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HomeMy WebLinkAboutC35220 - Ratify Employment Agreement for Interim City ManagerREQUEST: SUBMITTED BY: DATE: CONTENTS: Recommendation: CITY OF PALM DESERT HUMAN RESOURCES DEPARTMENT STAFF REPORT CONTRACT NO. C35220 Ratification of Agreement with Justin McCarthy for Interim City Manager services. Lori Carney, Human Resources Manager April 28, 2016 Agreement for Interim City Manager services. By Minute Motion: Ratify agreement dated April 19, 2016, with Justin McCarthy for Interim City Manager services. Executive Summarv: At its April 14, 2016 meeting the Council announced the appointment of Justin McCarthy as Interim City Manager and directed the City Attorney to draft an agreement, including terms of payment. Mr. McCarthy is a retired annuitant and as such will be paid an hourly rate of $119 per hour, equivalent to the prior City Manager's rate of pay. He will receive no fringe benefits, with the exception of the mandatory contribution to Medicare. Staff Report Ratification of Agreement with Justin McCarthy April 28, 2016 Page 2 of 2 Fiscal Analvsis: The cost will vary depending on the length of service however he is limited to 960 hours in a Fiscal Year. For FY 16/17 there will be no budgetary impact as the City Manager's salary is included in the budget. Submitted by: i Lori Carney,'Fiuman Resources Manager Paul S. Gibson, Director of Finance Attorney CONTRACT NO. C35220 EMPLOYMENT AGREEMENT for INTERIM CITY MANAGER I. PARTIES AND DATE. This Employment Agreement ("Agreement") is made by and between the City of Palm Desert, a municipal corporation (the "City") and William Justin McCarthy ("Employee"), effective April 19, 2016, to provide in writing the terms and conditions of employment for Interim City Manager services. The City and Employee are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Interim City Manager. The City desires to employ the services of Employee as Interim City Manager of the City of Palm Desert, and Employee desires to accept employment as Interim City Manager. It is the desire of the Parties through this Agreement to provide for certain benefits, establish conditions of employment and to set working conditions for Employee. 2.2 Temporary Appointment. Employee's employment is authorized by Government Code Section 21221(h) which permits the City Council to appoint a California Public Employee's Retirement System ("Ca1PERS") retiree to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that such appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year 3. TERMs. 3.1 Duties. 3.1.1 Interim City Manager. The City shall employ Employee as Interim City Manager of the City to perform the functions and duties of a city manager, as specified in the laws of the State of California and the ordinances and resolutions of the City of Palm Desert. 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 Conduct. Employee shall be subject to and shall comply with the standards of conduct and ethical principles set forth in the City's ordinances and resolutions, and with the ICMA Code of Ethics. 3.1.3 Control and Supervision. Employee shall serve at the will and pleasure of the City Council. 3.1.4 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, 7 2500.00217\24793 R R 5.1 CONTRACT NO. C35220 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. 3.1.5 Status and Authority of Employee. Employee shall at all times be considered an agent or employee of the City. Employee shall act as a representative of City in such a manner as may be required to carry out Employee's duties hereunder. 3.2 Conditions of Employment. 3.2.1 Part Time Authorized. Employee is expected to devote necessary time, within and outside normal business hours, to the business of the City. However, in accordance with Government Code Section 21221(h), Employee shall not work under this Agreement for more than a total of 960 hours in any fiscal year. It is understood by both parties that employment with other Ca1PERS employers shall count against the 960 hours per fiscal year limitation. Employee shall be allowed to establish a schedule that is less than full time in order to maximize the use of the 960 hours throughout an entire fiscal year; provided, however, that Employee's schedule shall be acceptable to the City Council and shall be established in advance on at least a quarterly basis. 3.2.2 No Conflicts. During the term of this Agreement, Employee shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of Employee's duties under this Agreement. Employee's uncompensated roll as a board member of the California Municipal Finance Authority and the California Foundation for Stronger Communities are not considered a conflict. 3.3 Compensation; No Fringe Benefits. 3.3.1 Compensation. For services rendered pursuant to this Agreement, Employee shall be compensated at the hourly rate of $119.00. This hourly rate is established pursuant to the requirements of Government Code Section 21221(h) and may only be modified if permitted thereby. The compensation shall be paid at the same time and in the same manner as salaries are usually paid to Miscellaneous Employees of the City and shall be subject to all applicable taxes, and other required deductions. Such compensation shall be Employee's sole compensation for his service under this Agreement. Notwithstanding the foregoing, the City shall pay for workers' compensation insurance for Employee. Employee shall not be entitled to any additional benefits provided by City to its employees, including, but not limited to, paid vacation, paid holiday leave, paid sick leave, medical insurance, dental insurance, life insurance, disability insurance, unemployment insurance, and vehicle allowance. 3.3.2 Reimbursable Expenses. City shall reimburse Employee for his direct, reasonable and necessary expenses incurred in the performance of his duties and in compliance 2 7 2500.00217\2479 3995.1 CONTRACT NO. C35220 with City of Palm Desert Administrative Code, subchapter 3.07. Prior authorization is required from the Mayor, or in the absence of the Mayor from the Mayor Pro Tempore, for all expenses except transportation to or from any authorized or required event or activity and long-distance communications. 3.4 Term; Termination. 3.4.1 Term. The term of this Agreement shall be effective as of April 19, 2016 and shall continue until a permanent City Manager has been recruited, selected and employed by the City Council unless sooner terminated by the City or Employee. This Agreement is subject to ratification by the City Council at its meeting on April 28, 2016. If not ratified by the City Council, this Agreement shall terminate immediately. 3.4.2 Termination. This Agreement may be terminated with or without cause at any time upon thirty (30) days advance written notice given by Employee to City or immediately upon notice by City to Employee. No compensation or severance payment of any kind shall be payable upon termination of this Agreement, other than any compensation due and owing under this Agreement through the last effective date of employment. The Parties understand and agree that the temporary employment relationship created by this Agreement is "at -will" and that the Employee shall serve at the will and pleasure of the City Council, and may be terminated at any time, without notice and with or without cause. Nothing in this Agreement, any statute, ordinance or rule shall prevent, limit or otherwise interfere with the right of the City Council to terminate, without cause or right of appeal or grievance, the services of the Employee at any time and without notice. Notice of termination may be delivered personally or by mail. 3.5 Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose, by deposit in the custody of the United States Postal Service, postage pre -paid, addressed as follows: CITY: City of Palm Desert Attn: City Attorney 73510 Fred Waring Drive Palm Desert, California 92260 EMPLOYEE: William Justin McCarthy 2 Calle Del Apice San Clemente, CA 92672 Alternatively, notices required pursuant to this Agreement may be personally served in the 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 United States Postal Service. 3.6 Indemnification. The City shall defend, save harmless and indemnify Employee against any tort, professional liability, claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of 3 72500.00217\24793885.1 CONTRACT NO. C35220 Employee's services as Interim City Manager, except that this provision shall not apply with respect to any intentional tort or crime committed by Employee, or any actions outside the course and scope of his employment as Interim City Manager. 3.7 General Provisions. 3.7.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties. This Agreement may be amended in writing and signed by both Parties. 3.7.2 Severahility. 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. 3.7.3 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 Interim City Manager. 3.7.4 Modification. Any modification to this Agreement will be effective only if it is in writing and signed by both Parties. 3.7.5 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. 3.7.6 Assignment. Neither this Agreement, nor any right, privilege or obligation of Employee hereunder shall be assigned or transferred by him 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. 3.7.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be in Riverside County, California. 3.7.8 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. 3.7.9 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. 4 7250O.W217\224793885.1 CONTRACT NO. C35220 IN WITNESS WHEREOF, the City of Palm Desert has caused this Agreement to be signed and executed on its behalf by its Mayor, and duly attested by its City Clerk, and Employee has signed and executed this Agreement, both in duplicate, effective on the day and year first above written. Dated: April 14, 2016 Dated: 'I ! 72500.00217\24793885.1 CITY OF PALM DESERT M. Robert A. Spiegel, Mayor Attest: Rachelle D. Klassen, City Clerk Willi, u. tin McCarthy, Employ 5