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°` b STAFF REPORT
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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
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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
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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..
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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.
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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]
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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
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