✓t /b 1tit rancis M. Delach CITY OF AZUSA !< " oseph R. Rocha Mayor ATTEST: Vera Mendoza City Clerk