4A by BayAreaNewsGroup

VIEWS: 2 PAGES: 20

									Intentionally left blank
                                                                                          Attachment No.1


 1                                     EMPLOYMENT AGREEMENT
                                           CITY MANAGER
 2
                                                 Exempt Service
 3

 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
 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

28                  elected.

                                                        2
 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

                                               3
 1   following:

 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

 6                 duties;

 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

                                        4
 1                       Council.

 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

28        Agreement.

                                               5
 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.

                                                        6
 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

28   merit.

                                                          7
 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
19   Procedure.

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.

27   //

28   //

                                                         8
 1          15.     Notices. All notices required herein shall be sent first class mail to the parties as
 2   follows:

 3                                      To    CITY:                          City Council
                                                                             c/o Mayor Daniel Helix (or
 4                                                                           successor Mayor)
                                                                             City of Concord
 5
                                                                             1950 Parkside Drive
 6                                                                           Concord, CA 94519-2578

 7                                      To    EMPLOYEE:                      Valerie Barone
                                                                             City Manager
 8                                                                           City of Concord
                                                                             1950 Parkside Drive
 9
                                                                             Concord, CA 94519-2578
10

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
26   Agreement.
27   //
28   //

                                                         9
 1          IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
 2   written above.

 3

 4                                        By:

 5                                              Valerie Barone
                                                City Manager
 6
                                          CITY OF CONCORD, a municipal corporation
 7
                                          By:
 8

 9                                              Daniel C. Helix, Mayor

10

11
                                                Tim Grayson, Vice Mayor
12

13

14                                              Edi Birsan, Councilmember

15

16
                                                Laura M. Hoffmeister, Councilmember
17

18
19                                              Ron Leone, Councilmember

20

21
                                          ATTEST:
22
                                          By:
23
                                                     Mary Rae Lehman
24                                                   City Clerk

25
      APPROVED AS TO CONTENT:
26
      By:
27
            Kathy Ito
28          Director of Human Resources


                                                10
 1    APPROVED AS TO FORM:

 2    By:

 3          Mark S. Coon
            City Attorney
 4

 5   FINANCE DIRECTOR’S CERTIFICATION:
 6

 7   I CERTIFY THAT FUNDS ARE AVAILABLE
     TO PAY THIS CONTRACT DURING FISCAL
 8   YEAR 2012/13
 9                              _________
     William Zenoni
10   Interim Finance Director
11

12

13

14

15

16

17

18
19

20

21

22

23

24

25

26

27

28

                                            11
 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

11   initio.

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

19   City.

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;

                                                        12
 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

                                                       13
 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.
 5

 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.

14
                                                 By:
15                                                       Valerie Barone

16

17
                                                 Date executed:
18
19

20

21

22

23

24

25

26

27

28

                                                       14
 1                                                                                Attachment B

 2                                 Benefit Package
                        Standard Executive/Management Benefits
 3

 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).

18
19

20

21

22

23

24

25

26

27

28

                                             15
Intentionally left blank

								
To top