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1 EMPLOYMENT AGREEMENT
4 THIS AGREEMENT entered into on April 9, 2013, is by and between the CITY OF
5 CONCORD, a municipal corporation (hereinafter referred to as "City") and VALERIE BARONE an
6 individual (hereinafter referred to as "Employee").
7 WHEREAS, the City desires to employ the services of VALERIE BARONE as CITY
8 MANAGER for the City of Concord; and
9 WHEREAS, VALERIE BARONE desires to serve as the CITY MANAGER for the City of
10 Concord beginning April 9, 2013; and
11 WHEREAS, Employee and City acknowledge that Employee's employment with the City is
12 regulated exclusively by this Agreement.
13 NOW, THEREFORE, in consideration of the promises and conditions set forth herein, the
14 parties mutually agree as follows:
15 1. Employment Duties.
16 (a) City agrees to employ Employee as CITY MANAGER to perform the functions
17 and duties specified in the ordinances and resolutions, policies and procedures of City,
18 and to perform other legally permissible and proper duties and functions as the City
19 Council may from time to time assign, provided such terms and conditions are not
20 inconsistent with the provisions of this Agreement or otherwise unlawful. Without
21 limiting the forgoing, this Agreement is expressly subject to the provisions of Concord
22 Municipal Code sections 2-141 through 2-143.
23 (b) Employee shall perform her duties to the best of her ability in accordance with
24 the highest professional and ethical standards of the profession and shall comply with
25 all general rules and regulations established by the City.
26 (c) Employee shall not engage in any activity which is or may become a conflict of
27 interest, prohibited contract, or which may create an incompatibility of office as
28 defined under California law. Employee shall comply fully with her reporting and
1 disclosure obligations under regulations promulgated by the Fair Political Practices
2 Commission (FPPC).
3 (d) Employee agrees to remain in the exclusive employ of the City during the term
4 of this Agreement. Employee shall dedicate her full energies and qualifications to her
5 employment as CITY MANAGER, and shall not engage in any other employment
6 except as may be specifically approved in writing in advance by the City Council. The
7 City Council may withhold said approval with our without reason.
8 (e) Employee recognizes that Employee must devote considerable time outside
9 normal office hours to City business and activities, meetings and functions of the City.
10 To that end, Employee will need to exercise a flexible work schedule consistent with
11 workload demands and use of leave time where appropriate.
12 2. Term. The term of this Agreement shall be from April 9, 2013 until terminated by
13 either party in accordance with the provisions set forth in Paragraph 3, or until terminated by the event
14 of death or permanent disability of Employee, as defined in the City’s short and long term disability
15 insurance policies as they may be amended from time to time.
16 3. Resignation and Termination.
17 (a) Employee may resign at any time and agrees to give City at least 30 days'
18 advance written notice of the effective date of her resignation.
19 (b) City may at any time terminate Employee upon 30 days' advance written notice.
20 (c) The parties recognize and affirm that: (1) Employee is an "at will" employee
21 whose employment may be terminated by the City with or without cause; and (2) there
22 is no expressed or implied promise made to Employee for any form of continued
23 employment. This Agreement is the sole and exclusive basis for an employment
24 relationship between Employee and City.
25 (d) Consideration of termination of the Employee by the City Council, as provided
26 in Paragraph 3(b), shall not occur within the one hundred eighty (180) day period
27 immediately following a general or special election at which a Councilmember is
1 (e) The decision to terminate shall be made in closed session and confirmed in a
2 public meeting. In recognition of Employee's professional status and integrity,
3 Employee and the City Council shall prepare a joint public statement to be made by the
4 City Council at the public meeting when termination is confirmed.
5 (f) Employee may choose to resign her office instead of being terminated if an
6 action by the City Council to terminate has been made in closed session. In such an
7 event, the public announcement, as provided for in Paragraph 3(e) above, will note that
8 Employee has resigned, and Paragraph 4 will remain otherwise applicable.
9 4. Severance Pay.
10 (a) If Employee is terminated by the City Council while still willing and able to
11 perform the duties of CITY MANAGER, or should Employee choose to resign instead
12 of termination pursuant to Paragraph 3(e) above, City agrees to pay Employee a cash
13 payment equal to nine (9) months' aggregate salary and the City's cost of nine (9)
14 months' health, dental, life, and long term disability benefits. Said cash payments may
15 be paid, at the option of the Employee, in: (1) lump sum upon date of termination; (2)
16 lump sum on January 1 of the calendar year following termination; or (3) nine (9) equal
17 monthly installments. Said payment(s) shall be subject to required withholdings. Such
18 payment shall release City from any further obligations under this Agreement (see
19 Attachment A).
20 (b) To be eligible for such severance pay, employee shall fulfill all of her
21 obligations under this Agreement, and shall sign an acknowledgment and release of
22 claims against the City. Such acknowledgment and release appears as Attachment A to
23 this Agreement.
24 (c) Any severance pay received by Employee from City shall be fully reimbursed
25 to City if Employee is convicted of a crime involving an abuse by Employee of her
26 office or position.
27 (d) Notwithstanding the provisions of Paragraph 4(a)-(c), the Employee may be
28 terminated for Cause. As used in this Paragraph, "Cause" shall mean any or all of the
2 (1) Employee's death;
3 (2) Willful destruction, theft, or misappropriation of City property;
4 (3) Continued abuse of non-prescription and/or prescription drugs or
5 alcohol that materially affects the performance of the Employee's
7 (4) Repeated and protracted unexcused absences from the Employee's
8 office and duties;
9 (5) Conviction of a crime involving moral turpitude or any felony,
10 provided that Employee may be placed on administrative leave without
11 pay should she be charged with a felony;
12 (6) Employee is determined by a court of competent jurisdiction to be
13 liable for damages for dishonesty or fraud;
14 (7) Willful violation of any conflict of interest laws or regulations;
15 (8) Fraud or dishonesty in securing this appointment;
16 (9) Willful violation of State or Federal discrimination laws concerning
17 race, religious creed, color, national origin, ancestry, sexual orientation,
18 physical or mental disability, marital status, sex or age concerning
19 either members of the general public or any City employee(s);
20 (10) Willful or unlawful retaliation against any other City official or
21 employee or member of the general public who in good faith reports,
22 discloses, divulges, or otherwise brings to the attention of any
23 appropriate authority any facts or information relative to actual or
24 suspected violations of any law occurring on the job or directly related
25 thereto; or
26 (11) Refusal to comply with lawful performance goals, standards, directions,
27 requirements or criteria established by a majority of the City Council
28 acting at a lawfully convened closed or open session of the City
2 (e) In the event that the Employee is terminated for Cause, the City shall have no
3 obligation to (i) provide her more than twenty-four (24) hour notice of same or (ii) pay
4 the Employee any severance payments of any sort. Upon termination pursuant to
5 Paragraph 4(d), Employee shall be compensated in a lump sum for any benefits
6 accrued to the date of termination to the extent that such benefits are compensable
7 under this Agreement.
8 (f) In the event the City terminates the Employee for Cause, the City and the
9 Employee agree that neither party shall make any written or oral statements to
10 members of the public or the press concerning the Employee's termination except in the
11 form of a joint press release which is mutually agreeable to both parties. The joint press
12 release shall not contain any text or information that would be disparaging to either
13 party; provided, however, that either party may verbally repeat the substance of any
14 such press release in response to inquiries by members of the press or public. This
15 Paragraph shall not apply to statements made in the prosecution or defense of any
16 litigation arising out of this Agreement.
17 5. Conditions. Employee further represents, acknowledges, and warrants that:
18 (a) Her execution of this Agreement extinguishes any right, claim, or entitlement
19 she would have had to any other position with City, including any right or entitlement
20 under the City's Civil Service Rules;
21 (b) Employee's employment rights are expressly and specifically limited to those
22 specified herein;
23 (c) Employee has no entitlement to any other position within the City; and
24 (d) The position of CITY MANAGER is exempt from the provisions and
25 protections of the City's Civil Service System, that such position may be eliminated at
26 any time, that such employment is expressly "at will", serving at the pleasure of City,
27 and that Employee is terminable with or without cause, as is otherwise provided in this
1 6. Compensation.
2 (a) City agrees to pay Employee during the 2012/2013 Fiscal Year at the
3 annualized base salary of $226,344 for her services, payable at the same time as other
4 employees of the City are paid and subject to customary withholding. Employee is not
5 eligible for a salary increase during the 2012/2013 Fiscal Year.
6 (b) Thereafter, increases may periodically be granted by the City Council in
7 accordance with City compensation policies and in the City Council’s sole discretion.
8 Pay increases for the CITY MANAGER are not automatic, and are at the discretion of
9 the City Council.
10 (c) City shall contribute $15,000 annually to Employee’s 457 Deferred
11 Compensation Account. Contributions will be distributed on a bi-weekly basis in
12 Employee’s paychecks.
13 7. Benefits. Except as modified by Paragraph 6 and Attachment B, City shall also
14 provide Employee the same benefits as provided to other executive management employees, as a
15 group, and as they may be amended, increased, or decreased. The benefits to be provided are listed in
16 Attachment B, attached hereto, and incorporated herein by reference. These are the sole and exclusive
17 benefits to be provided to Employee. Notwithstanding the foregoing, however, the employee will
18 receive general leave benefits described in Paragraph 8, which are granted in lieu of vacation and sick
19 leave benefits provided to executive management employees.
20 8. Leave Benefits.
21 (a) Employee shall accrue thirty-five (35) days of paid time off/general leave per
22 fiscal year, which shall be credited on July 1 of each year. Such general leave shall be
23 used for vacation, other personal leave, medical appointments, disability/illness, family
24 emergency, and/or care of family members. As used in this Paragraph 8, the terms
25 “paid time off” or “general leave” do not include administrative leave, which is
26 separately addressed in Attachment B to this Agreement.
27 (b) The employee has the option to cash out up to fifteen (15) days of paid time off
28 per fiscal year.
1 (c) Employee shall not be subject to any cap with respect to accrual of the paid
2 time off/general leave referred to in subsection (a) of this Paragraph 8.
3 9. Performance Evaluation. The City Council shall review and evaluate the
4 performance of Employee each year and set goals and objectives for the ensuing year which shall be
5 memorialized in an Achievement Plan. Such review and evaluation shall be in accordance with
6 specific criteria developed in the Achievement Plan in consultation with Employee and the City
7 Council and may include involvement by an outside facilitator at the request of either party.
8 Employee shall be responsible for placing such annual evaluation and goal setting on the City Council
9 meeting agenda.
10 10. Automobile Mileage Reimbursement. Employee’s duties require that she have
11 continuously available transportation for business or related purposes. The City acknowledges that
12 the Employee shall use her personal vehicle, and City shall provide Employee mileage reimbursement
13 in the amount allowed under the Internal Revenue Code.
14 11. Ethical Commitments. The parties acknowledge that the Employee is a member of
15 the International City/County Management Association (ICMA). The parties mutually desire that the
16 Employee be subject to and comply with the ICMA Code of Ethics, a copy of which is attached hereto
17 and incorporated herein as Attachment C. The Employee commits to comply with the ICMA Code of
18 Ethics. Specifically, Employee shall not endorse political candidates, make financial contributions,
19 sign or circulate petitions, or participate in fund-raising activities for individuals seeking or holding
20 elected office, nor seek or accept any personal enrichment or profit derived from confidential
21 information or misuse of public time.
22 The City and the City Council agree that neither the City Council nor any of its members will
23 give the Employee any order, direction, or request that would require the Employee to violate the
24 ICMA Code of Ethics. Specifically, neither the governing body nor any individual member thereof
25 shall request Employee to endorse any political candidate, make any financial contribution, sign or
26 circulate any petition or participate in any fund-raising activity for individuals seeking or holding
27 elected officer, nor to handle any matter of personnel on a basis other than fairness, impartiality and
1 12. Assignment. The City Council is entering into this Agreement in consideration of the
2 personal rendition of the services required by the CITY MANAGER, and Employee shall not assign
3 any of the duties, responsibilities, or obligations of this Agreement except with the express written
4 consent of the City.
5 13. Exclusive Procedure for Redressing Disputes. The rights and remedies provided in
6 this Paragraph are the exclusive means for addressing disputes involving the employment of
7 VALERIE BARONE, including release from employment. Employee specifically recognizes and
8 waives her right to initiate judicial and administrative claims against the City, with the exception of
9 workers' compensation claims. Should Employee believe that her release from employment or other
10 adverse employment action is prohibited by federal or state law, any such claim shall be resolved
11 through final and binding arbitration, and shall not be subject to any court or administrative complaint,
12 process, or cause of action.
13 In the event of such dispute, the parties shall select an arbitrator to hear the dispute. Failing
14 mutual agreement of an arbitrator, the parties shall request a list of qualified labor arbitrators from the
15 American Arbitration Association and shall strike names until only one remains. Such individual
16 shall serve as the arbitrator. The arbitration shall be conducted in accordance with California Code of
17 Civil Procedure, §1280 et seq. and the decision of the arbitrator shall be final and binding. The parties
18 will have the right to discovery in accordance with Section 1283.05 of the California Code of Civil
20 If the arbitrator concludes that the City has violated Employee's rights, the arbitrator may not
21 require reinstatement, nor may the arbitrator confer attorney's fees or punitive damages. The
22 maximum remedy available shall be limited to the amount listed herein in reference to severance pay
23 (Paragraph 4). The arbitrator shall have no authority to add to, subtract from, or to modify the terms
24 of this Agreement.
25 14. Amendment. This Agreement may be amended, modified, or changed by the parties
26 provided that said amendment, modification, or change is in writing and approved by both parties.
1 15. Notices. All notices required herein shall be sent first class mail to the parties as
3 To CITY: City Council
c/o Mayor Daniel Helix (or
4 successor Mayor)
City of Concord
1950 Parkside Drive
6 Concord, CA 94519-2578
7 To EMPLOYEE: Valerie Barone
8 City of Concord
1950 Parkside Drive
Concord, CA 94519-2578
11 Notices shall be deemed effectively served upon deposit in the United States mail.
12 16. Authority to Work in the United States. Employee represents, under penalty of
13 perjury, that she is authorized to work in the United States. In accordance with §2764A (8 USC 1324)
14 of the Immigration Reform and Control Act of 1986 before this Agreement can become effective,
15 Employee must provide documentary evidence to City consistent with the Act, that she is legally
16 entitled to work in the United States, and must execute the verification required by the Act.
17 17. Entire Agreement. This Agreement contains the entire agreement between the parties
18 hereto. No promise, representation, warranty, or covenant not included in this Agreement has been or
19 is relied on by any party hereto. This Agreement may only be amended by written instrument signed
20 by Employee and the City Council.
21 18. Severability. If any provision of this Agreement is invalid or unenforceable, it shall be
22 considered deleted here from and the remainder of the provision and of this Agreement shall be
23 unaffected and shall continue in full force and effect.
24 19. Headings and Captions. The headings and captions appearing in this Agreement are
25 inserted only as a matter of convenience and in no way limit or affect the substantive terms of the
1 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
2 written above.
5 Valerie Barone
CITY OF CONCORD, a municipal corporation
9 Daniel C. Helix, Mayor
Tim Grayson, Vice Mayor
14 Edi Birsan, Councilmember
Laura M. Hoffmeister, Councilmember
19 Ron Leone, Councilmember
Mary Rae Lehman
24 City Clerk
APPROVED AS TO CONTENT:
28 Director of Human Resources
1 APPROVED AS TO FORM:
3 Mark S. Coon
5 FINANCE DIRECTOR’S CERTIFICATION:
7 I CERTIFY THAT FUNDS ARE AVAILABLE
TO PAY THIS CONTRACT DURING FISCAL
8 YEAR 2012/13
10 Interim Finance Director
1 Attachment A
2 Acknowledgment and Release
3 This is to confirm that the City of Concord (sometimes “City”) has promised to pay me
4 severance in the amount of $____________________payable [in one lump sum, reduced by required
5 withholdings, on or before ______________________][in nine (9) equal monthly installments,
6 commencing on ________________with the last installment being due and payable on
7 _________________________]. Subject to the provisions of Paragraph 3, below, this
8 Acknowledgment and Release shall be effective on the date of execution shown below my signature;
9 provided, however, that if [said lump sum is not paid to me] [all of the said installments are not paid
10 to me] then this Acknowledgment and Release shall be deemed null and void and of no effect, ab
12 1. I acknowledge that, in accepting such severance pay, I fully and forever release,
13 discharge and covenant not to sue or otherwise institute or in any way actively participate in, or
14 voluntarily assist in the prosecution of, any legal or administrative proceedings or inquiries against the
15 City of Concord, including without limitation, the City of Concord’s departments, commissions,
16 agencies, boards, subsidiaries, related entities, and current or former officers, directors, elected and
17 appointed officials, agents, employees, or assigns (hereinafter collectively referred to as “City”), with
18 respect to any matter arising out of, connected with, or related in any way to my employment with the
20 2. This is a complete general release that will forever bar me and my heirs, executors,
21 administrators, assignees, and successors from pursuing any claims against the City relating to my
22 employment or the termination thereof. I understand and agree that I am waiving my rights I may
23 have had, now have, or in the future may have, to pursue any and all remedies available to me, under
24 any cause of action arising directly or indirectly from my employment with the City, including
25 without limitation, claims of wrongful discharge; constructive termination, emotional distress;
26 defamation, retaliation, breach of contract; breach of covenant of good faith and fair dealing; violation
27 of the provisions of the California Labor Code; claims to unemployment benefits and compensation;
28 violation of the City’s ordinances, regulations, resolutions, personnel rules and other City enactments;
1 the Meyers-Milias Brown Act; violations of any memoranda of understanding covering me; and
2 claims under Title VII of the 1964 Civil Rights Act; the Civil Rights Act of 1991; the California Fair
3 Employment and Housing Act; the Americans With Disabilities Act and comparable state statutes and
4 regulations; the Family Medical Leave Act and comparable state statutes and regulations; any and all
5 state and federal whistle-blower statutes and/or freedom of speech causes of action; the California and
6 United States Constitution; the Equal Pay Act of 1963; the Age Discrimination in Employment Act of
7 1967 (“ADEA”); the Older Workers Benefit Protection Act; the Civil Rights Act of 1866; and any
8 other laws and regulations relating to employment and/or discrimination.
9 3. With regard to my waiver of rights under the ADEA and Older Workers'
10 Benefit Protection Act ("OWBPA") only (see 29 CFR Section 1625.22), such waiver shall not be
11 deemed to waive rights or claims that may arise after I execute this Acknowledgment and Release
12 (“Release”). I am waiving my rights to sue the City on any basis related to my age. I have been
13 advised and have had an opportunity to consult with an attorney prior to signing this Release. I may
14 revoke my waiver under the ADEA and OWBPA within seven (7) days following my execution of
15 this Release. Such waiver will not become effective or enforceable until such revocation period has
16 passed. I and the City acknowledge and recognize that under 29 U.S.C. section 626 and 29 Code Fed.
17 Regs. Section 1625.22, I am entitled to have twenty one (21) days within which to review and
18 consider this Release. However, under 29 Code Fed. Regs. Section 1625.22(e)(6), the City and I can
19 agree to shorten this review period, and by this Release the City and I hereby agree to shorten said
20 review period to seven (7) days. The City and I agree to shorten the review period because, among
21 other reasons, I wish to expedite receipt of the consideration promised to me by the City so as to
22 stabilize my transition from employment with the City to the pursuit of and securing other
23 opportunities. Consequently, I have been given seven (7) days to consider this particular waiver and
24 after reviewing and considering same, and upon the advice of my attorney, have voluntarily agreed to
25 execute this Release.
26 4. I understand and expressly agree that this release extends to all claims of every nature
27 and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or
28 attributed to my employment with the City, and that any and all rights under Section 1542 of the
1 California Civil Code or any analogous state law or federal law or regulation are hereby expressly
2 waived. Section 1542 of the Civil Code of the State of California reads as follows:
3 A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
4 executing the release, which if known to him or her must have
materially affected his or her settlement with the debtor.
6 5. The City and I agree and acknowledge that this Agreement constitutes the entire
7 understanding and agreement of the parties and is the sole and entire agreement on this matter. This
8 Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and no
9 promises, inducements or agreements, other than those expressed herein, have been made in
10 connection with this Agreement. The City and I further agree and acknowledge that this Agreement
11 may not be modified except through a writing executed by the parties.
12 I have had the opportunity to consult with legal counsel relative to this Acknowledgment and
13 Release. I have signed this Acknowledgment and Release voluntarily and willingly.
15 Valerie Barone
1 Attachment B
2 Benefit Package
Standard Executive/Management Benefits
4 1. Health Insurance or Cash Waiver
5 2. Dental Insurance
6 3. Life Insurance
7 4. Short and Long Term Disability
8 5. Holidays
9 6. Administrative Leave – 80 hours per fiscal year, non-accrual
10 7. Flexible Benefits Plan – Suspended until further City Council action
11 8. PERS Retirement – 2.5% at 55 Plan
12 9. Social Security
13 10. Employee Assistance Program
14 11. Tuition Refund
15 12. 3% Employer Contribution to 401(k) – Suspended until further City Council action
16 13. Deferred Compensation Plan (Employee may make contributions to an individual 401k
17 or 457 Plan in addition to the contribution by City, up to maximum allowed by law).
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