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HomeMy WebLinkAboutItem 3b: Employment Agreement with Donald E. Penman C) ;.,,.,,,„11., 1-1`, hi 0o y °` b STAFF REPORT •\�h _i V of ti Administrative Services Department DATE: October 4, 2011 TO: Mayor and City Council FROM: Hue C. Quach, Administrative Services Director .ICS' Michael A. Casalou, Human Resources Administrator ',nYI? - SUBJECT: Approve Employment Agreement between the City of Arcadia and Donald E. Penman Recommendation: Approve SUMMARY On July 26, 2011, City Manager Don Penman formally announced he will be retiring from the City of Arcadia. Mr. Penman's retirement will be effective November /1, 2011. Subsequent to his announcement, the City Council extended to Mr. Penman, and he accepted, an offer to continue to serve as City Manager during the recruitment for his successor. Said agreement has been prepared and is presented with this report for approval. DISCUSSION As noted above, Don Penman will retire from the City of Arcadia effective November 4, 2011. Under the CaIPERS Retirement System, a retired annuitant can work for a CaIPERS employer without reinstatement as a temporary employee with certain restrictions that include: • The annuitant has specialized skill needed to perform work of limited duration or employment is needed during an emergency to prevent stoppage of public business. • Temporary employment will not exceed 960 hours per fiscal year. • The rate of pay will not be less than the minimum nor exceed the maximum that is paid to other employees performing comparable duties. The City Council is aware of the aforementioned criteria and believes Mr. Penman's temporary appointment will adhere to these requirements. The proposed Employment Agreement between the City of Arcadia and Don Penman is attached in its entirety. For ease of reference, the most significant deal points are summarized below: Mayor and City Council October 4, 2011 Page 2 of 2 Temporary Employment -The effective date of the agreement is November 4, 2011 and the employment relationship will be "at will." Salary - Compensation shall be at the base weekly salary paid to Mr. Penman as of November 3, 2011, which is $4,212.31. Benefits - No benefits will be provided other than those required by statute (for example: Workers' Compensation), and the unrestricted use of a City automobile and a smart phone. FISCAL IMPACT Salary and benefit costs for the position of City Manager are already included in the fiscal year 2011-12 budget. The City will realize savings from not providing fringe benefits during the duration of Mr. Penman's temporary employment. RECOMMENDATION It is recommended that the City Council approve the attached Employment Agreement between the City of arcadia and Donald E. Penman and authorize the Mayor to execute the agreement. Attachment • TEMPORARY EMPLOYMENT AGREEMENT This Temporary Employment Agreement ("Agreement") between the City of Arcadia ("City") and Donald E. Penman ("Manager") is made this 4th day of October, 2011. RECITALS WHEREAS, Government Code Section 21221(h) provides that a public agency contracting with the California Public Managers Retirement System (CaIPERS) may appoint a retired employee under CaIPERS to a position deemed to be of limited duration and requiring specialized skills, subject to certain limitations and restrictions on the pay rate and the hours of employment for such appointee; WHEREAS, Manager has notified City that November 3, 2011 will be his last day of employment with City under Manager's existing employment with City, which employment will automatically expire as of the same date, and that Manager's CaIPERS retirement shall become effective on November 4, 2011; WHEREAS, on November 4, 2011, Manager will be deemed a retired employee under CaIPERS and no longer a regular employee of City; and WHEREAS, City has determined, in accordance with Government Code Section 21221(h), that Manager possess specialized skills that are needed by City for a limited duration. AGREEMENT NOW, THEREFORE, the Parties hereto agree as follows: 1. Temporary Employment. City agrees to hire Manager on a temporary basis commencing on November 4, 2011, and Manager agrees and does accept temporary employment upon the terms and conditions set forth herein. 2. Duties City hereby employs Manager, and Manager hereby accepts employment, as City Manager of the City. Manager shall perform the functions and duties 1 specified for the City Manager of the City in the Arcadia City Charter Section 601 and other ordinances, resolutions and policies of the City and to perform such other legally permissible and proper duties and functions as the City Council of the City (the "Council") may from time to time assign, consistent with the Arcadia City Charter and other applicable law. 3. Conflict Of Interest Prohibition It is understood and agreed that because of the duties of Manager within and on behalf of the City of Arcadia and its citizenry, Manager shall not, during the term of this Agreement, individually, as a partner, joint venturer, officer or shareholder, invest or participate in any business venture conducting business in the corporate limits of the City of Arcadia, except for stock ownership in any company whose capital stock is publicly held and regularly traded, without prior approval of the City Council. For and during the term of this Agreement, Manager further agrees, except for a personal residence or residential property acquired or • held for future use as his personal residence, not to invest in any other real estate or property improvements within the corporate limits of the City of Arcadia without the prior consent of the City Council. 4. Compensation; Benefits. Manager's compensation shall be at the base hourly rate paid to Manager on November 3, 2011, which is $105.3077, payable at the same time and in the same manner as other employees of City are paid. Manager shall not be provided any benefits except for those required by statute and the following: (a) Manager shall be provided an automobile by City for Manager's exclusive and unrestricted use. City shall be responsible for paying for liability, property damage and comprehensive liability insurance (subject to the condition, however, that the City Attorney first and continuously thereafter determines that is both lawful and feasible for the City to do so) and for the purchase, operation, maintenance, repair and regular replacement of said automobile. Manager shall be named as an "additional-insured" on any such comprehensive liability insurance policy, and such policy shall cover both professional and personal use of the automobile. (b) City shall provide Manager with a smart phone and related service of the type provided to other executive level managers of City. Use of said smart phone shall be subject to the same policies and procedures applicable to other executive level managers.. 2 5. Work Schedule. Manager shall work a schedule commensurate with the duties and responsibilities of the City Manager position as set forth in City Charter Section 601, subject to the limitations required under Government Code Section 21221(h) 6. Termination of Agreement. The Parties hereby expressly agree that the employment relationship created by this Agreement is "at will" and either City or Manager may terminate the relationship for any reason, with or without cause, upon seven (7) days prior written notice. In addition and notwithstanding any other provision of this Agreement or any Charter provision, ordinance, resolution or policy of City, Manager hereby acknowledges and agrees that Manager shall not be entitled to any hearing or due process rights in connection with any termination action undertaken against Manager by City, and that this Agreement sets forth the only terms and conditions applicable to the termination of Manager's employment. Notwithstanding the foregoing, Manager's employment under this Agreement shall not exceed the limitation required under Government Code Section 21221(h). 7. Modification. Any modification of this Agreement will be effective only if it is in writing and signed by both Parties. 8. Entire Agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between City and Manager. This Agreement contains all of the covenants and agreements between the Parties with respect to Manager's employment by City in any manner whatsoever. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding on either Party. 9. Law Governing Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be in Los Angeles County, California. 3 10. Notices. (a) Any notice to be given hereunder by either Party to the other shall be in writing and may be transmitted by personal delivery or mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed to the following respective addresses: City of Arcadia Attn: Mayor 240 W. Huntington Drive Arcadia, CA 91007 Donald E. Penman City Manager 240 W. Huntington Drive Arcadia, CA 91007 (b) Notices delivered personally shall be deemed communicated as of the date of actual receipt. Mailed notices shall be deemed communicated as of the date of mailing, plus two (2) days. 11. Assistance of Counsel. Each Party to this Agreement warrants to the other Party that it has either had the assistance of counsel in negotiation for, and preparation of, this Agreement or could have had such assistance and voluntarily declined to obtain it. [Signatures on following page] 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth hereinabove. CITY: MANAGER: Mayor of the City of Arcadia Donald E. Penman ATTEST: City Clerk City of Arcadia APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 5