HomeMy WebLinkAboutC-2310FIRST AMENDMENT TO EMPLOYMENT AGREEMENT BETWEEN
THE CITY OF ARCADIA
AND THE CITY MANAGER
This AMENDMENT (hereinafter referred to as "First Amendment ") is made and entered
into between Donald E. Penman (hereinafter referred to as "Manager ") and the CITY OF
ARCADIA (hereinafter referred to as "City "), in order to amend, in writing, the terms and
conditions of employment for the City Manager of the City.
WHEREAS, effective January 1, 2008, City and Manager entered into an Employment
Agreement (hereinafter referred to as "Agreement "); and
WHEREAS, City and Manager wish to amend said Agreement to provide for a one time
reimbursement for Manager's purchase of a term life insurance policy.
NOW, THEREFORE, the parties hereto agree as follows:
1. Except as modified by this First Amendment, all provisions of the Agreement shall remain
in full force and effect for the term hereof. In case of any conflict, the terms of the
Agreement shall prevail over the provisions of the First Amendment.
2. Section 4. of the Agreement, entitled BENEFITS, shall be amended to add a revised Sub-
section (e), entitled Life Insurance Reimbursement, to read as follows:
"Manager shall be reimbursed for the premium expense, in an amount not to
exceed Forty One Hundred Dollars ($4,100.00), on a one time basis, for his
documented purchase of a personal term life insurance policy."
3. Section 4. (e) of the Agreement, currently entitled Supplemental Benefits, shall be labeled
Section 4. (f).
IN WITNESS WHEREOF, the parties have executed this Agreement on the k. . day of
October, 2010.
F ARCAD
Peter Amundson, Mayor
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Citylt,lem r
APPROVED AS TO FORM:
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Stephen P. Deitsch
City Attorney
MANAGER
Donald E. Penman
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02310
EMPLOYMENT AGREEMENT
This Agreement between the City of Arcadia ( "City ") and Donald E.
Penman ( "Manager ") is made this 1 st day of January, 2008.
RECITALS
A. City desires to employ Donald E. Penman as the City Manager of the
City of Arcadia as provided by the Arcadia City Charter Section 600 et seq. and
the terms and conditions set out herein.
B. Manager desires to serve as City Manager of the City of Arcadia on
the terms and conditions set out herein.
AGREEMENT
NOW, THEREFORE, the parties agree as follows on the terms and
conditions of Manager's employment.
1. DUTIES
City hereby employs Manager, and Manager hereby accepts
employment, as City Manager of the City. Manager shall perform the functions
and duties 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. Pursuant to Arcadia City
Charter Section 600, Manager shall at all times serve at the will and pleasure of the
Council (" `at will' employment status ").
2. SEVERANCE AND SEVERANCE PAY AND BENEIFITS
(a) In the event that Manager is involuntarily terminated by the
Council or a "negotiated settlement" for voluntary termination is approved by the
Council, City agrees to pay Manager within fifteen (15) days of the later to occur
of (i) the date of termination of employment or (ii) the date of final determination
by the Council of the matters subject to a hearing as set forth in this paragraph, a
lump sum cash payment ( "Severance Pay ") equal to twelve (12) months of the base
salary Manager is receiving on the date of the Council's action to terminate
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Manager, less legally required or authorized deductions. City shall also continue
the health benefits being provided to Manager at the time of termination for the
period of Severance Pay or until Manager finds other employment, whichever
occurs first ( "Severance Benefits "). However, in the event Manager is terminated
due to the reasonable determination of the Council, based upon the weight of the
evidence produced at a hearing conducted by the Council, that Manager has
committed either (i) any illegal act involving personal gain to Manager, (ii) gross
negligence or (iii) malfeasance, then, and in that event, City shall have no
obligation to pay the Severance Pay and Severance Benefits. Any hearing
conducted by the Council for the purposes set forth in this paragraph shall be
commenced within thirty days following the date of termination of Manager's
employment with the City, and shall be concluded as soon thereafter as reasonably
possible. Manager agrees that any determination by the Council or City not to pay
to Manager Severance Pay and Severance Benefits, or concerning the amount of
Severance Pay and Severance Benefits, shall be final and shall not be subject to
judicial review. Nothing set forth herein shall be deemed to confer upon Manager
the right to have a hearing by Council concerning any proposed termination of
Manager; provided, however, that Manager shall be entitled to a hearing solely
concerning any proposal by the Council not to pay Manager the Severance Pay and
Severance Benefits.
(b) In the event Manager terminates his employment as Manager,
then Manager shall give City at least six (6) weeks notice of termination in writing
in advance of the date of termination, unless mutually agreed upon otherwise. If
Manager resigns or retires voluntarily, then City shall have no obligation to pay
Severance Pay and Severance Benefits to Manager.
(c) Manager agrees that in the event Manager's employment is
terminated, with or without cause, under no circumstances will Manager be entitled
to contest the existence or nature of Manager's "at will" employment status, nor
will Manager be entitled to seek or receive the remedy of reinstatement to
employment with the City in any administrative or legal forum. Manager agrees
that the sole issue for resolution upon termination of Manager's employment will
be whether or not City is obligated to pay to Manager Severance Pay and
Severance Benefits and/or the amount of Severance Pay and Severance Benefits
due Manager.
3. SALARY
Effective January 1, 2008, City agrees to pay Manager an annual base salary,
exclusive of benefits, in the sum of One Hundred Ninety-Two Thousand Dollars
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($192,000.00) per year, or Sixteen Thousand Dollars ($16,000.00) per month,
gross, payable in installments at the same time and by the same methods as other
City employees are regularly paid. Effective July 1, 2008, Manager shall receive
an increase in base salary equal to Four Thousand ($4,000.00). Effective
January 1, 2009, Manager shall receive an increase in base salary equal to four
percent (4 %). Effective January 1, 2010, Manager shall receive an increase to base
salary equal to five percent (5 %). Said salary increases shall be apart from any
salary increases provided on the basis of merit as approved by the Council in its
sole discretion, during the term of this Agreement. Nothing set forth herein shall
prohibit the Council from reducing the salary of Manager due to budgetary or
similar constraints, on condition that any such reduction shall not exceed the
average reduction applicable to all management employees of the City at the time
of reduction in Manager's salary. Furthermore, Manager, in his sole discretion,
may elect not to receive any salary increase provided hereunder; provided,
however, if Manager elects not to receive a salary increase provided hereunder,
said salary increase shall be subsequently implemented, on a prospective basis
only, upon written request of Manager.
4. BENEFITS
(a) Vacation Leave. Manager shall accrue vacation at the rate of
6.154 hours per two week period (or as otherwise adjusted generally for other
management employees).
(b) Sick Leave. Manager shall accrue sick leave at the rate for
management employees as that may be adjusted from time to time. Accrued and
unused sick leave shall not be subject to buy -back annually or upon termination.
(c) Vehicle Allowance. 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.
(d) IRC $457 Plan. Effective January 1, 2008, City shall
contribute Four Thousand Dollars ($4,000.00) per year, in equal monthly
installments, to the IRC §457 plan on Manager's behalf.
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(e) Supplemental Benefits. Except as provided otherwise herein,
Manager shall receive any and all other supplemental benefits including, but not
limited to, health, dental, life insurance, disability insurance, holidays, retirement
benefits (PERS), physical examination, tuition reimbursement and long term
disability, as are generally available to management employees of the City as
provided by applicable City Resolutions and Personnel Rules.
Except as otherwise provided herein, all actions undertaken by City
relating to fringe benefits for management employees shall be considered actions
affecting the same benefits applicable to Manager. As used herein, fringe benefits
include, but are not limited to, vacation, sick leave, administrative leave, holiday
pay, retirement (PERS) benefits and payments, health insurance, dental insurance,
life insurance and long term disability insurance.
City shall not at any time during the term of this Agreement reduce
the base salary, compensation or other employment benefits of Manager, except as
permitted by this Agreement.
5. PROFESSIONAL DEVELOPMENT, OUTSIDE
PROFESSIONAL ACTIVITIES AND GENERAL EXPENSES
(a) Professional Development.
(i) Subject to the Council's discretion to adopt and amend
the budget, City agrees to pay for professional dues and subscriptions on behalf of
Manager which are reasonably necessary, as determined by the Council, for the
Manager's continuation and full participation in national, regional, state or local
associations and organizations necessary and desirable for Manager's continued
professional participation, growth and advancement, or for the good of the City.
Furthermore, City shall pay for any additional professional dues and subscriptions
as may be approved by the Council from time to time.
(ii) Subject to the Council's discretion to adopt and amend
the budget, City agrees to pay the travel and subsistence expenses of Manager for
official travel, meetings and events reasonably necessary to continue the
professional development of Manager and reasonably necessary to fulfill official
and other functions for the City, all as determined to be reasonable and necessary
by the Council. Such meetings and events shall include, but not be limited to, the
annual International City Management Association meeting, meetings of the
League of California Cities and other national, regional, state and local conferences
of governmental groups and committees in which Manager serves as a member.
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(b) Outside Professional Activities. Manager agrees to remain in
the exclusive employ of the City of Arcadia while employed by the City of
Arcadia. The term "employed" however, shall not be construed to include
occasional teaching, writing, speaking or consulting performed on his time off,
even if outside compensation is provided for such services. Said activities are
expressly allowed, provided that in no case is any activity allowed which would
present a conflict of interest with, or detriment to, the City of Arcadia. In the event
overnight travel is required for such non - employer - related business, the City
Council shall be notified in advance. De minimis use of City equipment for such
purposes is hereby authorized.
(c) General Expenses. City recognizes that certain expenses of a
non - personal and generally job - affiliated nature are incurred by the Manager,
including participation in civic and other local organizations, and hereby agrees to
reimburse or pay said general expenses.
Subject to the Council's discretion to adopt and amend the budget, the
City Treasurer (or other designated employee) is hereby authorized to disburse
funds as needed to fulfill all provisions of this Agreement upon receipt of duly
executed expense or petty cash vouchers, receipts, statements or personal
affidavits.
Subject to the Council's discretion to adopt and amend the budget,
City will provide all equipment necessary for the completion of Manager's duties.
This equipment shall include, but not be limited to, cellular telephone, pager,
computers and other electronic devices deemed appropriate by Manager. City
acknowledges and approves that certain personal use of this equipment may take
place. Said equipment provided hereunder shall remain the property of the City
and shall be returned to the City, along with all other City property in the
possession of Manager, upon termination of employment.
City shall bear full cost of any fidelity-or-other-bonds required of
Manager under any law or ordinance.
6. PERFORMANCE EVALUATION
(a) The Council and Manager may annually define such goals and
objectives for the City which they determine necessary for the proper operation of
the City in the attainment of the Council's policy objectives, and the Council and
Manager may further establish a priority among those various goals and objectives
to be reduced to writing. The process of considering the establishment and priority
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of goals and objectives of the City shall be conducted and completed generally '
about January of each year.
(b) The Council, following informal and nonbinding consultation
with Manager, shall periodically establish goals and objectives regarding the
performance of Manager. The Council shall review and evaluate the performance
of Manager at least once annually. Notwithstanding any term or provision of this
Agreement to the contrary, Manager shall serve at the will and pleasure of the
Council, and the Council shall be entitled to terminate the employment of Manager
without cause.
(c) In recognition of the accomplishment of goals and objectives
and excellent performance, a merit increase in salary and/or benefits of Manager
may be granted to Manager by the Council. Nothing herein shall be deemed to
change the "at will' employment status of Manager.
7. TERMS OF EMPLOYMENT
The Council, following informal and nonbinding consultation with
Manager, may by motion, resolution or written amendment to this Agreement
approved as an official Council meeting agenda item, fix any other terms and
conditions of employment as it may determine, from time to time, relating to the
performance of Manager, provided such terms and conditions are not prohibited by
the provisions of this Agreement, the Arcadia City Charter or any other rules or
regulations of the City.
8. 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.
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9. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
concerning the subject matter set forth herein and no promise, representation,
warranty or covenant not included in this Agreement has been or is relied upon by
any party hereto concerning the offer and acceptance of employment described
herein.
10. NO CONTINUING WAIVER
No waiver of any term or condition of this Agreement by either party
shall be deemed a continuing waiver of such term or condition.
11. EFFECTIVE DATE AND TERM
The effective date of this Agreement shall be January 1, 2008.
Subject to City's right to terminate Manager's employment at any time, the term of
this Agreement is three (3) years from the effective date, and shall automatically
renew itself for successive twelve (12) month periods unless City notifies Manager
of its intent to terminate this Agreement at least twelve (12) months prior to the
end of its three (3) year term or any successive twelve (12) month term.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth hereinabove.
CITY:
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Mayor of the Cify of Arcadia
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City Clerk
City of Arcadia
APPROVED AS TO FORM:
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Stephen P. Deitsch
City Attorney
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MANAGER:
Donald E. Penman