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HomeMy WebLinkAbout09. Employment Agmt - Livas AGENDA MEMO DATE: October 12, 2010 TO: Mayor and Members of the City Council FROM: Office of the City Attorney Charles S. Vose, Interim City Attorney SUBJECT: CONSIDERATION OF EMPLOYMENT AGREEMENT WITH GILBERT A. LIVAS FOR THE TRANSITION OF THE CITY MANAGER POSITION EFFECTIVE DECEMBER 31, 2011 RECOMMENDATION That the City Council approve the attached Employment Agreement with the current Assistant City Manager, Gilbert Livas, to retain Mr. Livas as the City Manager for the City of Downey effective December 31, 2011. This agreement is consistent with the recommendations of the Council Sub-Committee and prior City Council action to ensure the proper transition of the management of the City. BACKGROUND/DISCUSSION In March of this year the City Council approved an Amendment to the Employment Agreement with the current City Manager and a Memorandum of Agreement with the Assistant City Manager to ensure quality management of the City in anticipation of the current City Manager’s retirement plans. A Subcommittee of the City Council has negotiated the attached agreement consistent with this prior action of the City Council and is recommending approval of the attached Employment Agreement with Gilbert A. Livas. The Employment Agreement is very similar to the existing agreement with the current City Manager. It will become effective upon approval of the City Council and execution by the parties and provides for Mr. Livas to become the City Manager on December 31, 2011. The attached Employment Agreement sets forth a base salary of $220,000 per year with benefits consistent with those provided to management employees of the city. CITY OF DOWNEY, CALIFORNIA EMPLOYMENT AGREEMENT THIS AGREEMENT is made and entered into as of the ____ day of October, 2010, by and between the City of Downey, State of California, a Municipal Corporation, hereinafter called the “City,” and Gilbert A. Livas, hereinafter called “Employee.” R E C I T A L S: In accordance with action taken earlier this year by the City Council, the tenure for the current City Manager for the City will automatically expire and cease on December 30, 2011. It is the desire of the City Council to provide for a fluid and effective transition of the office of City Manager to occur on December 31, 2011. In this regard, City desires to employ the services of Employee, and Employee desires to accept employment as City Manager of the City of Downey to commence on December 31, 2011. The City Council desires to: 1.Insure that its responsibilities to the health, safety and general welfare of the public are met at all times; 2.To attract and retain in its employment a City Manager who exhibits the highest degree of fidelity, knowledge, experience, technical expertise, professionalism and qualities of leadership necessary to protect the health, safety and general welfare of the public; 3.Secure and retain the services of Employee and provide inducement for him to remain in such employment; 4.To make possible full work productivity by assuring Employee’s future security; and 5.To provide a just means for terminating Employee’s services at such time as he may be unable to fully discharge his duties, or when City may desire to otherwise terminate his employment. The City Council further desires to provide certain benefits, establish certain conditions of employment and to set working conditions of Employee. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1.Duties. City agrees to employ Gilbert A. Livas to serve as City Manager of City effective on December 31, 2011, and to perform the functions and duties specified in City’s Charter, Municipal Code and to perform such other legally, permissible and proper duties and functions as the City Council may from time to time assign as of that date. 2.Term. (a) Pursuant to the terms of the Charter, effective December 31, 2011, Employee shall serve at the pleasure of the City Council. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the City Council to terminate the services of Employee for any reason, subject only to the provisions set forth in paragraph (d) of this Section 2. (b) Nothing in this agreement shall prevent, limit or otherwise interfere with the right of Employee to resign at any time from his position with the City, subject only to the provisions set forth in Section 2, paragraph (d) of this agreement. (c) Employee agrees to remain in the exclusive employment of City and not to become otherwise employed while this agreement is in effect without the express written consent of the Council. (d) City may terminate this agreement for any reason by submitting six (6) months’ written notice to the Employee stating the Council’s intention to terminate this Agreement and remove him as City Manager and the reasons therefor. City shall comply with the requirements of Section 607 of the Downey City Charter. The time periods specified in Section 607 shall be deemed to run concurrently with the six months’ notice provision of this section. If termination is for any reason other than Employee’s commission of an illegal act punishable as a misdemeanor or felony involving personal gain to him, City shall pay to Employee a lump sum severance payment in an amount equal to six (6) months salary and benefits then in effect pursuant to this Agreement as of the last day of employment. For the purpose of resolving any dispute regarding whether the severance payment has been properly denied, the City shall have the burden of establishing by a preponderance of evidence that Employee committed an illegal act punishable as a misdemeanor or felony involving personal gain to him. Employee may terminate this Agreement for any reason by submitting written notice to the City that this Agreement will terminate in forty-five (45) days. 3.Salary. (a) City agrees to pay Employee for his services rendered pursuant hereto an annual base salary of two hundred and twenty thousand dollars ($220,000) payable in installments at the time as other employees of City are paid. It is the intention of the City to maintain a 10% pay differential between Employee and the next highest paid City employee. Starting on January 15, 2013, and continuing on the fifteenth day of January each year thereafter, the City Council shall publicly take action to increase Employee’s salary to maintain at least a 10% pay differential with the next highest paid City employee. (b) In addition, City may increase said base salary and/or any other benefits of Employee in such amounts and to such an extent as City Council may determine that it is desirable to do so on the basis of an annual salary and performance review of Employee made at the same time as similar consideration is given to other management employees generally. (c) City agrees not to at any time during employment, reduce the salary or other financial/fringe benefits of Employee. 4. Hours of Work and Executive Leave. It is recognized that Employee must devote a great deal of his time outside normal office hours to do business of the City, and to that end, Employee will be allowed to take compensatory time off as he shall deem appropriate during said normal office hours. The Employee shall also be entitled to take nine (9) days of compensated executive leave per fiscal year. 5. Health Insurance. City shall pay the entire yearly premium of the Employee and his dependents coverage in the health insurance program available to management employees. In the event the City implements a program for all management employees to pay for a portion of this cost, City and Employee shall commence proceedings to review and adjust, if necessary, Employee’s cost of health insurance premiums. 6.Retirement. City shall contribute the employer and Employee’s portion of cost of membership in the Public Employees Retirement System (PERS) during the term of this Agreement. In the event the City implements a program for all management employees to pay for a portion of this cost, City and Employee shall commence proceedings to review and adjust, if necessary, Employee’s cost of membership in PERS. 7.General Expense. City recognizes that certain expenses of a non-personal and job affiliated nature may be incurred by Employee and hereby agrees to reimburse Employee said reasonable expense as are submitted to the City Council for approval based upon expense receipts, statements, or personal affidavits, and audited thereof in like manner as other demands against the City. 8.Automobile. City shall provide an automobile for Employee’s exclusive and unrestricted use during his employment with the City. City shall be responsible for paying for liability, property damage, and comprehensive insurance and for the purchase, operation, maintenance, repair, and regular replacement of said automobile. 9.Long Term Disability. City shall pay for a sixty (60) day elimination period Long Term Disability Policy for Employee. 10. Civic Club Membership. City recognizes the desirability of representation in and before local civic and other organizations. Employee is authorized to become a member of such organizations for which City shall pay all expenses up to a maximum of Twelve Hundred ($1,200.00) dollars per year. 11.Bonding. City shall bear the full cost of any fidelity or other bonds required of the Employee under any law, City Charter or Ordinance. 12.Indemnification. City shall defend, hold harmless and indemnify Employee against any claim or legal action to the extent and in the manner required by state law. 13.Notices. Notices pursuant to this agreement shall be given by deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows: (a) City: Mayor P.O. Box 607 Downey, CA 90241 (b) Employee: Mr. Gilbert A. Livas P.O. Box 607 Downey, CA 90241 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. 14.Other Terms and Conditions of Employment. (a) The City Council may from time to time, fix other terms and conditions of employment relating to the performance of Employee provided such terms and conditions are not inconsistent with or in conflict with the provisions of this agreement, the Municipal Code, the City Charter, or applicable law. (b) Employee shall be entitled to twelve (12) days of sick leave per year. Employee may sell back at full rate of pay a maximum of twelve (12) days of accrued but not st utilized sick leave on July 1, 2012, and each July 1 thereafter. (c) Employee shall be entitled to twenty (20) working days of vacation per year. Employee may accumulate such vacation pay up to a maximum of ten (10) weeks. Any vacation accumulated in excess of ten (10) weeks shall be lost. (d)Subject to prior Council authorization, City shall pay Employee’s memberships in “standard” professional associations, including the International City Management Association. Employee shall have a reasonable right to attend meetings of such associations at City expense if such meetings are conducted within the State of California and out-of-state meetings with City Council authorization. (e) The fringe benefits set forth herein are minimum benefits and to the extent greater benefits are extended to other non-sworn management employees of the City, the City Manager shall be entitled to such benefits. All provisions of the Municipal Code, City Charter, Memorandum of Understanding, and Personnel Rules relating to fringe benefits as now exist or hereinafter may be amended shall apply to Employee in like manner as they apply to other non- sworn management employees of City. 15.General Provisions. (a) The text herein shall constitute the entire agreement between the parties. (b) This agreement shall be binding upon and inure to the benefit of the heirs-at- law and executors of Employee. (c) This agreement shall be effective as of October ____, 2010. (d) If any provisions or any portion hereof contained in this agreement is held to be unconstitutional, invalid or unenforceable, the remainder of this agreement or portion thereof shall be deemed severable and shall not be affected and shall remain in full force and effect. Executed in triplicate as of the day and year first above written. ____________________________________ Gilbert A. Livas ATTEST: _______________________________ By__________________________________ CITY CLERK MAYOR Approved as to form: _______________________________ CITY ATTORNEY