HomeMy WebLinkAboutO'ROURKE, KEVIN - 2013A-2013-036
CITY OF SANTA ANA
INTERIM CITY MANGER EMPLOYMENT AGREEMENT
1. PARTIES AND DATE.
This Agreement ("Agreement") is made and entered into this 11th day of February, 2013
by and between the City of Santa Ana, a municipal corporation ("City") and Kevin O'Rourke, an
individual ("Employee"), in order to provide in writing the terms and conditions of employment
for interim City Manager services. City and Employee are sometimes individually referred to
herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Employment of Interim City Manager.
City desires to employ the services of Employee as interim City Manager for the City of
Santa Ana, and Employee desires to accept employment as interim City Manager. It is the
desire of the Parties through this Agreement to establish conditions of employment and to set
working conditions for Employee.
3. TERMS.
3.1 Duties.
3.1.1 Designated Duties. City hereby agrees to employ Employee as interim
City Manager of City to perform the functions and duties in accordance with applicable state
law, the City's Charter and Municipal Code, as well as the approved City job description for the
position. Employee shall also perform other legally permissible and proper duties and functions
as the City Council shall from time to time assign.
3.1.2 Control and Sgpervision. Employee shall serve at the will and pleasure of
the City Council pursuant to the terms and limitations of this Agreement, and will be under the
day-to-day supervision and direction of the City Council.
3.1.3 City Council Meetings and Presence in Santa Ana. Employee shall attend
all City Council meetings, unless excused or directed otherwise. Employee shall be present and
working from Monday through Thursday of each week, except to the extent that City-observed
holidays occur, and provided that Employee may set his own schedule provided that Employee is
discharging the duties of interim City Manager. Employee's monthly compensation will not
change regardless of additional or fewer days worked in a particular month due to holidays.
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3.1.4 Other Employment. City acknowledges that Employee is employed by
PARS. However, Employee agrees that while this Agreement is in effect, Employee will take a
leave of absence from PARS and Employee will focus his professional time, ability, and
attention on City business during the term of this Agreement. To the extent consistent with
applicable law, Employee shall not engage in any other business duties or pursuits whatsoever
or, directly or indirectly, render any services of a business, commercial or professional nature to
any other person or organization, whether for compensation or otherwise, without the prior
consent of the City Council, except that:
(1) The expenditure of reasonable amounts of time not in conflict with
the City's needs and interests, for educational, charitable, community, and professional activities,
shall not be deemed a breach of this Agreement and shall not require prior consent. Such
activities may include, but are not limited to, involvement with the League of California Cities,
the International City/County Management Association, and other nonprofit associations, and the
completion of the occasional outside consulting project.
(2) This Agreement shall not be interpreted to prohibit Employee from
making passive personal investments or conducting private business affairs if those activities do
not materially interfere with the services required under this Agreement or create conflicts of
interest.
3.1.5 City Documents. All data, studies, reports and other documents prepared
by Employee while performing his duties during the term of this Agreement shall be furnished to
and become the property of the City, without restriction or limitation on their use. All ideas,
memoranda, specifications, plans, procedures, drawings, descriptions, computer program data,
input record data, written information, and other materials either created by or provided to
Employee in connection with the performance of this Agreement shall be held confidential by
Employee. Such materials shall not, without the prior written consent of the City Council, be
used by Employee for any purposes other than the performance of his duties. Nor shall such
materials be disclosed to any person or entity not connected with the performance of services
under this Agreement, except as required by law. The terms of this Section 3.1.5 shall survive
termination or expiration of this Agreement.
3.1.6 Rights and Obligations of Employee and City. City and Employee shall
have the rights and obligations of public entities and public employers, respectively, set forth in
Division 3.6 of Title 1 of the California Government Code, commencing with Section 810.
3.2 Term; Termination; Severance Pay.
3.2.1 Term. This Agreement shall become effective on February 11, 2013 and
shall continue until terminated either by the City Council or by Employee ("Initial Term").
3.2.2 Termination. The Parties understand and agree that the employment
relationship created by this Agreement is "at-will" and that the Employee shall serve at the will
and pleasure of the City Council. The Employee may be terminated at any time for cause, with
no advance notice. For purposes of this Agreement, a termination for cause shall be any
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termination for any cause set forth in California Government Code section 19572. To terminate
the Employee without cause, the City Council shall provide the Employee with a 15-day notice.
Nothing in any statute, ordinance, or rule shall prevent, limit or otherwise interfere with the right
of the City Council to terminate, without right of appeal or grievance, the employment of the
Employee at any time, as provided herein. Accordingly, Employee agrees that this Agreement
sets forth the only terms and conditions applicable to the termination of his employment, and that
Employee shall not be entitled to severance under any conditions.
3.2.3 Automatic Termination. This Agreement, and Employee's employment,
shall automatically terminate upon the happening of any of the following events:
(1) Upon mutual agreement in writing by both Parties to terminate this
Agreement.
(2) Upon thirty (30) days notice of resignation given to City by
Employee.
(3) Upon fifteen (15) days notice of employment termination given to
Employee by City.
(4) Upon the death of Employee.
3.2.4 Notice for Resi nation. In the event Employee voluntarily resigns his
position with City, then Employee shall give City thirty (30) days notice in advance, unless the
Parties otherwise agree.
3.3 Salary/Ca1PERS Retiree.
3.3.1 -Salary. City shall compensate Employee at a monthly base salary equal to
Twenty Two Thousand Eighty Three Dollars ($22,083), prorated for any partial months worked.
This base salary shall be payable monthly at the same time as other employees of the City are
paid.
3.3.2 PERS Retiree. Employee is a Ca1PERS retired annuitant. City has
engaged Employee in accordance with Ca1PERS rules and regulations which permit City to
appoint annuitants who have specialized skills needed to provide service for a limited duration.
Employee understands that CalPERS retired annuitants may be employed by a CalPERS public
agency employer, by temporary appointment to a position not to exceed 960 hours in any fiscal
year for all such employers; either (1) during an emergency to prevent stoppage of public
business or (2) because the retired employee has skills needed in performing the work of limited
duration.
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3.4 No Benefits/Equipment and Reimbursements.
3.4.1 Leave and Insurance Benefits. City shall provide Employee no benefits of
any kind, including but not limited to membership in the California Public Employees
Retirement System (PERS), annual leave, health insurance, dental or optical insurance, life
insurance, long-term disability coverage, or other insurance.
3.4.2 Telephone and Technology. City shall provide Employee with a cellular
telephone and an Apple Wad device capable of receiving and sending email and accessing the
Internet. City shall pay for service to these devices, which shall be returned to City upon
expiration or termination of Employee's employment. Alternatively, Employee may provide his
own devices at his own expense and City shall pay for service only.
3.4.3 Vehicle. City shall provide Employee with a suitable City-owned,
unmarked vehicle which may be used for City business, for commuting to and from work at City
and for employee's personal local travel within the Greater Orange County Region.
3.4.4. Reimbursement. Employee resides at a substantial distance from Santa
Ana, in excess of 400 miles. As such, the parties anticipate hotel/residential expenses during the
first 30 days while he is working for City. The parties also anticipate monthly travel expenses
for travel between Northern California and Orange County. Employee's rental, hotel or other
local housing expenses and his travel expenses shall be Eligible Expenses. Employee shall be
reimbursed by City for up to Four Thousand Dollars ($4000) per month during the first two
months that the Agreement is in effect, prorated for any partial months worked, for these Eligible
Expenses. After the first two months, Employee shall be reimbursed by City for up to Two
Thousand Seven Hundred Dollars ($2,700) per month., prorated for any partial months worked.
Employee shall produce receipts for all requested reimbursement of Eligible Expenses. In
addition, if the City arranges for travel and makes direct payment, the payment amount shall be
deducted from the eligible reimbursement amount.
3.5 Notices.
Notices pursuant to this Agreement shall be given by deposit in the custody of the United
States Postal Service, postage pre-paid, addressed as follows:
CITY: City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
ATTN: City Clerk
Employee: Kevin O'Rourke
3252 Southern Hills
Fairfield, CA 94534
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Alternatively, notices required pursuant to this Agreement may be personally served in
the same manner as is applicable to civil judicial practice. Notice shall be deemed given as of
the date of personal service or as of the date of deposit of such written notice in the course of
transmission in the United States Postal Service.
3.6 General Provisions.
3.6.1 Entire Agreement. The text herein shall constitute the entire agreement
between the Parties.
3.6.2 Severability. If any provision, or any portion thereof, contained in this
Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement,
or portion thereof, shall be deemed severable, shall not be affected and shall remain in full force
and effect.
3.6.3 Bonding. If applicable, the City shall bear the full cost of any fidelity or
other bonds required of Employee in the performance of his duties as City Manager.
3.6.4 Modification. Any modification of this Agreement will be effective only
if it is in writing and signed by both Parties.
3.6.5 Effect of Waiver. The failure of either Party to insist on strict compliance
with any of the terms, covenants, or conditions of this Agreement by the other Party shall not be
deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of
any right or power at any one time or times be deemed a waiver or relinquishment of that right or
power for all or any other times.
3.6.6 Assignment. Neither this Agreement, nor any right, privilege or
obligation of Employee hereunder shall be assigned or transferred by his without the prior
written consent of the City Council. Any attempt at assignment or transfer in violation of this
provision shall, at the option of the City Council, be null and void and may be considered a
material breach of this Agreement.
3.6.7 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 Orange
County, California.
3.6.8 No Presumption of Drafter. The Parties acknowledge and agree that the
terms and provisions of this Agreement have been negotiated and discussed between the Parties,
and this Agreement reflects their mutual agreement regarding the subject matter of this
Agreement. Because of the nature of such negotiations and discussions, it would be
inappropriate to deem any Party to be the drafter of this Agreement and, therefore, no
presumption for or against validity or as to any interpretation hereof, based upon the identity of
the drafter shall be applicable in interpreting or enforcing this Agreement.
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3.6.9 Attorneys' Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the
prevailing Party shall be entitled to recover such amount as the court may award as reasonable
attorneys' fees and costs.
3.6. 10 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 such assistance.
IN WITNESS WHEREOF, the City of Santa Ana has caused this Employment
Agreement to be signed and executed on its behalf by its City Council, and duly attested by its
City Clerk, and Employee has signed and executed this Employment Agreement, both in
duplicate, effective on the day and year first above written.
CITY OF
By:
ATTEST:
Maria Huizar
Clerk of the Council
APPROVED AS TO FORM:
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Sonia R. Carvalho
Best Best & Krieger LLP
City Attorney
EMPLOYEE
By: >
Kevin O'Rourke
APPROVED AS TO FORM:
Robert Aaronson
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