HomeMy WebLinkAboutD-3 Staff Report - Interim City Manager Employment Agreement (2017)SCHEDULED ITEM
D-3
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: STEPHAN E. HUNT, CHIEF OF POLICE/ACTING CITY MANAGER
VIA: MARCO A. MARTINEZ, CITY ATTORNEY
DATE: AUGUST 21, 2017
SUBJECT: APPROVE A RESOLUTION AUTHORIZING THE APPOINTMENT OF A RETIRED
ANNUITANT AS INTERIM CITY MANAGER PURSUANT TO GOVERNMENT
CODE SECTION 21221(h); AND APPROVE AN EMPLOYMENT AGREEMENT
FOR INTERIM CITY MANAGER SERVICES BETWEEN THE CITY OF AZUSA
AND DON PENMAN
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt Resolution No. 2017-C60 authorizing the appointment of an Interim City Manager
pursuant to Government Code Section 21221(h); and
2. Approve an employment agreement for Interim City Manager services between the City
of Azusa and Don Penman, subject to any non-substantive changes made by the City
Attorney.
BACKGROUND:
After the resignation of the former City Manager, the City Council directed City staff to advertise the
City’s search for a permanent city manager. Advertisements announcing the vacancy have been placed
on the City’s website and other municipal websites. In addition, Staff has obtained proposals from
municipal search firms to conduct a wide-ranging search for a permanent City Manager. In the
meantime, the City Council reviewed the qualifications of several candidates for interim city manager at
special meetings held on July 24, 2017 and August 7, 2017. At the conclusion of those meetings, the
City Council directed the City Attorney to negotiate an employment services agreement for interim City
Manager services with Don Penman, pending clearance from the California Public Employees
Retirement System (CalPERS), which was obtained on August 3, 2017.
APPROVED
CITY COUNCIL
8/21/2017
ANALYSIS:
The appointment of an interim City Manager is necessary to fill a critical position within the City’s
administrative operations. The City Manager position is responsible for all of the administrative affairs
of the City and the operation of the City’s Light & Water Utility. Thus, in order to ensure that City
operations continue in an effective and efficient manner, a professional manager is needed.
Mr. Penman is the former City Manager of the City of Arcadia. He has also served in an interim city
manager capacity for the Cities of San Fernando, Temple City and Covina. In 2014, Mr. Penman served
as interim city manager of the City of Azusa. Thus, he is a uniquely qualified professional with an
extensive background in issues facing San Gabriel Valley foothill cities generally, and the City of Azusa
in particular. Mr. Penman is a retired PERS annuitant. Thus, under CalPERS rules as set forth in
Government Code Sections 21221(h) and 7522.56(d), his appointment cannot exceed working 960 hours
in any fiscal year. His starting date would be August 22, 2017. Other aspects of his employment
agreement are fairly basic. The agreement contains the following terms:
1. Salary of $95.43 per hour, not to exceed a total 960 hours during any fiscal year;
2. No additional health, retirement or insurance benefits of any type;
3. Reimbursement for any reasonable travel and mileage expenses incurred on behalf of the City;
and
4. Termination with 30 days’ notice.
FISCAL IMPACT:
There is no fiscal impact related to this employment contract as the prior city manager’s salary was
already budgeted. Further, Mr. Penman’s employment contract will not include any benefit costs.
Attachments:
(1) Resolution No. 2017-C60 Appointing Donald Penman as Interim City Manager and Approving
Employment Agreement
(2) Employment Agreement For the Position of Interim City Manager
RESOLUTION NO. 2017-C60
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AZUSA, CALIFORNIA, APPOINTING DONALD PENMAN AS
INTERIM CITY MANAGER AND APPROVING EMPLOYMENT
AGREEMENT
WHEREAS, Government Code Sections 21221(h) and 7522.56(d) address the temporary
employment of retirees in accordance with the California Public Employees’ Retirement System
(CalPERS) and permits the City Council to appoint a CalPERS retiree to a vacant position
requiring specialized skills during recruitment for a permanent appointment, and provides that
such appointment will not subject the retired person to reinstatement from retirement or loss of
benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and
WHEREAS, the position of City Manager for the City of Azusa is currently vacant and
the City is actively recruiting for this vacancy and needs to fill the position on a temporary basis
to prevent stoppage of public business until a permanent replacement is hired; and
WHEREAS, pending the recruitment, selection and employment of a City Manager, the
City Council desires to appoint Donald Penman as an interim appointment retired annuitant to
the vacant position of City Manager for the City under Government Code section 21221(h),
effective August 22, 2017, to provide the leadership, managerial and organizational skills
necessary to manage the City effectively and efficiently; and
WHEREAS, Donald Penman has years of management experience with an extensive
history in leading and managing public agencies, including previously serving as interim City
Manager for the City in 2014; and
WHEREAS, an appointment under Government Code section 21221(h) requires an
active, publicly posted recruitment for a permanent replacement; and
WHEREAS, the current status of this recruitment is as follows: advertisements
announcing the vacancy have been placed on the City’s website and other municipal websites,
and City staff has obtained proposals from municipal search firms to conduct a wide-ranging
search for a permanent City Manager; and
WHEREAS, it is understood by the City and Donald Penman that the combined total
hours to be served by Donald Penman in any fiscal year, for all CalPERS employers combined,
shall not exceed the 960-hour limitation set forth in California Government Code Section
21221(h) and Section 7522.56(d); and
WHEREAS, this Government Code Section 21221(h) appointment shall only be made
once and therefore will end on the date immediately preceding the date on which the permanent
appointment to the vacant position of City Manager for the City commences his or her
employment or, if earlier, the date that this appointment is terminated by the City or Donald
Penman; and
WHEREAS, the City Council has reviewed a proposed employment agreement by and
between Donald Penman and the City; and
WHEREAS, the compensation paid to retirees cannot be less than the minimum nor
exceed the maximum monthly base salary paid to other employees performing comparable
duties, divided by 173.333 to equal the hourly rate; and
WHEREAS, the hourly rate paid to Donald Penman will be $95.43; and
WHEREAS, Donald Penman has not and will not receive any other benefit, incentive,
compensation in lieu of benefit or other form of compensation in addition to this hourly pay rate.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF AZUSA AS FOLLOWS:
Section 1. All facts set forth in this Resolution are true and correct.
Section 2. Donald Penman has the specialized skills needed to perform the work
required of fulfill the responsibilities of the vacant position of City Manager until a permanent
City Manager is appointed and thereafter begins his or her service.
Section 3. The City Council hereby appoints Donald Penman as interim City Manager
effective August 22, 2017 pursuant to the authority provided under Government Code Section
21221(h) and 7522.56, during the recruitment, selection and employment of a permanent City
Manager, to provide the critically-needed, specialized skills necessary to manage the City.
Section 4. The employment agreement with Donald Penman, a copy of which is on file
with the City Clerk, is approved by the City Council, effective August 22, 2017.
Section 5. The Mayor is authorized to execute said agreement on behalf of the City, with
such technical amendments as may be deemed appropriate by the Mayor and City Attorney.
PASSED AND ADOPTED by the City Council of the City of Azusa at a regular
meeting held on the 21st day of August, 2017.
________________________________________________
Joseph Romero Rocha
Mayor
I HEREBY CERTIFY that the foregoing Resolution was duly adopted at a regular
meeting of said City Council on the 21st day of August 2017, by the following vote:
AYES: COUNCIL MEMBERS:
NAYS: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
________________________________________________
Jeffrey Lawrence Cornejo, Jr.
City Clerk
45635.01000\30047816.1
EMPLOYMENT AGREEMENT
For the Position Of
INTERIM CITY MANAGER
This Employment Agreement (“Agreement”) is made and entered into this _____ day of
August, 2017, by and between the CITY OF AZUSA (“CITY”), a California municipal
corporation, and DONALD E. PENMAN (“PENMAN”), an individual, on the following terms
and conditions:
RECITALS
A. CITY desires to employ the services of PENMAN as its interim City Manager to
carry out the duties and responsibilities of the City Manager position as provided for by the
Azusa Municipal Code, in consideration of and subject to the terms, conditions, and benefits set
forth in this Agreement.
B. PENMAN desires to accept employment as interim City Manager in consideration
of and subject to the terms, conditions, and benefits set forth in this Agreement.
C. PENMAN’S employment is authorized by Government Code §§ 7522.56 and
21221(h), which permit the City Council to appoint a California Public Employee ’s Retirement
System (“CalPERS”) retiree to a vacant position requiring specialized skills during recruitment
for a permanent appointment, and provide that such appointment will not subject the retired
person to reinstatement from retirement or loss of benefits so long as it is a single appointment
that does not exceed 960 hours in a fiscal year, inclusive of all hours worked for other CalPERS
employers.
D. PENMAN represents that he is a retired annuitant of CalPERS within the meaning
of Government Code § 21221(h) and acknowledges that his compensation is statutorily limited
as provided in Government Code § 21221(h). PENMAN acknowledges that he is restricted to
working no more than 960 hours for CITY, a state agency or other Ca1PERS contracting
agencies (collectively “CalPERS Agencies”) during CITY’s 2017-2018 fiscal year and any future
fiscal year for the duration of this Agreement. PENMAN represents that he has not received
unemployment compensation arising from any post-retirement employment with any CalPERS
Agencies during the 12-month period preceding the effective date of this Agreement. PENMAN
further represents that his CalPERS retirement date became effective prior to the 180 -day period
preceding the effective date of this Agreement.
E. CITY has determined that it is necessary to hire PENMAN, a retired annuitant,
because the position of interim City Manager requires special skills, and PENMAN, by virtue of
his significant experience as city manager and interim city manager in CITY and other cities, has
those special skills.
F. CITY received written confirmation from CalPERS confirming that PENMAN
may be appointed as interim City Manager after having served in the same position during a
different vacancy in the City Manager position.
45635.01000\30047816.1
OPERATIVE PROVISIONS
In consideration of the promises and covenants contained herein, the parties agree as
follows:
1. Position and Duties.
1.1 Position. PENMAN accepts employment with CITY as its interim City Manager
and shall perform all functions, duties and services set forth in Section 1.4 [Duties] of this
Agreement. PENMAN shall provide service at the direction and under the supervision of the
City Council. It is the intent of the parties that PENMAN, as the interim City Manager, shall
keep the City Council fully apprised of all significant ongoing operations of CITY. Toward that
end, PENMAN shall report directly to the City Council and will periodically, or as may be
otherwise specifically requested by the City Council, provide status reports to the City Council
on his activities and those of CITY.
1.2 Term. This Agreement shall become effective upon the date this Agreement and
PENMAN’s appointment as interim City Manager is approved by the City Council, unless a later
date is specified. Such effective date shall be the date first referenced above. PENMAN shall
commence the performance of his duties as the interim City Manager on August 22, 2017
(“Commencement Date”). This Agreement shall expire as of the first of the following to occur:
(i) upon the employment commencement date of a permanent City Manager employed by CITY;
or (ii) upon termination of the Agreement by either PENMAN or CITY as provided in Section 4
[Termination] of this Agreement.
1.3 At-Will. PENMAN acknowledges that he is an at-will, temporary employee of
CITY who shall serve at the pleasure of the City Council at all times during the period of his
service hereunder. The terms of CITY’s personnel rules, policies, regulations, procedures,
ordinances, and resolutions regarding City Administrative Personnel (collectively “Personnel
Policies”), as they may be amended or supplemented from time to time, shall not apply to
PENMAN, and nothing in this Agreement is intended to, or does, confer upon PENMAN any
right to any property interest in continued employment, or any due process right to a hearing
before or after a decision by the City Council to terminate his employment, except as is expressly
provided in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. Nothing contained
in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to
terminate the services of PENMAN, as provided in Section 1.2 [Term] or Section 4
[Termination]. Nothing in this Agreement shall prevent, limit or otherwise interfere with the
right of PENMAN to resign at any time from this position with CITY, subject only to the
provisions set forth in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. This at-
will employment Agreement shall be expressly subject to the rights and obligations of CITY and
PENMAN, as set forth in Section 1.2 [Term] or Section 4 [Termination] below.
1.4 Duties. PENMAN shall serve as the interim City Manager and shall be for the
Term of the Agreement be vested with the powers, duties and responsibilities of the City
Manager position as set forth in the Azusa Municipal Code, the terms of which are incorporated
herein by reference. PENMAN shall provide service at the direction and under the supervision
45635.01000\30047816.1
of the City Council. It is the intent of the parties that the interim City Manager shall keep the
City Council fully apprised of all significant ongoing operations of CITY. Toward that end,
PENMAN shall report directly to the City Council and will periodically, or as maybe otherwise
specifically requested by the City Council, provide status reports to the City Council on his
activities and those of CITY. It is the intent of the City Council for the interim City Manager to
function as the chief executive officer of CITY’s organization. Without additional
compensation, PENMAN shall provide such other services as are customary and appropriate to
the position of interim City Manager, including serving as the Executive Director of the CITY’s
Successor Agency to the former Redevelopment Agency, the Azusa Housing Authority, and the
Azusa Public Finance Authority, and the Azusa Utility Board together with such additional
services assigned from time to time by the City Council as may be consistent with California law
and the Azusa Municipal Code. The preceding and any additional duties shall be consistent with
the duties assigned to the City Manager position. PENMAN shall devote his best efforts and
full-time attention to the performance of these duties. Notwithstanding PENMAN’s duties as
interim City Manager, nothing in this Agreement shall be construed to prohibit direct
communications between the City Council and employees of CITY in a manner that is consistent
with the City’s personnel rules, administrative policies and City Council policies.
1.5 Hours of Work. PENMAN shall devote the time necessary to adequately perform
his duties as interim City Manager. The parties anticipate that PENMAN will work a sufficient
number of hours per week allocated between regular business hours and hours outside of regular
business hours including, without limitation, attendance at regular and special City Council
meetings, attendance at activities of Directed Organizations (as defined below), and attendance at
such community events and CITY functions as the Council may direct. Toward that end,
PENMAN shall be allowed reasonable flexibility in setting his own office hours, provided the
schedule of such hours provides a significant presence at City Hall, reasonable availability to the
City Council, CITY staff, and members of the community during regular CITY business hours
and for the performance of his duties and of CITY business. However in no event shall
PENMAN be required to work in excess of 960 hours per fiscal year for CITY, including hours
worked for other CalPERS Agencies during such fiscal years. Further, PENMAN is not
authorized to work hours in excess of 40 hours per week as doing so would result in an express
violation of the restrictions under Government Code Section 21221(h).
1.6 Directed Organizations. The City Council desires PENMAN to be reasonably
active in statewide, regional and/or local organizations as directed by the City Council that are
deemed necessary to maintain and contribute to the advancement of CITY’s interests and
standing (“Directed Organizations”). These Directed Organizations may include, without
limitation, participation in the San Gabriel Valley Council of Governments, Southern California
Association of Government, the California Contract Cities Association, the Independent Cities
Association and the League of California of Cities. CITY agrees to budget and, consistent with
that budget, pay for the dues and subscriptions of the interim City Manager necessary for his
participation in the Directed Organizations. CITY agrees to reimburse, as provided in Section
1.8 [Reimbursement] of this Agreement, PENMAN’s reasonable and necessary travel, business
and subsistence expenses for the activities related to the Directed Organizations.
45635.01000\30047816.1
1.7 Other Activity. In accordance with Government Code Section 1126, during the
period of his employment, PENMAN shall not accept, without the express prior written consent
of the City Council, any other employment or engage, directly or indirectly, in any other
business, commercial, or professional activity (except as permitted under Section 1.6 [Directed
Organizations]), whether or not to pecuniary advantage, that is or may be competitive with
CITY, that might cause a conflict-of-interest with CITY, or that otherwise might interfere with
the business or operation of CITY or the satisfactory performance of PENMAN’s duties as
interim City Manager.
1.8 Reimbursement. CITY shall reimburse PENMAN for reasonable and necessary
travel, subsistence and other business expenses incurred by PENMAN in the performance of his
duties. All reimbursements shall be subject to and in accordance with California law and CITY’s
adopted Reimbursement Policies.
2. Compensation.
2.1 Rate of Pay. For all services performed by PENMAN as the interim City Manager
under this Agreement, CITY shall pay PENMAN compensation at the rate of Ninety Five
Dollars and Forty-Three Cents ($95.43) per hour according to the payroll schedule in place for
CITY employees paid bi-weekly subject to the limitations provided below.
2.1.1 Compliance with CalPERS requirements. It is the intent of the parties to
compensate PENMAN only to the extent permitted under Government Code § 21221(h) and
corresponding CalPERS regulations and policy statements. The Rate of Pay set forth above is
based on the salary limitations established by Ca1PERS and is not less than the minimum, nor in
excess of the maximum, paid by the CITY to other employees performing comparable duties
(divided by 173.333 to equal an hourly rate) as listed on the CITY’s publicly-available pay
schedule. Such compensation shall be PENMAN’s sole compensation for his service under this
Agreement. Notwithstanding the foregoing, the CITY shall pay for workers’ compensation
insurance for PENMAN. Employee shall not be entitled to any additional benefits provided by
CITY to its employees, including, but not limited to, overtime pay, paid vacation, paid holiday
leave, paid sick leave, medical insurance, dental insurance, life insurance, deferred
compensation, disability insurance, unemployment insurance, and vehicle allowance.
2.1.2 Recordation and Reporting of Hours Worked. PENMAN will comply
with all applicable Ca1PERS regulations governing employment after retirement, including the
recordation and reporting of all hours worked for CITY to Ca1PERS as may be required. CITY
shall assist in any such reporting obligations to Ca1PERS. Additionally, PENMAN shall keep
CITY continually apprised of any hours worked by PENMAN for other CalPERS Agencies
during the term of this Agreement.
2.2 Benefits.
2.2.1 No Benefits. Pursuant to Government Code §21221(h) and related
CalPERS regulations and policy statements, PENMAN shall not receive from CITY any
45635.01000\30047816.1
benefits CITY commonly provides to its employees, including without limitation health, dental,
or vision insurance coverage, life insurance, gym programs, employee assistance programs, and
similar benefits.
3. Vacation and Leave.
3.1 No Leave. PENMAN and CITY agree that PENMAN, in accordance with
Government Code Section 21221(h) and related Ca1PERS regulations and policy statements,
shall not be provided or accrue any personal time off, vacation, sick leave, administrative leave,
paid holidays or similar leave benefits.
4. Termination.
4.1 By CITY. This Agreement may be terminated by CITY for any reason thirty (30)
days after providing written notice to PENMAN of such termination. CITY ‘s only obligation in
the event of such termination will be payment to PENMAN of all compensation then due and
owing as set forth in Section 2.1 [Rate of Pay] up to and including the effective date of
termination. However, this Agreement may be terminated immediately if necessitated by
changes to CalPERS statutory or regulatory requirements, or if doing so will preclude a violation
of Government Code Sections 7522.56 or 21221(h) .
4.2 By PENMAN. This Agreement may be terminated by PENMAN for any reason
thirty (30) days after providing written notice to CITY of such termination. CITY shall have the
option, in its complete discretion, to make PENMAN’s termination effective at any time prior to
the end of such period, provided CITY pays PENMAN all compensation as set forth in Section
2.1 [Rate of Pay] then due and owing him through the last day actually worked.
4.3 No Notice for Expiration. Nothing in this Section 4 [Termination] shall be
construed to require either party to give advance written notice in order for the Agreement to
expire as set forth in Section 1.2 [Term].
4.4 Termination Obligations. PENMAN agrees that all property, including, without
limitation, all equipment, tangible Proprietary Information (as defined below), documents,
records, notes, contracts, and computer-generated materials furnished to or prepared by him
incident to his employment belongs to CITY and shall be returned promptly to CITY upon
termination of PENMAN’s employment. PENMAN’s obligations under this subsection shall
survive the termination of his employment and the expiration of this Agreement.
5. Proprietary Information.
“Proprietary Information” is all information and any idea pertaining in any manner to the
business of CITY (or any CITY affiliate), its employees, clients, consultants, or business
associates, which was produced by any employee of CITY in the course of his/her employment
or otherwise produced or acquired by or on behalf of CITY. Proprietary Information shall
include, without limitation, trade secrets, product ideas, inventions, processes, formulae, data,
know-how, software and other computer programs, copyrightable material, marketing plans,
45635.01000\30047816.1
strategies, sales, financial reports, forecasts, and customer lists. All Proprietary Information not
generally known outside of CITY’ s organization, and all Proprietary Information so known only
through improper means, shall be deemed “Confidential Information.” During his employment
by CITY, PENMAN shall use Proprietary Information, and shall disclose Confidential
Information, only for the benefit of CITY and as is, or may be, necessary to perform his job
responsibilities under this Agreement. Following termination, PENMAN shall not use any
Proprietary Information and shall not disclose any Confidential Information, except with the
express written consent of CITY. PENMAN’s obligations under this Section shall survive the
termination of his employment and the expiration of this Agreement.
6. Conflict Of Interest.
PENMAN represents and warrants to CITY that he presently has no interest, and
represents that he will not acquire any interest, direct or indirect, financial or otherwise, which
would conflict in any manner or interfere in any way with performance of his services under this
Agreement.
7. General Provisions.
7.1 Recitals. The recitals, inclusive of all facts and representations, are incorporated
into this Agreement as if set forth in the Operative Provisions.
7.2 Vehicle Operation. PENMAN shall operate any vehicle used in connection with
the performance of his duties as interim City Manager in a safe manner and otherwise in
observance of all established traffic safety laws and ordinances and shall maintain a valid
California automobile’s driver’s license during the period of employment.
7.3 Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be effective upon delivery by hand or three (3) business
days after deposit in the United States mail, postage prepaid, certified or registered, and
addressed to CITY at the address below, and or at the last known address maintained in
PENMAN’s personnel file. PENMAN agrees to notify CITY in writing of any change in his
address during his employment with CITY. Notice of change of address shall be effective only
when accomplished in accordance with this Section.
City’s Notice Address:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Mayor and City Council
interim City Manager’s Address:
Donald E. Penman
[ADDRESS]
45635.01000\30047816.1
7.4 Indemnification. Subject to, in accordance with, and to the extent provided by the
California Government Claims Act [Government Code Section 810 et seq.], CITY will
indemnify, defend, and hold PENMAN harmless from and against any action, demand, suit,
monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or
other damages, arising out of any act or omission occurring during PENMAN’s tenure as interim
City Manager.
7.5 Bonding. CITY shall bear the full cost of any fidelity or other bonds required of
the interim City Manager under any law or ordinance.
7.6 Integration. This Agreement is intended to be the final, complete, and exclusive
statement of the terms of PENMAN’s employment by CITY. This Agreement supersedes all
other prior and contemporaneous agreements and statements, whether written or oral, express or
implied, pertaining in any manner to the employment of PENMAN, and it may not be
contradicted by evidence of any prior or contemporaneous statements or agreements. To the
extent that the practices, policies, or procedures of CITY, now or in the future, apply to
PENMAN and are inconsistent with the terms of this Agreement, the provisions of this
Agreement shall control.
7.7 Amendments. This Agreement may not be amended except in a written document
signed by PENMAN, approved by the City Council and signed by CITY’ s Mayor.
7.8 Waiver. Failure to exercise any right under this Agreement shall not constitute a
waiver of such right.
7.9 Assignment. PENMAN shall not assign any rights or obligations under this
Agreement. CITY may, upon prior written notice to PENMAN, assign its rights and obligations
hereunder.
7.10 Severability. If a court or arbitrator holds any provision of this Agreement to be
invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and
effect.
7.11 Attorneys’ Fees. In any legal action, arbitration, or other proceeding brought to
enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys’ fees and costs.
7.12 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, with venue proper only in Los Angeles
County, State of California.
7.13 Interpretation. This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of 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. Captions are used for reference
purposes only and should be ignored in the interpretation of the Agreement. This Agreement
may be altered, amended or modified only by an instrument in writing, executed by the parties to
45635.01000\30047816.1
this Agreement and by no other means. Each party waives their future right to claim, contest or
assert that this Agreement was modified, cancelled superseded or changed by any oral
agreement, course of conduct, waiver or estoppel.
7.14 Acknowledgment. PENMAN acknowledges that he has had the 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.
7.15 Abuse of Office; Reimbursement to City. Pursuant to Government Code section
53243, et seq. which became effective on January 1, 2012, if PENMAN is convicted of a crime
involving an abuse of his office or position, all of the following shall apply: (1) if PENMAN is
provided with administrative leave pay pending an investigation, PENMAN shall be required to
fully reimburse such amounts paid; (2) if the City pays for the criminal legal defense of
PENMAN (which would be in its sole discretion, as it is generally not obligated to pay for a
criminal defense), PENMAN shall be required to fully reimburse such amounts paid; and (3) if
this Agreement is terminated, any cash settlement related to the termination that PENMAN may
receive from the City shall be fully reimbursed to the City. For this Section, abuse of office or
position means either: (1) an abuse of public authority, including waste, fraud, and violation of
the law under color of authority; or (2) a crime against public justice, including a crime described
in Title 7 commencing with section 92 of the Penal Code.
IN WITNESS WHEREOF, CITY has caused this Agreement to be signed and executed
on its behalf by its Mayor and duly attested to by its City Clerk, and PENMAN has signed and
executed this Agreement, as of the date first indicated above.
INTERIM CITY MANAGER CITY OF AZUSA
_______________________________ __________________________
Donald E. Penman Joseph Romero Rocha, Mayor
ATTEST: APPROVED AS TO FORM:
_______________________________ __________________________
Jeffrey Lawrence Cornejo, Jr., City Clerk Best Best & Krieger LLP
City Attorney