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HomeMy WebLinkAboutC20161 City Manager Employment Agreement - Carlos L. Ortega2005-09-18 14:26 From -BEST BEST KRIEGER 7603408698 T-184 P.001/009 F-112 JV M AN &C.F.R AGREEMENT THIS AGREEMENT is entered into the day of July, 2005 between the CITY OF PALM DESERT, a municipal corporation, by and through it3 City Council (hereinafter referred to as the "City") and CARLOS ORTEGA (hereinafter referred to as "Mr. Ortega"). The above named parties hereby mutually promise and agree: WHEREIN, the parties entered into an Agreement on May 9, 2002 for employment of Mr. Ortega as City Manager for the City of Palm Desert, California. This Agreement i, intended to clarify the terms of such Agreement and cmployinent. The panics need to agree as follows. 1. Employment The City desires to employ Mr. Ortega as its City Managcr, and Mr. Oncga agrees to accept employment by the City as its City Manager upon the terms and conditions set forth below. 2. Responsibilities Mr. Ortega, as City Manager, shall be responsible to the City for all actions conc:crning the City's management and operations. In particular, he shall be responsible for, but not limited to: a. Performing functions and durics as specified by the City's policy manual and performing other legally permissible and proper duties and functions as the City shall, front time to time, assign in accordance with applicable law. b. Interviewing, hiring, reviewing and terminating employees and department directors. C. Managing all aspects of personnel employed by the City. 1 Received Sep-16-06 02:33pm From-7603406698 To -PALM DESERT CITY CLE Page 01 2005-09-16 14:26 From -BEST BEST KRIEGER 7603406698 T-164 P-002/009 F-116 In addition, Mr. Ortega shall perform such other duties as may be assigned by the City. The City agrees: to provide Mr. Ortega with adequate technology (computer, cellular telephone_ pager) to accomplish his duties. 3. Term of Employment a. This Agreement shall be for an indctinite term until terminated as herein provided- b. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City to terminate without cause the services of Mr. Ortega xt any time, subject only to the payment of -severance pay as provided in Section 4. C. Exccpt as provided in Scction 5, nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of Mr. Ortega to resign at anytime from his position with the City. 4. Teruduation by City a. Mr. Ortega serves at the will and pleasure of the City and may be terminated with or without cause at any time during this Agreement. Consequently, nothing in this Agreement, including but not limited to Section 3 above, shall in any way affect the City' s right to tern nate the employment of Mr_ Ortega and this Agreement with or without cause as provided herein. b. In the event Mr. Ortega's employment is terminated either involuntarily or through a negotiated resignation, the City agrees to pay Mr. Ortega a terminating cash payment equal to six (6) months aggregate salary; benefits and deferred compensation ("severance pay"). Mr. Ortega :hall also be compensated for all accrued vacation, holidays, other benefits, in accordance with City policy. 3everauee pay shall be paid in full within fifteen (15) working days after the effective da- tv of Mr. Ortega 's termination or negotiated resignation unless Mr. RMPURZM25-41043 0) Received Sep-16-05 02:85Pm From-7605408898 To -PALM DESERT CITY CLE Page 02 2005-09-18 14:28 From -BEST BEST KRIEGER 7603406699 T-184 P.003/009 F-113 Ortega elects to receive payments in other increments as determined by Mr. Ortega. Mr. Ortega may elect, in lieu of cash payment, to be compensated on a monthly basis with maintenance of full benefits until all severance pay and leave time is exhausted C. In the cvcnr Mr. Omega's employment is termin+atad for cause, based on serious misconduct, he shall not be entitled to any severance payment. "Serious misconduct" is defined as follows: Agreement. i. A willful breach of thia Agreement. ii. Habitual neglect of duties required to be performed under tlus iii_ Entry of a plea of guilty or nolo contenders to a felony or a crime involving moral turpitude. iv. Commission of any act which would constitute a crime, whether misdemeanor or felony, and which would bring disrespect to the office of City Manager or the City. V. Refusal or failure to act in accordance with a specific directive or order of the City Council. vi. Maintaining a conflict of interest after being directed to resolve said contlic.-t by a majority of the City Council. vii. Use of illegal drugs or abuse of legal drugs if job performance is adversely affected. viii. Sexual or other prohibited harassment of a City employee, or physical violence directed at any City employee. RMPUBOJEC55104 2 3 Received Sap-16-05 02:33pm From-7603406696 To —PALM DESERT CITY CLE Page 03 2005-09-16 14:29 From -BEST BEST KRIEGER 7603406696 T-194 P.004/009 F-113 d. The City shall deliver to Mr. Onega it written statemcat which explains the grounds for a termination for Serious Misconduct before his employment is terminated. The City's action to terminate the employment relationship shall be final and is not dependent on any particular showing or degree of prout: Nevertheless, Mr. Ortega may seek judicial rcvicw of the City's action to withhold severance pay. In such an action, the City bears the burden of proving Serious Misconduct. C. In the event the City reduces the salary, compensation, other financial benefits, or scope of authority of Mr. Ortega in a greater percentage than applicable with an across-the-board reduction for all management employers of the City, or in the evcnt the City refuses, following written notice, to comply with any other provision benefitting Mr. Ortega contain«i in this Agreement, then, in that event, Mr. Ortega may elect to be deemed to bC terminated at the date of such occurrence within the meaning and context of the scvcroncc pay provision. 5. Termination by Mr_ Ortega a. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Mr. Ortega to resign at any time from his position with the City, subject only to the provisions set forth in this Agreement. b. In the event Mr. Ortega resigns, he shall not be entitled to any severance pay. In other words, this Agreement, Mr. Ortega's employment and the City's obligations to compensate Mr. Ortega shall cease on the effective date of resignation. e. In the event Mr. Ortega voluntarily resit his position with the City, he shall gve the City thirty (30) days written noricc. in advance, unless the partim agrc-c otherwise. Rnnru8%DJM55ic)a a 4 Received Sep-16-05 02:23pa From-7602406696 To -PALM DESERT CITY CLE Page 04 2005-09-16 14:29 From -BEST BEST KRIEGER 7603406696 T-104 P-009/009 F-118 6. -Mr. Ortega's '>Cimc Mr. Ortega shall devote his f411 productive time, ability and attCndun to his duties as City Manager. Mr. Ortega shall not directly or indirectly render any services of a business, commercial or professional nature to any other person or organization for compensation. Both parties recoguizc that Mr. Ortega is a member of the International City/County Management Association (JCMA) and is subject to the ICMA Code of Ethics, with professional obligations to the City, incl4dmg restrictions on personal investments and employment in the community. 7. Salary A. The Salary of Mr. Ortega, for his services as City Manager, shall be dollar: (S ) per year, payable in installmcnrs at the same time as other management employees of the City or as the same maybe modified in accordance the annual performance review of paragraph 9 hereinafter set forth. 17he salary for Mr. Ortega shall be in addition to and not included within all benefits to other management employees, including cost of living increase, life, medical and dental insurance, deferred oompensativn pratTatn, retirement program, sick leave and paid jury duty. b. The City shall reimburse Mt. Ortega, within its approved budget and upon approval of the City, for all actual and necessary expenses incurred in connection with the performance of his official duties. Mr. Ortega agrees to maintain accurate records of all expenses for which reimbursement is claimed. b_ 8enefits a_ Except as provided for otherwise in this Agreement. Mr. Onega shall be entitled to receive all benefits provided to other City management employees. These benefits include, but are not limited to, cost of living increase, life, dental and medical insurance, deferred RM Pulk%Djblass 4a4 z 5 Received SOP-18-05 02:93pm From-7603406698 To -PALM DESERT CITY CLE Page 05 2005-09-16 14:29 From -BEST BEST KRIEGER 7603406696 T-184 P.006/009 F-118 compensation program, retirement program, sick leave and paid jury duty. Mr. Ortega's entitlement to full benefits shall commence immediately upon Mr. Ortega's commencement of duties under this Agreement. b. Mr. Ortega may accrue up to six (6) months vacation leave. Upon termination of this Agreement, voluntary or otherwise, Mr. Ortega shall be compensated for all accrued vacanon leave. c. While employed by the City, the City shall pay the insurance premiums for a term life insurance policy in the amount of four (4) times his annual base salary set forth in Scetion. 7 above, as from time to time adjusted. The City may select the carrier to provide coverage or compensate Mr. Ortega (up to the cost of a term life policy) for life insurance payments made by him. d. Mr. Ortega's duties require that he shall have available a personal automobile for his use, at all times. Mr. Onega shall also be responsible for the insurance (liability, property damage, and comprehensive), operating expenses, maintenance and repairs of the automobile. The City shall compensate Mr. Ortega for mileage in accordance with the City's standard reimbursement policy, as may be amended lttom rime to time. as is applicable to all other City employees. Mr. Oncga may use City vehicle w, when such vehicles arc available. 9. Performance Evaluation The City shall review Mr. Ortega's performance, on a yearly b4sis, and develop mutually agreeable performance goals and criteria for the subsequent year. Thereafter, in consultation with W. Ortega, the City may change such goals and cntena, from time to time. At least once annually thereatfcr, the City shall review Mr. Ortega's performance to determine any salary increase deemed appropriate based on his annual performance review. 10. Conferences, Training and Education waPUB%D M2s.:U42 6 Received Sep-16-05 02:88pm From-7608406696 To -PALM DESERT CITY CLE Page 06 2005-09-16 14:29 From -BEST BEST KRIEGER 7603406696 T-164 P-007/009 F-113 Mr- Ortega shall be reimbursed. within budget, for the cast of ancnding national, state and local conferences, provided the City Council explicitly approves of such attendance in advance. When possible, and in the City's discretion, the City shall budget and pay for the cost of registration, housing, travel and 5ub5istencc rclatud to these programs, which in the opinion of the City, serve to continue the professional development of Mr. Ottrga. 11, Arbitration Any disagreement between Mr. Ortega and the City regarding Mr. Ortega's employment pursuant to this Agreement shall be subject to final and binding arbitration. in aLcordance with the rules of the American Arbitration Asux iution. 12. Attorneys' FL4w If the services of an attorney are required by either patty to secure the pert'ormance hereof, or otherwise upon the breach or default of either party, or if any juridical remedy or arbitration is necessary to cnforce or interpret any provision of this Agrcement, or the tights and duties of any person in relation thereof, the prevailing party shall be entitled to reasonable attorneys' fees. 13. Bonding The City shall bear the full casts of any $delity or other bonds required of Mr. Ortega under any law or ordinance. 14. Cenerxl Provisions a. This Agreement supersedes any and all other agreements, either oral or written, or implied by the prior course of conduct between the panics hereto with respect to the employment of Mr. Ortega by the City and contains all of the covenants and a_%vrrements between the parties with respect to the employment of Mr. Ortega by the City. J0APU&DJ8,25? t04 2 fN Received Sep-16-05 02:33po From-7603406698 To -PALM DESERT CITY CLE Page 07 2005-09-16 14:30 From -BEST BEST KRIEGER 7603406696 T-194 P.009/009 F-112 b. Each party agrees and acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied hcrcin and that any agreanent, statement, or promise not contained in this Agreement shall not be valid or binding on either party. C. Any modification of this Agreement will be effective only if made in writing and signed by both Mr. Ortega and the City. d. if any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless oontinue in full force and effect without being impaired or invalidated in any way C. Thi-s Agreement shall be governed by and construed in accordance with the law of the Statc of California. f. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor or against any party. By way of example and not to 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. g. Mr. Ortega acknowledges that he has had an opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agrccracnt, 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- h. The following rules shall apply in interpreting the meaning of this Agreement: (a) "includes" and "including" arc not limiting, (b) "or" is not seclusive, W cach FWPUS%DJkLS5104 3 s Received Sop-16-05 02:33pm From-7603406698 To -PALM DESERT CITY CLE Page 08 2006-09-16 14:30 From -BEST BEST KRIEGER 7602406698 T-164 P.009/009 F-113 reference to any gender shall include reference to all other genders, as appropriate, and (d) "ail" includes "any" and "any" includes "all. i. TYus Agrcctncnt shall become effecuve commencing 2005 ("effective date")_ ATTEST: Rachcllc Mass= City Clcrk City of Palm Desert RMPU5:%nJ"5S lti4 2 E C'ARLOS ORTEGA CITY OF PALM DESERT By: BUFORD CRiTES, MAYOR Received Sap-16-05 02:33pm From-7603406698 To -PALL DESERT CITY CLE Page 09