Loading...
HomeMy WebLinkAboutContract 1579 — iC CITY MANAGER EMPLOYMENT AGREEMENT Between City of Cathedral City and Charles P. McClendon This Employment Agreement ("Agreement") is entered into as of January 22, 2014, by and between the City of Cathedral City, California, a municipal corporation (the "City"), and Charles P. McClendon, an individual ("Employee"), with respect to Employee's employment as City Manager for the City. Employee and City are sometimes referred to hereinafter individually as a"Party" and collectively as the "Parties". RECITALS WHEREAS, the City operates under the City Manager form of government pursuant to Government Code section 34851 et seq.; and, WHEREAS, the City Manager holds office at the pleasure of the City Council pursuant to Government Code section 36506; and WHEREAS, the City requires the services of a City Manager; and WHEREAS,the City desires to appoint Employee as the City Manager of the City; and WHEREAS, Employee has the necessary education, experience, skills and expertise to serve as the City Manager for the City; WHEREAS, the Parties hereto acknowledge that under both California law and the Municipal Code of Cathedral City, the City Manager is the Chief Executive Officer of the City and is solely responsible for the operations and personnel of the City; and WHEREAS, it is agreed that City Council members will deal with administrative services of the City through the City Manager; and WHEREAS, it is agreed the City Manager shall take his orders and instructions from the City Council only when sitting in a duly convened meeting of the City Council and no individual Councilmember shall give any orders or instructions to the City Manager. NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows regarding the terms and conditions of employment between the City and Employee: TERMS AND CONDITIONS 1. Term of Employment. The term of this Agreement ("Term") shall be one (1) year, commencing on March 3, 2014. Unless otherwise terminated pursuant to the provisions of this Agreement, the Term shall automatically renew for a new Term identical in duration to the initial Term, and such renewal shall continue without further action of the Parties or until termination occurs. An election by the City Council not to renew this Agreement shall entitle Employee to exercise the severance provisions under this Agreement. 2. Obligations of the City. The City shall provide Employee with the compensation and benefits specified in this Agreement. 3. Duties and Obligations of Employee. Employee shall perform all duties of the City Manager as described in the Cathedral City Municipal Code Chapter 2.08 and any other related duties as may be prescribed by the City Council, including but not limited to serving as the Executive Director of the Cathedral City Downtown Foundation, Cathedral City Public Finance Authority, and the Successor Agency to the Redevelopment Agency of Cathedral City. a. Employee shall act in the best interests of the City at all times and shall perform all of his duties in a competent and professional manner. b. Employee acknowledges that the position of City Manager is a full-time position and agrees to devote all necessary time and attention to City business during the term of this Agreement. Employee shall not engage in any other employment, whether for compensation or otherwise, without the prior written consent of the City Council. 4. Employee Compensation. The City agrees to provide Employee the following salary and benefits as well as the provisions of the City's Executive, Administrative, Professional and Confidential Employee Policy ("Executive Policy"). Should there be any conflict between the provision of this Agreement and the Executive Policy, the provisions of this Agreement shall govern. a. Salary. Employee shall be paid an annual base salary of$192,000.00. Payments shall be made in accordance with the City's normal payroll practices and procedures. Employee's salary may be adjusted at the sole discretion of the City Council. Any increase or decrease is not effective until the Parties draft and sign an amendment to this Agreement that states the new annual base salary and the effective date of that new salary which is adopted by the City Council at a duly noticed public meeting. If the Employee possesses a Master's Degree he is entitled to an educational stipend equal to five-percent (5%) of base salary pursuant to the Executive Policy, which is subject to change at the discretion of the City Council. b. Insurance/Ca1PERS. Medical, Dental, Vision, Short Term Disability, Long Term Disability, Life Insurance and participation in the Ca1PERS retirement system shall be provided to Employee on the same terms and conditions as described in Article 11 of the of Executive Policy, which is subject to change in the discretion of the City Council. c. Deferred Compensation. Employee shall be eligible to participate in a joint contribution deferred compensation (457) plan selected by Employee from providers offered by the City. The City will make a prorated payment per pay period equally to the annual contribution to the plan in the same year equal to $6,200.00. Employee will make a matching contribution of a minimum of$1,200 annually. d. Vacation Leave. Employee shall be provided with an initial advance of 120 hours of vacation leave upon commencement of employment. Thereafter, Employee shall accrue a total of 20 days annual vacation at 200 hours equivalent to 7.69231 hours per pay period during each year of this Agreement for a total of 200 hours per calendar year. Employee shall be 2 eligible to cash out the accrued hours after nine months employment and will accrue additional hours once the accrual of the original 120 hours employment is reached. Unused vacation time will be treated and future accrual rates will be pursuant to Article 6.6 of the Executive Policy. e. Sick Leave. Employee shall be provided with an advanced accrual of 120 hours of hours of sick leave upon commencement of employment pursuant to this Agreement. Thereafter, Employee shall accrue additional sick leave of 3.69 hours per pay period up to a total of 96 hours per year after the time that the original 120 hours would have been accrued. Employee shall be able to carry over and cash out his accrued but unused sick leave time pursuant to Article 6.12 of the Executive Policy. f. Holidays. Employee shall be entitled to receive the same paid holidays as other City employees. Currently there are 9 fixed and 3 floating paid holidays, which holidays are subject to change by the City Council, but only in the same manner applicable to all other City employees. Employee will not be required to work on paid holidays unless required by the City Council or otherwise necessitated by the demands of City business or Emergency. g. Car Allowance. Employee shall be paid a car allowance of $600.00 per month and will be entitled to reimbursement for permitted travel expenses in accordance with the City's Travel and Expenditure Reimbursement Policy. Employee is required to provide proof of vehicle insurance prior to being paid the car allowance and shall maintain appropriate vehicle insurance during the entire term of the Agreement in order to be eligible to continue receiving the car allowance. Employee may also utilize a City pool vehicle for the conducting of City business, if one is available. h. Technology Stipend. Employee will be provided with a $150.00 monthly Technology Stipend in lieu of being provided with a City-paid cell phone and iPad. i. Taxes. Employee shall be responsible for any and all federal, state, local or other taxes resulting from any compensation or benefits provided to him by the City. The City shall withhold from any compensation or benefits provided under this Agreement all federal, state, local or other taxes as may be required pursuant to law or governmental regulation or ruling. j. Relocation Expenses. Employee shall receive up to a $10,000.00 reimbursement for moving expenses based on receipts of the actual expenses. Employee shall also receive reimbursement of actual and reasonable expenses for travel, up to 5 nights lodging in Cathedral City and meals for a trip from current residence to find a residence in Coachella Valley in which to relocate. 5. Reimbursement of Expenses. Employee shall be entitled to reimbursement for transportation, business and travel expenses incurred in the performance of his duties as City Manager, subject to the City's discretion and approval and consistent with the City's Travel and Expenditure Reimbursement Policy. Employee shall submit to the City, on a monthly basis, an itemized account of all such expenditures, setting forth the date, the purpose for which each expenditure was incurred, and the amounts thereof, together with such receipts showing the payments. 3 6. Performance Evaluation. The City Council, in conjunction with Employee, may develop annual goals, objectives, and performance standards for Employee for the benefit of the City and in furtherance of the City's policy objectives. The City Council shall review and evaluate Employee's performance on at least an annual basis or other more frequent basis at Council's sole discretion. 7. Bonding. City shall bear the full cost of any fidelity or other bonds required of Employee by law. 8. Indemnification. City shall defend and indemnify Employee against any claim(s) on the same terms and conditions, and in the same manner prescribed by the Government Claims Act, Government Code section 810 et seq. The City shall provide at its expense separate legal counsel to Employee if the City's legal counsel has a legal conflict of interest between the representation of the City's interest and the Employee's interest. This provision, including legal defense, shall extend indefinitely beyond Employee's employment with the City on any litigation matters that arose during said employment or as a result of said employment. If the Employee is required to testify or be a witness in any legal proceeding on behalf of the City or by subpoena by any plaintiff against City, the City shall reimburse Employee for all reasonable expenses for travel to participate in the legal matter. 9. Professional Associations, Memberships and Subscriptions. The Parties agree that Employee should actively participate in such state, regional and local professional organizations and subscribe to such professional publications as may be reasonably necessary in carrying out his duties as City Manager and in order to maintain and enhance his professional skills. This provision includes the obligation of the City to specifically fund membership and attendance for the annual conferences for ICMA (International City/County Manager Association), League of California Cities, and League of California Cities City Manager Department. The City may budget and pay for such other dues, conferences, seminars and educational courses on behalf of the Employee, as may be deemed appropriate by the City Council. 10. Termination of Employment. The City employs Employee to serve as its City Manager, at the pleasure of the City Council, upon the terms and conditions set forth in this Agreement. a. Resignation. Employee may resign from employment with the City by providing written notice to the governing body of the City at least 45 calendar days prior to his final day of employment. If Employee provides fewer than 45 calendar days notice of his resignation, then he shall receive a reduced disbursement of sick pay accrued under this Agreement, or any other applicable City policies, equivalent to the number of work days below the 45 calendar day notice, and will be only entitled to receive compensation that is required by law to be paid to an employee upon termination of employment. The Parties may mutually agree in writing to allow Employee to resign with less than 45 calendar days notice. b. Involuntary Termination. Employee is an "at-will" employee who serves at the pleasure of the City Council and is subject to dismissal without any right of notice or hearing except that the City shall notify Employee in writing of his termination. Moreover, pursuant to Cathedral City Municipal Code section 2.08.170, the terms of this Agreement shall supersede 4 any provisions for termination of the City Manager contained in Chapter 2.08 of the Cathedral City Municipal Code. c. City Council's Right to Terminate. The Term of this Agreement as stated in Section 1 above, shall not impede or diminish the right of the City Council to terminate Employee at any time during said Term (or successor Term). The sole purpose of stating an Agreement Term is to define the compensation of the City Manager during the period of time during which the Council has exercised its sole discretion in employing Employee as City Manager. i. Termination without Cause. Following a minimum of 30 days' up to a maximum of 60 days' notice to terminate by the City, without cause, Employee severance will provide that Employee be carried on the City's payroll, and Employee shall be entitled to receive his base salary and hospital, medical, dental and other insurance coverage according to provisions existing at the time of notice of termination for an additional six (6) months or until Employee commences employment with another employer, whichever occurs first. The City Council may place Employee on administrative leave during the 30 to 60 day notice to terminate without cause period. Following the date written notice of termination is received, Employee will not accrue any vacation, sick, floating time, or other leave and shall not be paid any other compensation under this Agreement, including but not limited to, the aforementioned car allowance and matching contribution to the Employee's 457 plan. Employee will be reimbursed for any bona fide City business expenses incurred prior to receipt of the written notice of termination pursuant to the terms of this Agreement, but shall not incur nor be entitled to reimbursement for any expenses incurred following receipt of written notice of termination. In addition, if the City receives any inquiries by prospective employers during this period, then the City will affirm Employee's continued employment with the City. Nothing in this Agreement shall limit the City Council's authority to appoint a new City Manager on either an acting or permanent basis following written notice of termination to Employee. ii. Prohibition on Termination without Cause within Ninety days after City Council Election. Notwithstanding any other terms of this Agreement, the City Manager shall not be given notice of termination without cause less than ninety (90) days following a general municipal election in which a new member of the City Council is elected. The intent of this provision is to allow any newly elected member of the City Council or a reorganized City Council to observe the actions and ability of the City Manager in the performance of his duties. After ninety (90) days, no further restriction shall exist upon the City Council's ability to terminate Employee without cause. iii. Termination with Cause. If Employee is terminated for any of the following reasons, then the City Council shall provide the Employee with written notice of termination that specifies the reason(s) for the termination and the City shall not be obligated to pay Employee any severance pay under this Agreement or any City policies, and Employee will only be entitled to that compensation that is required by law to be paid to an employee upon termination of employment: 1. Continued violation of adopted City Council policies and procedures after being warned and advised at least once at a public meeting of the City Council to cease and desist from said violation; 5 2. Proven theft of City property; 3. Willful insubordination of executing any lawful directive of the City Council after being warned and advised at least once at a public meeting of the City Council to cease and desist from said willful insubordination; 4. Conviction of a felony, malfeasance in office or of a misdemeanor relating to Employee's fitness to perform assigned duties; 5. Unauthorized or excessive absences from the City after the City Council has warned Employee in writing of such excessive absences. Excessive absences includes absence due to incarceration of longer than the Employee's available accrued vacation paid time off. Customary use of vacation and sick leave when ill or injured is not considered excessive absence; 6. Engaging in City business while under the undue influence of alcohol or illicit drugs after being warned in writing by the City Council of said occurrence and directed to cease and desist from said activity. 7. "Willful Misconduct" as defined in Section 2.08.160 of the Cathedral City Municipal Code. 8. Violation of the ICMA Code of Ethics resulting in a public censure by ICMA. ICMA shall be the sole determining body of any violation of the ICMA Code of Ethics. d. Abuse of Office. Any and all severance, paid leave, defense payments or other benefits which may be provided to Employee under this Agreement upon termination or in the event of an investigation shall be subject to and interpreted to comply with the limitations set forth in Government Code sections 53243 through 53244 and 53260, including without limitation, the obligation of Employee to reimburse City for any severance paid should Employee be convicted of a crime involving an abuse of office or position as defined in Government Code section 53243.4. 11. Suspension/Administrative Leave. Except as otherwise provided by this Agreement, Employee may be suspended with full pay and benefits at any time and for any reason during the Term of this Agreement at the direction of a majority vote of the City Council. 12. Confidential Information. Employee acknowledges and stipulates that in the performance of his duties, the City discloses and entrusts him with certain confidential or proprietary information. Employee agrees not to directly or indirectly disclose or use at any time any such information, whether it be in the form of records, lists, data, personnel information, drawings, reports, or otherwise, of a business or technical nature, which was acquired or viewed by Employee during Employee's relationship with the City unless such disclosure is authorized by the City in writing, required by law, or required in the performance of the duties of the City Manager. This provision shall survive the termination or expiration of this Agreement. 13. Notice. Any notices required hereunder shall be in writing and shall be given by personal delivery or overnight courier service to the Party to whom it is to be given at the address set forth below, or at such other address as each Party hereto may direct by notice given in accordance with the terms and conditions of this section. All notices shall be deemed effective upon personal delivery or upon three (3) business days following deposit with any overnight courier service in accordance with this section: 6 For the City of Cathedral City: City Clerk The City of Cathedral City 68700 Avenida Lalo Guerrero Cathedral City, CA 92234 Any notice required to be given to Employee under this Agreement shall be addressed to him at his last known address as reflected in the City's personnel records. Any Party may change its address for the purpose of this section by giving written notice of such change to the other Party in the manner herein provided. 14. General Provisions. a. Governing Law and Severability. This Agreement shall be governed by the laws of the State of California. If any clause, sentence, section or other provision of this Agreement is, for whatever reason, deemed void, unlawful or otherwise unenforceable, then such shall be severed and the balance of this Agreement construed as if the severed language was not a part hereof. b. Modification, Amendment, Waiver. No modification or amendment of any provision of this Agreement shall be effective unless approved in writing and signed by both Parties. The failure of a Party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of either Party thereafter to enforce each and every provision hereof in accordance with its terms. c. Assignment. Neither the Agreement nor any of the rights or obligations created herein shall be assignable by Employee without the written approval of the City Council. d. Counterparts. This Agreement may be executed in any one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The transmission of an executed signature page by any Party may also be accomplished via facsimile or via electronic transmission, and such copies of such documents may be treated as if they were originals. e. Section Headings. The section headings used herein are not a substantive part of this Agreement and are included solely for convenience and have no bearing upon and do not in any way limit the application of the terms and conditions of this Agreement. f. Incorporation. The Recitals are true and correct and are incorporated herein by this reference. g. Venue. All judicial proceedings involving disputes over the terms of this Agreement shall be initiated and conducted in the applicable court in Riverside County, California. 7 h. Entire Agreement. This Agreement represents the entire and integrated contract between the City and Employee and supersedes all prior understandings, negotiations, representations, or agreements. i. Effect of Waiver. The failure of either Party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other Party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times. j. Voluntary Agreement. Employee represents and warrants that he has read carefully and fully understands all the provisions of this Agreement, that he is free to enter into this Agreement and to render the services described in it, that he entering into and performance of this Agreement will not breach or violate or conflict with any other agreement(written or oral) to which he is a party, and that he has had an opportunity to consult with his legal counsel prior to entering into this Agreement and has either done so or voluntarily chosen not to do so. Employee is voluntarily entering into this Agreement. The City represents and warrants that it has the right and power to enter into this Agreement. IN WITNESS WHEREOF, the Parties have entered into this Employment Agreement for the City Manager as of the date first written above. CITY OF CATHEDRAL CITY ilk II - leen J. De' 'sa, Mayor EMPLOYEE B • / 4 4 ,11, a-L.-- Charles P. McClendon, Employee ATTEST: Deputy C.4 Clerk X 8