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HomeMy WebLinkAbout25J - AGMT - INTERIM CITY MANAGERREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 2, 2017 TITLE: APPROVAL OF AGREEMENT FOR INTERIM CITY MANAGER {STRATEGIC PLAN NO. 4, RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 077 Zi111*W ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Direct and authorize the Mayor, City Attorney and the Clerk of the Council to execute the attached agreement appointing an Interim City Manager for the City of Santa Ana. DISCUSSION The City Charter Section 500 authorizes the City Council to appoint a City Manager. The City Manager is the chief administrative officer of the City who, under the direction of the City Council, is responsible for the proper administration of all affairs of the City. The position of City Manager is currently vacant. The City Council held a Special City Council Meeting on April 24, 2017 and Adjourned to May 1, 2017 to hold candidate interviews for the Interim City Manager position. In anticipation of a selection of a candidate at the Adjourned Special Meeting and to allow for the expedited process to contract for said services, staff has included the Employment Agreement of a former Interim City Manager for consideration. If the candidate selected is amenable to the same terms the contract may be executed as presented, otherwise a strike -out version will be provided to the City Council prior to the meeting for consideration and uploaded to the City's website, for transparency purposes. STRATEGIC PLAN ALIGNMENT Approval of this item supports Strategic Plan Goal #4 - City Financial Stability, Objective #3 (Achieve a structurally balanced budget with appropriate reserve levels), Strategy D (Establish a Committee of City staff to explore innovative revenue and cost recovery strategies (i.e. full cost recovery, receivership program, etc.). 25J -1 Page 2 Approval of Agreement for Interim City Manager May 2, 2017 FISCAL IMPACT Upon approval, funds will be available in the City Manager's Office — Salaries and Benefits Expense Accounts (account no. 01103010- 61xxx). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency Exhibit A: Employment Agreement 25J -2 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 Santa Ana, and Employee desires to accept employment desire of the Parties through this Agreement to establish working conditions for Employee. 3. TERMS. 3.1 Duties. interim City Manager for the City of as interim City Manager. It is the conditions of employment and to set 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 Supervision. 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. 55394.00000 \781 6924.1 25J-3 3.1.4 Other Employ. 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 2 55394.00000\7816924.1 25J-4 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: Agreement. Employee. Employee by City. (1) Upon mutual agreement in writing by both Parties to terminate this (2) Upon thirty (30) days notice of resignation given to City by (3) Upon fifteen (15) days notice of employment termination given to (4) Upon the death of Employee. 3.2.4 Notice for Resignation. 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 /CaIPERS Retiree. 3.3.1 SalaLy. 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 CaIPERS 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 Ca1PERS retired annuitants may be employed by a Ca1PERS 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. 3 55394.00000`7816924.1 25J-5 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 iPad 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: 4 55394.00000 \7816924.1 25J-6 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 Severabilitv. 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. 5 55394.00000 \7816924.1 25J-7 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 SANTA ANA WI Miguel Pulido Mayor ATTEST: Maria Huizar City Clerk APPROVED AS TO FORM: Sonia R. Carvalho Best Best & Krieger LLP City Attorney EMPLOYEE By: Kevin O'Rourke APPROVED AS TO FORM: Robert Aaronson 55394.00000 \7816924.1 25J-8