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HomeMy Public PortalAboutAgreement_2014-03-04_Donald Penman_Interim City ManagerEMPLOYMENT AGREEMENT For the Position Of INTERIM CITY MANAGER This Employment Agreement ("Agreement") is made and entered into this 4day of March, 2014, by and between the CITY OF TEMPLE CITY ("CITY"), a California charter city, and DONALD E. PENMAN ("PENMAN"), an individual, on the following terms and conditions: RECITALS A. CITY desires to employ the services of PENMAN as its Interim City Manager, temporarily, to carry out the duties and responsibilities of City Manager as provided for by the Temple City Municipal Code, in consideration of and subject to the terms, conditions, and benefits set forth in this Agreement. CITY further desires to employ the services of PENMAN to assist with and oversee the hiring of a professional executive recruitment firm to perform a statewide executive management recruitment to fill the position of City Manager. B. PENMAN desires to accept employment as Interim City Manager inconsideration of and subject to the terms, conditions, and benefits set forth in this Agreement. C. PENMAN represents Yhat he is a retired annuitant of CaIPERS within the meaning of Government Code § 21221(h) and acknowledges that his compensation is statutorily limited as provided in Government Code § 21221(h). PENMAN represents that, as of the effective date of this Agreement, he has already worked 640 hours for another CaIPERS state or contracting agency as a retired annuitant during the CITY's 2013-2014 fiscal year, and that he therefore acknowledges that he is restricted to working no more than 320 hours for CITY, a state agency or other CaIPERS contracting agencies (collectively "CaIPERS Agencies") during CITY's 2013-2014 fiscal year. Penman represents that he has not received unemployment compensation from any CaIPERS Agencies during the 12 -month period preceding the effective date of this Agreement. PENMAN further represents that his CaIPERS retirement date became effective prior to the 180 -day period preceding the effective date of this Agreement. D. CITY has determined that it is necessary to hire PENMAN, a retired annuitant, because the position of Interim City Manager requires special skills, and PENMAN, by virtue of his significant experience as an interim city manager in other cities, has those special skills. OPERATIVE PROVISIONS Inconsideration ofthe promises -and covenants contained herein, he parties -agree as follows; 1. Position and Duties. 1.1 Position. PENMAN accepts employment with CITY as its Interim City Manager and shall perform all functions, duties and services set forth in Section L4 [Duties] ofthis Agreement. PENMAN shall provide service at the direction and under the supervision of the City Council. It is the intent of the parties that PENMAN, as the Interim City Manager, shall keep the City Council fully apprised of all significant ongoing operations of CITY. Toward that end, PENMAN shall report directly to the City Council and will periodically, or as may be otherwise specifically requested by the City Council, provide status reports to the City Council on his activities and those of CITY. 1.2 Term, This Agreement shall become effective upon being approved by the City Council and executed both by PENMAN and CITY's Mayor which date shall be the date first referenced above. PENMAN shall commence the performance of his duties as the Interim City Manager on March 5, 2014 or at such later date as the parties hereto shall agree in writing ("Commencement [late"). This Agreement shall expire as of the first of the following to occur: (i) 5:00 p.m. on Friday, February 27, 2015; (ii) upon the employment commencement date of a permanent City Manager employed by CITY; (iii) upon PENMAN working his 960`x' hour for CITY in any fiscal year, including hours worked for other CalPERS Agencies during such fiscal year; or (iii) upon termination of the Agreement by either PENMAN or CITY as provided in Section 4 [Termination] of this Agreement. 1.3 At -Will. PENMAN acknowledgesthatheisanat-will, temporary employee of CITY who shall serve at the pleasure of the City Council at all times during the period of his service hereunder. The terms of CITY's personnel rules, policies, regulations, procedures, ordinances, and resolutions, including without limitation CITY Resolution 07-4515, and subsequent Resolutions, regarding City Administrative Personnel (collectively "Personnel Policies") , as they may be amended or supplemented from time to time, shall not apply to PENMAN, and nothing in this Agreement is intended to, or does, confer upon PENMAN any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Council to terminate his employment, except as is expressly provided in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of PENMAN, as provided in Section 1.2 [Term] or Section 4 [Termination]. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of PENMAN to resign at any time from this position with CITY, subject only to the provisions set forth in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. This at -will employment Agreement shall be expressly subject to the rights and obligations of CITY and PENMAN, as set forth in Section 1.2 [Term] or Section 4 [Termination] below. 1.4 Duties. PENMAN shall serve as the Interim City Manager and shall be for the Term of the Agreement be vested with the powers, duties and responsibilities of the City Manager as set forth in Section 702 of the Temple City Charter and Section 2200 et seq. of Chapter 2 of Title 2 of the Temple City Municipal Code, the terms of which are incorporated herein by reference. PENMAN shall provide service at the direction and under the supervision of the City Council It is the intent of the parties that the Interim City Manager shall keep the City Council fully apprized of all significant ongoing operations of CITY. Toward that end, PENMAN shall report directly to the City Council and will periodically, or as may be otherwise specifically requested by the City Council, provide status reports to the City Council on his activities and those of CITY. It is the intent of the City Council for the Interim City Manager to function as the chief executive officer of CITY's organization. Without additional compensation, PENMAN shall provide such other services as are customary and appropriate to the position of Interim City Manager, including serving as the 2 Executive Director of the Temple City Successor Agency, Temple City Housing Authority, and the Financing Authority, together with such additional services assigned from time to time by the City Council as may be consistent with California law and the Temple City Charter and Municipal Code. PENMAN shall devote his best efforts and full-time attention to the performance of these duties. Notwithstanding PENMAN's duties as Interim City Manager, nothing in this Agreement shall be construed to prohibit direct communications between the City Council and employees of CITY in a manner that is consistent with the City's personnel rules, administrative policies and City Council policies. 1.5 Hours of Work. PENMAN shall devote the time necessary to adequately perform his duties as Interim City Manager. The parties anticipate that PENMAN will work approximately 20 hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special City Council meetings, attendance at activities of Directed Organizations (as defined below), and attendance at such community events and CITY functions as the Council may direct. Toward that end, PENMAN shall be allowed reasonable flexibility in setting his own office hours, provided the schedule of such hours provides a significant presence at City Hall at least three (3) days per week, reasonable availability to the City Council, CITY staff, and members of the community during regular CITY business hours and for the performance of his duties and of CITY business. However in no event shall PENMAN be required to work in excess of 960 hours per fiscal year for CITY, including hours worked for other Ca1PERS Agencies during such fiscal years. The position of Interim City Manager shall be deemed an exempt position under California wage and hour law. 1.6 Directed Organizations. The City Council desires PENMAN to bereasonably active in statewide, regional and/or local organizations as directed by the City Council that are deemed necessary to maintain and contribute to the advancement of CITY's interests and standing ("Directed Organizations"). These Directed Organizations may include, without limitation, participation in the San Gabriel Valley Council of Governments, Southern California Association of Government, the California Contract Cities Association, and the League of California of Cities. CITY agrees to budget and, consistent with that budget, pay for the dues and subscriptions of the Interim City Manager necessary for his participation in the Directed Organizations. CITY agrees to reimburse, as provided in Section 1.8 [Reimbursement] of this Agreement, PENMAN's reasonable and necessary travel, business and subsistence expenses for the activities related to the Directed Organizations, 1.7 Other Activity. In accordance with Govern ment Code Section 1126, during the period of his employment, PENMAN shall not accept, without the express prior written consent of the City Council, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity (except as permitted under Section 1.6 [Directed Organizations]), whether or not pecuniary advantage, that is or may be competitive with CITY, that might cause a conflict-of-interest with CITY, or that otherwise might interfere with the business or operation of CITY or the satisfactory performance of PENMAN's duties as Interim City Manager. 1.8 Reimbursement. CITY shall reimburse PENMAN for reasonable and necessary travel, subsistence and other business expenses incurred by PENMAN in the performance of his duties. All reimbursements shall be subject to and in accordance with California law and CITY's adopted Employee Reimbursement Policy. 3 2. Compensation. 2.1 Rate of Pay. For all services performed by PENMAN as the Interim City Manager under this Agreement, CITY shall pay PENMAN compensation at the rate of Eighty -Six Dollars and 54/100`' cents ($86.54) per hour according to the payroll schedule in place for CITY employees paid bi-weekly subject to the limitations provided below. 2.1.1 Compliance with CaIPERS requirements. It is the intent of the parties to compensate PENMAN only to the extent permitted under Government Code § 21221(h) and corresponding CalPERS regulations and policy statements. The Rate of Pay set forth above is based on the salary limitations established by CalPERS and is calculated by taking less than the maximum monthly base salary paid to the prior City Manager as listed on a publicly available pay schedule for the position of City Manager. The prior City Manager was paid $206,506 annually divided by 12 months divided by 173.333 to equal an hourly rate of $99.28. The prior City Manager was also paid benefits, to which PENMAN shall not be entitled. PENMAN will be compensated at the lesser rate of $86.54 per hour. In no event shall compensation paid to PENMAN by CITY under this Agreement exceed $110,771 over the term of this Agreement. 2.1.2 Recordation and Reporting of Hours Worked. PENMAN will comply with all applicable CaIPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CaIPERS. Additionally, PENMAN shall keep CITY continually apprised of any hours worked by PENMAN for other CalPERS Agencies during the term of this Agreement. 2.2 Benefits. 2.2.1 No Benefits. Pursuant to Government Code §21221(h) and related Ca1PERS regulations and policy statements, PENMAN shall not receive from CITY any benefits CITY commonly provides to its employees, including without limitation health, dental, or vision insurance coverage, life insurance, gym programs, employee assistance programs, and similar benefits. 3. Vacation and Leave. 3.1 No Leave. PENMAN and CITY agree that PENMAN, in accordance with Government Code Section 21221(h) and related CaIPERS regulations and policy statements shall not be provided or accrue any personal time off, vacation, sick leave, administrative lease, paid holidays or similar leave benefits. 4.1 By CITY. This Agreement may be terminated by CITY for any reason thirty (30) days after notice in writing to PENMAN of such termination. CITY's only obligation in the event of such termination will be payment to PENMAN of all compensation then due and owing as set forth in Section 2.1 [Rate of Pay] up to and including the effective date of termination. However, this Agreement may be terminated immediately if necessitated by changes to CaIPERS statutory or regulatory requirements. 4 4.2 By PENMAN. This Agreement may be terminated by PENMAN for any reason thirty (30) days after notice in writing to CITY of such termination. CITY shall have the option, in its complete discretion, to make PENMAN's termination effective at any time prior to the end of such period, provided CITY pays PENMAN all compensation as set forth in Section 2.1 [Rate of Pay] then due and owing him through the last day actually worked. 4.3 No Notice for Expiration. Nothing in this Section 4 [Termination] shall be construed to require either parry to give advance written notice in order for the Agreement to expire as set forth in Section 1.2 [Term]. 4.4 Termination Obligations. PENMAN agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to CITY and shall be returned promptly to CITY upon termination of PENMAN's employment. PENMAN's obligations under this subsection shall survive the termination of his employment and the expiration of this Agreement. 4.5 Benefits Upon Termination. All benefits to which PENMAN is entitled under this Agreement shall cease upon PENMAN's termination in accordance with this Section 4, unless expressly continued either under this Agreement, under any specific written policy or benefit plan applicable to PENMAN, or unless otherwise required by law. 5. Proprietary Information. "Proprietary Information" is all information and any idea pertaining in any manner to the business of CITY (or any CITY affiliate), its employees, clients, consultants, or business associates, which was produced by any employee of CITY in the course of his/her employment or otherwise produced or acquired by or on behalf of CITY. Proprietary Information shall include, without limitation, trade secrets, product ideas, inventions, processes, formulae, data, know-how, software and other computer programs, copyrightable material, marketing plans, strategies, sales, financial reports, forecasts, and customer lists. All Proprietary Information not generally known outside of CITY's organization, and all Proprietary Information so known only through improper means, shall be deemed "Confidential Information." During his employment by CITY, PENMAN shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY and as is or maybe necessary to perform his job responsibilities under this Agreement. Following termination, PENMAN shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of CITY. PENMAN's obligations under this Section shall survive the termination of his employment and the expiration of this 6. Conflict Of Interest. PENMAN represents and warrants to CITY that he presently has no interest, and represents that he will not acquire any interest, director indirect, financial or otherwise, which would conflict in any manner or interfere in any way with performance of his services under this Agreement. General Provisions. 7.1 Recitals. The recitals, inclusive of all facts and representations, are incorporated into this Agreement as if set forth in the Operative Provisions, 7.2 Vehicle Operation. PENMAN shall operate any vehicle used in connection with the performance of his duties as Interim City Manager in a safe manner and otherwise in observance of all established traffic safety laws and ordinances and shall maintain a valid California automobile's driver's license during the period of employment. 7.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be effective upon delivery by hand or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to CITY at the address below, and or at the last known address maintained in PENMAN's personnel file. PENMAN agrees to notify CITY in writing of any change in his address during his employment with CITY. Notice of change of address shall be effective only when accomplished in accordance with this Section. City's Notice Address: City of Temple City 9701 Las Tunas Drive Temple City, CA 917803 Attn: Mayor and City Council Interim City Manager's Address: Donald E. Penman [Deliver to last updated address in personnel file] 7.4 Indemnification. Subject to, in accordance with, and to the extent provided by the California Tort Claims Act [Government Code Section 810 et seq.] CITY will indemnify, defend, and hold PENMAN harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any act or omission occurring during PENMAN's tenure as Interim City Manager. 7.5 7.6 Integration, This Agreement is intended to be the final, complete, Bonding. CITY shall bear the full cost of any fidelity or other bonds required of the Interim City Manager under any law or ordinance. and exclusive statement of the terms of PENMAN'S employment by CITY. This Agreement supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of PENMAN, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of CITY, now or in the future, apply to PENMAN and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control. 7.7 Amendments. This Agreement may not be amended except in a written document signed by PENMAN, approved by the City Council and signed by CITY's Mayor, 7.8 Waiver. Failure to exercise any right under this Agreement shall not constitute a waiver of such right. 7.9 Assignment. PENMAN shall not assign any rights or obligations under this Agreement. CITY may, upon prior written notice to PENMAN, assign its rights and obligations hereunder. 7.10 Severability. If a court or arbitrator holds any provision of this Agreement to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect. 7.11 Attorneys' Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. 7.12 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, with venue proper only in Los Angeles County, State of California. 7.13 Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, cancelled superseded or changed by any oral agreement, course of conduct, waiver or estoppel. 7.14 Acknowledgment. PENMAN acknowledges that he has had the opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained in this Agreement. IN WITNESS WHEREOF, CITY has caused this Agreement to be signed and executed on its behalf by its Mayor and duly attested to by its City Clerk, and PENMAN has signed and executed this Agreement, as of the date first indicated above. INTERIM CITY MANAGER ATTEST: fiUvVX�60/10 Peggy Y40, tit kferk CITY OF TEMPLE CITY APPROVED AS TO FORM: Eric S. ail, City Attorney