Loading...
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 �ATTE T: IS4 ie Citylt,lem r APPROVED AS TO FORM: i', 4 t-,� �d Stephen P. Deitsch City Attorney MANAGER Donald E. Penman � /boo -ao 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 RVPU13IWFWYDV37"7.1 1 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 RVPUBIWFLOYD1737667.1 2 0 0 ($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. RVPUB%WFLOYD1737667.1 3 (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. RVPUBIWFL0YD \737667.1 4 0 0 (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 RVPUBIWFWYA \737667.1 5 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. RVPU13IWFIAYD1737667.1 6 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: &4 AV/ ' Mayor of the Cify of Arcadia A TEST: 4 City Clerk City of Arcadia APPROVED AS TO FORM: g-J�q P. b�w�. Stephen P. Deitsch City Attorney RVPUBIWFLAYD737667. ( 7 MANAGER: Donald E. Penman