CITY OF TWENTYNINE PALMS
This Employment Agreement (the “Agreement”) is made this 26th day of April, 2011, by and between the City of Twentynine Palms, California, a municipal corporation, hereinafter referred to as “City” and Richard N. Warne hereinafter referred to as “Manager” or “City Manager.”
The City Council of the City wishes to employ Manager as the City Manager of the City of Twentynine Palms on the terms and conditions set out herein; and Manager has the skill and ability to serve in such position and wishes to accept such employment on the terms and conditions set out here.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND
COVENANTS CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS
Section 1. Employment and Duties
The City hereby agrees to employ the Manager as the chief executive officer of the City to perform and carry out the duties and functions of the office of City Manager as specified in the City’s ordinances, City’s rules and regulations, and state and federal law, and to perform such other legally permissible and proper duties and functions as the City Council shall from time to time assign. The Manager agrees that to the best of his ability and experience he will at all times loyally and conscientiously perform all of the duties and obligations required of him as specified in the City’s ordinances, City’s rules and regulations, and state and federal law. The Manager shall be subject to the control and direction of the City Council. Directives by members of the City Council to the City’s staff shall be through the Manager.
Section 2. Term of Employment and At-will Employment Status
Manager agrees to commence the performance of his duties under the terms of this Agreement on or before May 2, 2011, with such date being designated as his hire date, and shall continue until he resigns or is terminated as provided herein. It is expressly understood and agreed that Manager serves as an at-will employee of the City and the City Council may terminate the Manager’s employment, with or without cause, and at any time and for any reason as provided herein that is not a violation of public policy. Termination, either for cause or without cause, shall require the vote of not less than three members of the City Council. The City has personnel rules and policies which shall apply to the Manager; except that no provision in such rules and policies which would conflict with any provision of this Agreement shall apply to the Manager, including specifically, without limitation, any such rule or policy (such as those related to discipline or termination) which if applied would be in conflict with the at-will nature of the Manager’s employment and the fact he serves at the pleasure of the City Council.
Section 3. Limitation on Termination Without Cause
Notwithstanding those provisions of Section 2 herein above set forth, the City Manager shall not be terminated without cause, during or within a period of ninety (90) days following the swearing in of a City Council Member after any municipal election held in the City at which a member of the City Council is elected or when a new City Council member is appointed. The purpose of this provision is to allow any elected or appointed member of the City Council or a reorganized City Council to learn his or her City Council duties, understand the complex functions of municipal government and directly observe the actions and ability of the City Manager in the performance of the powers and duties of his office. After the expiration of said ninety-day (90) period aforementioned, the provisions of Section 2 as to the termination of the Manager without cause shall apply.
Section 4. Twelve Month’s Severance Pay Upon Termination Without Cause
In the event he is terminated without cause, the Manager shall be entitled to receive the following as severance pay: (1) a lump sum equal to the monthly Base Salary noted in Section 7(A) below, in the amount applicable as of the effective date of the termination, multiplied by 12, and (2) the Health, Dental and Vision benefits identified in Section 8(D) below for a period equal to the shorter of: (i) 12 months following the effective date of the termination or (ii) the date upon which Manager commences new employment which provides health benefits.
Manager shall also be paid a lump sum for all accrued, but unused administrative leave and vacation time, and shall be paid for any unused sick leave in accordance with City’s Personnel Rules and Regulations.
Severance pay provided under this Section shall be the Manager’s sole and exclusive remedy for any and all claims for damages related to this employment pursuant to this Agreement and shall be in lieu of any other notice, hearing or severance rights the Manager may have under any other code or regulation of the City. Manager hereby waives any cause of action against City, its employees, officers or agents for any termination pursuant to the terms of this Agreement.
Section 5. Termination For Cause
The City Council may terminate Manager’s employment for cause at any time in the event of the Manager’s misconduct as defined in this Section. Manager shall not be entitled to any severance payment as set forth in Section 4 above in the event Manager is terminated for cause.
Misconduct shall mean the Manager’s conviction for the violation of any criminal law committed at any time, (except crimes defined as infractions and any minor traffic offenses), malfeasance (which shall mean intentional acts or gross neglect by Manager of his duties of a nature that violate generally accepted standards of conduct by a city manager (including, by way of example, conduct which might be criminal in nature but for which charges are not brought or have not yet been fully prosecuted – such as bribery, financial conflicts of interest, or violations of Government Code Section 1090.)
Section 6. Termination by Manager
The Manager may voluntarily resign and thereby terminate this Agreement upon written notice to the City Council and shall give forty-five (45) days prior notice. Manager is not entitled to severance pay as set forth in Section 4 above upon his voluntary resignation. In the case of voluntary resignation, the Manager shall be paid a lump sum for all accrued, but unused administrative leave and vacation time. Unused sick leave shall be paid in accordance with City’s Personnel Rules and Regulations.
Section 7. Compensation
The Manager shall receive the following compensation in consideration for his services:
A. Base Salary. To ensure Manager is maintained at an appropriate compensation level commensurate with his supervisory responsibilities and status as the organization’s chief executive officer, the City Council has established a starting salary of Fourteen Thousand Two Hundred Ninety-One Dollars and Sixty-Six Cents ($14,291.66) per month [i.e., One Hundred Seventy-One Thousand Five-Hundred Dollars ($171,500) per year], paid bi-weekly in accordance with City’s payroll for other City employees.
The manager always will be paid at a level above that of the next highest paid
employee in the City.
B. Overtime. The Manager shall be an exempt managerial employee and not subject to any overtime compensation under the Fair Labor Standards Act (FSLA).
C. Compensation Adjustments. The Manager’s salary and benefits will be adjusted for cost-of-living by the same percentage as approved by the City Council as other management employees. For purposes of this Agreement, the term management employees shall mean: City’s Director of Finance, Community Development Director, Community Service Director, City Clerk and Public Works Superintendent.
The Manager shall be eligible for a merit increase at such times as the City Council deems appropriate.
D. Compensation Reductions. City shall not, at any time during the term of this Agreement reduce the salary, compensation or other financial benefits of Manager once granted, excepting however, Manager’s compensation may be decreased in an amount that is the pro-rata equivalent of any salary reduction implemented for all management employees as defined herein.
Section 8. Benefits In addition to the compensation set forth in Section 7 of this Agreement, and as additional consideration, Manager shall be entitled to the following benefits:
A. Life Insurance. The City shall pay the premium for a term life insurance policy, that lists Manager as the named insured, and which has a death benefit of one hundred thousand dollars ($100,000), and the beneficiary of such policy shall be designated by Manager.
B. Vacation. Manager shall accrue, cash out and otherwise use vacation time as set forth in the City’s Personnel Rules and Regulations excepting that he shall accrue a greater amount of vacation time than set forth in such Rules and Regulations as set forth herein. Specifically he shall be entitled to 120 hours of annual vacation time (accrued as set forth in the Personnel Rules and Regulations), and may accrue a maximum of 320 hours of vacation time. The Manager’s vacation shall be scheduled in coordination with the City Council.
C. Retirement. The City participates in the California Public Employees Retirement System (CalPERS). City shall report and pay required employer and employee contributions on behalf of Manager at the 2.5% at age 55 program. Contributions on behalf of the Manager shall be based on Manager’s gross salary, including current and deferred compensation. In addition, City agrees to deposit eight (8) percent of the Manager’s base pay as deferred compensation into Manager’s International City Management Association Retirement Corporation (ICMARC) Section 401 Money Purchase Plan or Section 457 Deferred Compensation Plan or such other qualified retirement plan as may be designated by Manager as permitted by law.
Manager may contribute additional amounts from his base salary to the retirement program. Except as may otherwise be provided by law or specific retirement plan rules, vesting will be and remain at one hundred (100) percent from date of employment and Manager’s ownership in said plan and program assets shall survive the termination of this Agreement and termination of Manager’s employment with the City.
D. Health, Dental and Vision Insurance. As of the effective date of this Agreement City provides health insurance, dental and vision benefits to employees pursuant to programs offered by the California Public Employees Retirement System (CalPERS) including two HMO plans provided by Kaiser Permanente and Blue Shield of California. City shall pay the health, dental and vision premium for the Manager under either of these HMO plans, as he may choose, in an amount as needed to cover the category of “employee and two or more dependents” which exists in both programs. If the City changes insurance providers such that the foregoing coverage is not available, or if City providers change their plans such that the above coverage is no longer available, then the City and the Manager shall renegotiate the level of health benefits to be provided by City to Manager, with the intention of providing a benefit that is the approximate equivalent of the coverage provided by the above noted provisions.
E. Sick Leave. The Manager shall accrue sick leave at the same rate as other management employees, which currently is at a rate of ninety-six (96) hours per year or 3.69 hours per pay period. Manager’s accrual of and ability to cash out or convert sick leave, including upon separation from employment, shall be as provided in City’s Personnel Rules and Regulations.
F. Administrative Leave. Manager shall receive eighty (80) hours of administrative leave per year, credited to Manager on his hire date, and the anniversary thereof each year. Unused administrative leave may be carried over from year to year excepting that the maximum amount of administrative leave that Manager may accrue, and carry over, shall be 160 hours. The Manager’s administrative leave shall be scheduled in coordination with the City Council.
G. Disability. The City shall pay the cost and provide the Manager with short-term and long-term disability benefits as provided to other management and regular City employees.
H. Job-Related Expense Reimbursement. The City will pay the Manager’s business expenses as provided by City policies and regulations, as they may be amended from time to time.
I. Technical Equipment. Upon commencement of employment, and assuming provided for in the City’s budget or, if not so provided, if specifically approved by the Council, City shall provide Manager with any equipment necessary to perform Manager’s duties at Manager’s request and shall periodically update such equipment as required.
J. Cell Phone Allowance. In view of the fact that City Council requires that the Manager be available at all times to discuss City business, the Manager shall receive a cell phone allowance of one hundred and seventy-five dollars ($175) per month.
K. Holidays. The Manager shall be entitled to observe City’s official holidays as those may be amended from time to time.
L. Dues and Subscriptions. The City shall pay for the Manager’s professional dues and subscriptions, to the degree included in the City’s budget, necessary for his continued full participation in national, regional, state and local associations and organizations necessary and desirable for continued professional growth and advancement and for the good of the City.
M. Professional Development. The City shall pay for travel and subsistence expenses for the Manager, to the degree included in the City’s budget, for professional and official travel, meetings and similar functions necessary for City, including, but not limited to, state league of cities, and such other national, regional, state and local governmental groups and committees of which the Manager is a member as well as short courses, institutes and seminars necessary for the Manager’s professional development and the good of the City.
N. Civic Club Memberships. The City Council and the Manager recognize the desirability of representation in and before local civic and other organizations, and the Manager is authorized to become a member of local civic clubs or organizations for which, to the degree included in the City’s budget, the City will pay the annual membership dues. The Manager shall notify the City Council of such memberships and regularly attend such meetings.
O. Automobile. In view of the fact that the City Council requires that the Manager provide and operate an automobile in performing his duties hereunder, the Manager shall receive an automobile allowance of five hundred dollars ($500) per month, and will be reimbursed for mileage when driving out of the Morongo Basin on City business.
P. Additional Benefits. Except and unless in conflict with the provisions hereof, Manager shall be entitled to all employee benefits provided by City to management employees as of the effective date of this Agreement, as approved by the City Council, and as they may be amended from time to time, including but not limited to those benefits outlined in any ordinance, resolution City Council minute order and in the City’s Personnel Rules and Regulations.
Section 9. Office and Time Spent
Manager understands that he may need to be available twenty-four (24) hours per day, seven days per week. The parties recognize that Manager must devote a great deal of time outside normal office hours to the business of the City. To that end, the Manager will be allowed to temporarily adjust his work schedule as deemed appropriate to accomplish the City’s business.
Section 10. Residency
Manager agrees to become a resident of the City of Twentynine Palms within a reasonable time from the date that he commences work.
Section 11. Bonding
The city shall bear the full cost of any fidelity or other bonds required of the Manager under any law or ordinance.
Section 12. Performance Evaluations
The City Council shall annually evaluate the performance of the Manager after the completion of the fiscal year. Said review and evaluation shall be in accordance with guidelines and criterion developed jointly by the City Council and the Manager. Said criterion may be added to or deleted from as the City Council and the Manger may from time to time determine. The City Council shall provide the Manager with adequate opportunity to discuss his evaluation in a closed executive session. Annually, the City Council, with the recommendations from Manager, shall define such goals and performance objectives which they determine necessary for the proper and efficient operation of the City. The Manager will assist the City council in establishing relative priority among the various goals and objectives established by the City Council.
Section 13. Indemnification
City shall defend, hold harmless, and indemnify Manager against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of this Agreement, or any alleged act or omission occurring in the course and scope of performance of Manager’s duties in accordance with the provisions of California Government Code Section 825.
Section 14. Housing
The city will pay for reasonable moving expenses incurred for moving household goods to Twentynine Palms. The Manager shall provide the City with three (3) bids for moving and the City shall pay the lowest reasonable bid. Moving expenses shall be capped at fifteen thousand ($15,000) dollars.
Section 15. Other Terms and Conditions of Employment
The City Council and the Manager shall jointly fix any other terms and conditions of employment as it may determine from time to time, relating to the performance of the Manager provided such terms and conditions are not in conflict with the provisions of this Agreement or any applicable law.
Section 16. General Provisions
A. California Law. This Agreement is made in and shall be construed and enforced under the laws of the State of California.
B. Waiver. A waiver of any term or condition of this Agreement shall not be construed as a general waiver by the City or the Manager, and the City or the Manager shall be free to reinstate any such term or condition, with or without notice.
C. Applicability. All provisions of the City ordinances and rules and regulations shall apply to Manager as they would to other management employees of the City except to the degree they would conflict with the terms of this Agreement or as expressly modified herein.
D. Amendment. This Agreement may be amended from time to time, as mutually agreed to by the parties. No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by Manager and approved by minute action or resolution of the City Council.
E. Assignment. This agreement may not be assigned by either party.
F. Binding Effect. This Agreement shall bind all parties, their respective heirs, personal representatives, or assigns, but nothing herein shall be construed as an authorization or right of any party to assign his/its rights or obligations hereunder.
G. Integration. This Agreement shall supersede all prior agreements between the parties hereto; both written and oral, and this Agreement alone shall govern and control their duties and obligation and liabilities. This Agreement shall supersede conflicting provisions of City policies.
H. Severability. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of the Agreement or portion thereof shall be deemed severable and shall not be affected and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties authorized to do so have executed this Agreement as of the date set out above.
Richard N. Warne, City Manager
Jim Harris, Mayor
Attest: Approved as to form:
Charlene L. Sherwood, City Clerk
A. Patrick Muñoz, City Attorney