HomeMy WebLinkAboutCM City Manager Employment Agreement 2020____________________________________________________________________________________
FOR CITY CLERK ONLY
File No.: 4-3-1046
Council Meeting: 01/22/2016
Disposition: Resolution 14758
Agenda Item No: 4.f
Meeting Date: January 21, 2020
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: City Manager
Prepared by: Robert Epstein, City Attorney
Lisa Goldfien, Asst. City Attorney
City Manager Approval: ______________
TOPIC: REVISED EMPLOYMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND
CITY MANAGER
SUBJECT: RESOLUTION APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A
REVISED EMPLOYMENT AGREEMENT BETWEEN THE CITY AND CITY MANAGER
JAMES M. SCHUTZ TO AMEND AND CLARIFY LANGUAGE, BUT WITH NO
COMPENSATION INCREASE
RECOMMENDATION:
Adopt the resolution as presented.
BACKGROUND:
The current City Manager, Jim Schutz, was appointed to the position on August 1, 2015. At the time of
appointment an employment agreement (“Employment Agreement”) defining the terms of his
employment as City Manager with the City of San Rafael was also adopted by City Council. The
Employment Agreement provides in section 8 that “This Agreement may be amended at any time by
mutual written agreement of the City and the City Manager.”
The Employment Agreement was amended in December 2017 to clarify certain existing provisions and
to alter the term of the contract. Following the City Manager’s annual performance review held in October
2019, the City Council and City Manager seek to amend the Agreement to make minor clarifying changes.
ANALYSIS:
The City Council met with the City Manager in October 2019 for the purpose of conducting his annual
performance review. In January 2020, the Mayor and Vice Mayor met with the City Manager to review
the performance evaluation. The City Council’s evaluation of the City Manager was very positive. At that
time, amendments to the Employment Agreement were discussed including provisions that would make
the contract more consistent with existing procedures and reflect best practices for city management
employment contracts. In addition, there was a request to clarify certain retirement benefits that were
included in the original Agreement. This report provides for the approval of a revised Employment
Agreement that resulted from those discussions. A redlined copy of the amended Employment
Agreement showing the proposed changes is attached as Attachment 2 to this report.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
As proposed in the attached revised Employment Agreement, the revised agreement would take effect
upon adoption by the City Council. The terms of employment are largely unchanged from the terms of
the original Agreement, but additional language has been included in some provisions to clarify and more
accurately reflect the intention of the City Council and City Manager. All terms remain the same except
for the following:
• Commitments and Understandings: The City Manager’s duties and authority in Section
4.A(1)(c)(iv) have been amended by adding the clarifying language underlined below:
(iv) Endeavor to implement changes that the City Manager believes will result in
greater efficiency, economy, or improved public service in the administration of
City affairs. This includes modernizing City services and employing a
community-centered approach to service design.
• Commitments and Understandings: The City’s commitments in Section 4.B(9) have been
amended to add the clarifying language underlined below:
(9) The City Council agrees none of its individual members will order the appointment or
removal of any person to any office or employment under the supervision and control of
the City Manager. Notwithstanding, the City Council will work with the City Manager to
assess, interview, and select the positions of Police Chief and Fire Chief.
• Pension/Benefits: The City Manager’s pension and retiree health insurance benefits in Section
6.A(2) have been amended as shown by strike-out/underline below to more clearly and accurately
reflect the benefit level that was in place at the City Manager’s date of hire with the City of San
Rafael:
(2) Unless required by changes in State or Federal law, should City Manager retire from City,
his future MCERA pension and retiree health insurance benefits (“retirement rights and
benefits”) shall be guaranteed and vested at the same benefit level as they were at thehis
original date of hire which was January 2, 2007. this Agreement on March 16, 2015 and
as described in Section 3.A.2. “Health Insurance for Retirees” of Resolution No. 13741
dated June 16, 2014, and attached as Exhibit A, which section is hereby adopted and
incorporated by reference herein For purposes of retiree health insurance, the benefit at
that time covered full retiree medical premiums including all Medicare premiums without
limitations. The parties expressly agree and confirm that the retirement rights and benefits
in place at the City Manager’s date of hire have been and continue to be a material part
of the consideration given for City Manager’s acceptance of employment with the City
conferred in that section shall apply to the City Manager.
• Separation: The provisions regarding the City Manager’s separation from the City and severance
pay in Section 7.C. have been amended to include the additional provision underlined below,
which is a standard protection in City Manager contracts:
C) Severance Pay
(1) In the event that the City Manager is terminated by the City Council during such time that
the City Manager is willing and able to perform his duties under this Agreement, then the
City agrees to pay the City Manager a lump sum cash payment equal to six months' base
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
salary and benefits. It is the intention of the parties that this paragraph complies with the
requirements of Government Code Section 53260 et. seq. In the event of any conflict
between this provision and those code sections, the terms of those code sections shall
govern the contractual relationship between the employer and employee.
(2) In addition, the City shall extend to the City Manager the right to continue health insurance
as may be required by and pursuant to the terms and conditions of the Consolidated
Omnibus Budget Reconciliation Act Of 1986 (COBRA).
(3) All payments required under Section 7.C (I), and (2), are subject to and shall be
interpreted to comply with the limitations set forth in Government Code Section 53260.
(4) In no event may City Manager be terminated within ninety (90) days before or after any
municipal election for the selection or recall of one or more members of the City Council.
FISCAL IMPACT:
There is no immediate fiscal impact to this decision as the current budget reflects the cost of total
compensation reflected in the Employment Agreement. There is no increase in total compensation from
the current City Manager's agreement.
OPTIONS:
The City Council has the following options to consider on this matter:
1. Adopt resolution as presented.
2. Adopt resolution with modifications.
3. Direct staff to return with more information.
4. Take no action.
RECOMMENDED ACTION:
Adopt resolution.
ATTACHMENTS:
1. Resolution with Exhibit A: Proposed revised Employment Agreement with James M. Schutz
2. Proposed revised Employment Agreement (redlined)
RESOLUTION NO. 14758
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A REVISED
EMPLOYMENT AGREEMENT BETWEEN THE CITY AND CITY MANAGER JAMES M.
SCHUTZ TO AMEND AND CLARIFY LANGUAGE, BUT WITH NO COMPENSATION
INCREASE
WHEREAS, James M. Schutz has been employed by the City of San Rafael for thirteen
years, first as Assistant City Manager and as City Manager during the past five years; and
WHEREAS, at its regular meeting on March 16, 2015, the City Council appointed James
M. Schutz as City Manager pursuant to an employment agreement executed on that date (the
"Employment Agreement"); and
WHEREAS, at its regular meeting on December 18, 2017, the City Council approved an
amendment to the Employment Agreement to clarify certain existing terms and to provide for a
rolling three-year contract term; and
WHEREAS, the City Council desires to amend the employment agreement between the
City and James M. Schutz as the City Manager for the City of San Rafael as set forth in Exhibit A
attached hereto and incorporated herein by reference; and
WHEREAS, the revised terms in Exhibit A clarify and more accurately reflect the intention
of the City Council and City Manager regarding certain existing terms of the Employment
Agreement; and
WHEREAS, there are no substantive changes to the City Manager’s overall compensation
or to any retirement benefits provided for in the original Employment Agreement; and
WHEREAS, James M. Schutz has provided exemplary service to the City and continues
to be qualified and willing to perform the duties and services of the position of City Manager in
San Rafael.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Rafael
hereby approves and directs the Mayor to execute, a revised Employment Agreement between
the City and James M. Schutz in the form attached hereto as Exhibit A and incorporated herein
by reference, to take effect immediately upon execution.
I, LINDSAY LARA, City Clerk of the City of San Rafael, hereby certify that the foregoing
resolution was duly and regularly introduced and adopted at a regular meeting of the City Council
of said City held on the 21st day of January 2020, by the following vote, to wit:
AYES: Councilmembers: Bushey, Colin, Gamblin & Mayor Phillips
NOES: Councilmembers: None
ABSENT: Councilmembers: McCullough
LINDSAY LARA, City Clerk
CITY MANAGER EMPLOYMENT AGREEMENT
Between the City of San Rafael and
James M. Schutz
March 16, 2015 (Effective August 1, 2015)
(Revised as of December 18, 2017)
(Revised January 21, 2020)
TABLE OF CONTENTS
1) PARTIES, DATES AND OTHER
RECITALS......................................................................................................................... 3
2) EMPLOYMENT.................................................................................................................. 3
3) TERM..................................................................................................................................3
4) COMMITMENTS AND UNDERSTANDINGS......................................................................3
A) CITY MANAGER'S COMMITMENTS........................................................................... 3
(1) Duties & Authority................................................................................................. 3
(2) Hours of Work........................................................................................................ 4
(3) Disability or Inability to Perform........................................................................... 5
B) CITY COMMITMENTS.................................................................................................. 5
C) MUTUAL COMMITMENTS........................................................................................... 6
(1) Performance Evaluation....................................................................................... 6
5) COMPENSATION.............................................................................................................. 7
A) COMPENSATION REQUIRED EMPLOYER COSTS .................................................. 7
(1) Base Salary............................................................................................................ 7
(2) Required Employer Costs.................................................................................... 7
B) BENEFITS.................................................................................................... 7
(1) Holidays.................................................................................................................. 7
(2) Leave Allowance................................................................................................ 7
(3) Automobile........................................................................................................... 8
(4) Benefits that Accrue to Other Employees.......................................................... 8
6) SECURITY.......................................................................................................................8
A) PENSIONS - (MCERA)............................................................................................... 8
B) Deferred Compensation........................................................................................... 8
C) INSURANCE............................................................................................................... 9
(1) Disability Insurance............................................................................................ 9
(2) Life Insurance...................................................................................................... 9
7) SEPARATION................................................................................................................... 9
A) RESIGNATION RETIREMENT................................................................................... 9
B) TERMINATION& REMOVAL...................................................................................... 9
C) SEVERANCE PAY....................................................................................................... 9
D) INVOLUNTARY RESIGNATION..................................................................................10
E) SEPARATION FOR CAUSE....................................................................................... 10
F) PAYMENT OF UNSUED LEAVE BALANCE..............................................................10
8) MISCELLANEOUS PROVISIONS.................................................................................... 10
A) AMENDMENTS.......................................................................................................... 10
B) CONFLICT OF INTEREST...........................................................................................10
C) INDEMNIFICATION..................................................................................................... 11
D) SEVERABILITY........................................................................................................... 12
E) LAWS AFFECTING TITLE......................................................................................... 12
F) JURISDICTION AND VENUE..................................................................................... 12
G) ENTIRE AGREEMENT................................................................................................ 12
H) NOTICE....................................................................................................................... 12
EXECUTION.....................................................................................................................13
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CITY MANAGER EMPLOYMENT AGREEMENT
Between the
City of San Rafael
and
James M. Schutz
1) Parties, Date, and Other Recitals - This Agreement is entered into as of March 16,
2015, and will take effect beginning August 1, 2015, by and between the City of San
Rafael a municipal corporation ("the City"), and James M. Schutz ("Schutz" or "City
Manager"). The City and the City Manager are sometimes individually referred to as a
"Party" and collectively as "Parties."
A) The City requires the services of a City Manager.
B) The City Manager has the necessary education, experience, skills, and expertise to
serve as the City's City Manager.
C) The City Council of the City desires to employ the City Manager to serve as the
City Manager of City.
D) The Parties desire to execute this Agreement pursuant to the authority of and
subject to the provisions of Government Code Section 53260 et seq.
E) In consideration of these Recitals and the performance by the Parties of the
promises, covenants, and conditions herein contained, the Parties agree to the
terms set forth in this Agreement.
2) Employment - The City hereby employs Schutz as its City Manager, and Schutz
hereby accepts such employment on the terms and conditions that are recited herein.
3) Term -
The Term of the agreement shall be for a period of three years commencing on
August 1, 2017 and continuing July 31, 2020 This agreement shall be effective for a
rolling three (3) year term, automatically extending for one (1) additional year
effective July 31 of each year, unless either party provides notice to the other of its
intent to terminate this agreement on or before May 31 of any year. If such notice is
provided, the term of this Agreement shall expire at the end of the then -current three
(3) year term without any additional extensions and without the need for any
additional notice, unless it is subsequently terminated at an earlier date in
accordance with Section 7 of this Agreement.
4) Commitments and Understandings
A) City Manager's Commitments
(1) Duties & Authority
(a) The City Manager shall be the chief executive officer of the City and be
responsible to the City Council for the proper administration of all affairs of
the City.
(b) The City Manager shall perform all of the duties of the City Manager as set
forth in Section 2.08 of the San Rafael Municipal Code, applicable provisions
of the California Government Code, and City policies and procedures
approved by the City Council, as may be provided from time to time. The
City Council has designated and may also designate the City Manager as
the chief executive of other City -related legal entities. Such other legal
entities include financing authorities and joint powers authorities.
(c) The City Manager shall administer and enforce policies established by the City
Council and promulgate rules and regulations as necessary to implement
such policies. To accomplish this, the City Manager shall be required to:
Attend all meetings of the City Council, unless excused by the Mayor.
(ii) Review all agenda documents before preparing the agenda for all
regular or special meetings of the City Council.
(iii) Direct the work of all appointive City officers and departments.
(iv) Endeavor to implement changes that the City Manager believes will
result in greater efficiency, economy, or improved public service in the
administration of City affairs. This includes modernizing City services
and employing a community -centered approach to service design.
(v) From time to time, recommend to the City Council adoption of such
measures as the City Manager may deem necessary or expedient for
the health, safety, or welfare of the community, or for the improvement
of administrative services. The City Manager shall conduct research in
administrative practices in order to bring about greater efficiency and
economy in City government, and develop and recommend to the City
Council long-range plans to improve City operations and prepare for
future City growth and development.
(vi) From time to time, and based on the City Manager's best judgment,
propose to the City Council the consolidation or combination of offices,
positions, departments, or units under the City Manager's jurisdiction.
The City Manager may be the head of one or more City departments.
(vii) Provide management training and develop leadership qualities among
department heads and staff as necessary to build a City management
team that can plan for and meet future challenges.
(viii) Exercise control of City government in emergencies as authorized by
the Municipal code and California law.
(2) Hours of Work
(a) The City Manager is an exempt employee. The City Manager is expected to
engage in those hours of work that are necessary to fulfill the obligations of the
position. The position does not have set hours of work and the City Manager is
expected to be available, as necessary, at all times.
(b) It is recognized that the City Manager must devote substantial time to the
business of the City, outside of the City's customary business hours, and to that
end the City Manager's schedule of work each day and week shall vary in
accordance with the work required to be performed. The City Manager shall
spend sufficient hours on site to perform his duties; however, the City
4
Manager has discretion over the City Manager's work schedule and work
location.
(c) The City Manager shall not spend more than 12 hours per month in teaching,
consulting, speaking, or other non -City connected business for which
compensation is paid without the express prior written consent of the City
Council.
(3) Disability or Inability to Perform
(a) In the event the City Manager becomes mentally or physically incapable of
performing the City Manager's functions and duties taking into account
reasonable accommodation, and it reasonably appears such incapacity will
last for more than six months, the City Council may terminate the City
Manager. If the City Council does elect to terminate the City Manager due to
incapacity, the City Manager shall receive all severance benefits provided in
Section 7.0 below.
B) City Commitments
(1) The City shall provide the City Manager with the compensation, incentives, and
benefits specified in this Agreement, as from time to time may be amended with
written consent of both parties.
(2) The City shall provide the City Manager with a private office, administrative
support, staff, office equipment, supplies, automobile allowance, and all other
facilities and services reasonably necessary for the performance of his duties.
(3) The City shall pay for (or provide the City Manager reimbursement for) all actual
business expenses. The City shall provide the City Manager a City credit card to
charge appropriate and lawful City business expenses.
(4) The City agrees to pay the professional dues, subscriptions, travel, and
subsistence expenses on behalf of the City Manager which are necessary for
the City Manager's continuation and full participation in national, regional, state,
or local associations and organizations necessary and desirable for the City
Manager's continued professional growth and advancement. Said
reimbursement includes governmental groups and committees upon which the
City Manager serves or may serve as a member. Said expenses may also be
reimbursed or paid for on behalf of the City Manager for short courses, institutes
and seminars that are necessary for the professional development of the City
Manager.
(5) Given the importance of technological tools to the effective and efficient conduct
of the City's business, the City shall provide computer, laptop computer, printer,
high-speed internet access, cellular phone, iPad or subsequent type devices,
electronic calendar, fax, copy machine and similar devices to the City Manager
at the City's expense, both at the City Manager's office and at the City Manager's
residence as needed to carry out the duties of the position. All such equipment
shall remain the property of the City.
(6) The City Council sets policy for the governance and administration of the City,
and it implements its policies through the City Manager.
(7) The City Council recognizes that to meet the challenges facing the City it must
exercise decisive policy leadership. As one step in carrying out this leadership
responsibility, the City Council commits to spending time each year outside of
regular City Council meetings to work with the City Manager and staff on setting
goals and priorities for the City government, and to work on issues that may be
inhibiting the maximal achievement of City goals.
(8) Except for the purpose of inquiry, the City Council and its members shall deal
with all subordinate City employees, officers, contractors, and consultants solely
through the City Manager or the City Manager's designee, and neither the City
Council nor any member thereof shall give orders to any subordinate of the City
Manager, either publicly or privately.
(9) The City Council agrees none of its individual members will order the appointment
or removal of any person to any office or employment under the supervision and
control of the City Manager. Notwithstanding, the City Council will work with the City
Manager to assess, interview, and select the positions of Police Chief and Fire
Chief.
(10) The City Council agrees that any criticism of a City staff member shall be done
privately through the City Manager.
(11) Neither the City Council nor any of its members shall interfere with the execution of
the powers and duties of the City Manager. The City Manager shall take orders and
instructions from the City Council only when it is sitting as a body in a lawfully held
meeting.
C) Mutual Commitments
(1) Performance Evaluation
(a) Annual performance evaluations are an important way for the City Council and
City Manager to ensure effective communications about expectations and
performance.
(b) The City Council recognizes that for the City Manager to respond to its needs
and to grow in the performance of the City Manager's job, the City Manager
needs to be advised how the City Council members evaluate the City
Manager's performance.
(c) To assure that the City Manager receives this information, the City Council
shall conduct an evaluation of the City Manager's performance at least once
each year and during the first year the City Council shall evaluate Schutz
after six months. The City Council and the City Manager agree that
performance evaluations, for the purpose of mid -course corrections, may
occur quarterly or several times during each calendar year. In addition, the
City Council may choose to establish a sub -committee to meet with the City
Manager periodically over the course of each year to measure progress on
stated goals and priorities. The annual evaluation shall occur between June
and July of each year.
(d) The annual review and evaluation shall be in accordance with specific criteria
developed jointly by the City Council and the City Manager. Such criteria
may be added to or deleted as the City Council may from time to time
determine in consultation with the City Manager.
(i) The City Council and the City Manager shall define such goals and
performance objectives as they mutually determine are necessary for
the proper operation of the City for the attainment of the City Council's
policy objectives, and the City Council and the City Manager shall
further establish a relative priority among those goals and performance
objectives.
5) COMPENSATION - The City agrees to provide the following compensation to the City
Manager during the term of the agreement:
A) Compensation & Required Employer Costs
(1) Base Salary
(a) The annual salary for the position of City Manager shall remain unchanged
from the predecessor's annual salary at the time of her separation.
(b) The City Council shall review the manager's salary and benefits annually and
may consider performance bonuses or salary adjustments at the sole
discretion of the City Council. Based upon the Manager's performance and
availability of funds, it is the intent of the City Council to compensate the
Manager in a manner consistent with the nature and scope of the assigned
duties and responsibilities and in light thereof to endeavor to make the
Manager the highest paid City Manager in the County of Marin.
(2) Required Employer Costs
(a) Federal Insurance Contributions Act (FICA) (if applicable).
(b) Medicare.
(c) Unemployment Compensation.
(d) The cost of any fidelity or other bonds required by law for the City Manager.
(e) The cost to defend and indemnify the City Manager as provided in Section
8.0 below.
(f) Workers Compensation.
B) Benefits
(1) Holidays - The City Manager is entitled to paid holidays in accordance with the
provisions of the salary and benefit plan for the Unrepresented Executive
Management Group.
(2) Leave Allowance
(a) The City Manager shall receive the same vacation accrual and benefits as
provided to the Unrepresented Executive Management class of City
employees.
(b) The City Manager shall receive the same sick leave accrual and benefits as
provided to the Unrepresented Executive Management class of City
employees. Sick Leave accrual is based upon tenured employment with the
City.
(c) City Manager shall be entitled to administrative leave per year in accordance
with the provisions of the Salary and Benefit Plan for the Unrepresented
Executive Management Group.
(d) All vacation, administrative and sick leave hours already accumulated by the
City Manager during the time of his previous positions of employment with
the City of San Rafael are carried forward and made applicable in the new
position as City Manager.
(3) Automobile - The City Manager shall be provided a monthly automobile allowance
of $400.00 in exchange for making his vehicle available for the City Manager's
own use and for City -related business and/or functions during, before, and after
normal work hours. Said allowance is intended to defray costs that the City
Manager incurs in utilizing his personal vehicle for City business. The automobile
allowance shall appear on the City Manager's payroll stub as ordinary income
and part of his salary, but shall not be considered part of the City Manager's base
salary for purposes of this Agreement.
(4) Benefits that Accrue to Other Employees - The City Manager shall be entitled to
all benefits, rights, and privileges accorded to non-public safety City Department
Directors, including, but not limited to, group health and dental insurance, except
as otherwise provided in this Agreement. If there is any conflict between this
Agreement and any resolution fixing compensation and benefits for non-public
safety City Department Directors or other unclassified employees, this
Agreement shall control. As is past practice, this paragraph is intended to
include salary and salary -related compensation. City Manager shall receive at
least the same salary and salary -related adjustments as provided to the
Unrepresented Executive Management class of City employees.
6) SECURITY
A) Pensions - Marin County Employee Retirement Association (MCERA)
(1) City will pay only the City's Share for participation in the Marin County Employee
Retirement Association. The City Manager shall pay the employee share.
(2) Unless required by changes in State or Federal law, should City Manager retire
from City, his future MCERA pension and retiree health insurance benefits
("retirement rights and benefits") shall be guaranteed and vested at the same
benefit level as they were at his original date of hire which was January 2, 2007.
For purposes of retiree health insurance, the benefit at that time covered full
retiree medical premiums including all Medicare premiums without limitations.
The parties expressly agree and confirm that the retirement rights and benefits
in place at the City Manager's date of hire have been and continue to be a
material part of the consideration given for City Manager's acceptance of
employment with the City.
(3) Should current pension vesting rules change, such as through the California voter
Initiative process, City Manager may be treated like any other City employee at
the sole discretion of the City Council.
B) Deferred compensation
(1) Section 457 Plan.
(a) The City will make, in January of each year, an annual contribution equal to
$15,000 a year and as allowed by the Internal Revenue Code and its related
regulations (excluding any age-related and catch-up provisions that are now
or may in the future become applicable) into a qualified Section 457 Plan
from one of the City approved plans as selected by the City Manager.
(2) Management Allowance
(a) The City will make available and contribute amounts each pay period to a
Management Allowance, consistent with the contributions made for
employees in the Unrepresented Executive Management Group.
(3) Internal Revenue Code Compliance - All provisions of Sections 5.A and 5.B are
subject to the provisions and limitations of the Internal Revenue Code and its
related regulations as amended from time to time. No requirement of any
provision of Sections 5.A and 5.13 shall be effective if it would violate any
provision of the Internal Revenue Code or its related regulations, and the inability
of the City to effectuate such requirements shall not constitute a breach of this
Agreement.
C) Insurance
(1) Disability Insurance. Long Term Disability insurance is to be provided as
stipulated in the Unrepresented Management Resolution.
(2) Life Insurance. Term life insurance in the amount of $250,000, with the premium
to be paid by the City, payable to a beneficiary the City Manager designates.
7) SEPARATION
A) Resignation Retirement - The City Manager may resign at any time and agrees to give
the City at least 45 days advance written notice of the effective date of his resignation,
unless the Parties otherwise agree in writing. If the City Manager retires from full time
public service with the City, the City Manager may provide six months' advance
notice. The City Manager's actual retirement date will be mutually established.
B) Termination & Removal —
(1) While this Agreement contains reference to a rolling three (3) year term in Section
3 above, it is expressly understood that the Manager is an at -will employee of
the City, servicing at the pleasure of the City Council as provided in Government
Code Section 36506.
(2) The City Council may remove the City Manager at any time, with or without cause,
by a majority vote of its members. Notice of termination shall be provided to the
City Manager in writing. Termination as used in this Section shall also include a
request that the City Manager resign, a reduction in salary or other financial
benefits of the City Manager, a material reduction in the powers and authority of
the City Manager, or the elimination of the City Manager's position. Given the
at -will nature of the position of City Manager, an important element of the
employment agreement pertains to termination. It is in both the City's interest
and that of the City Manager that any separation of the City Manager is done in
a businesslike manner.
C) Severance Pay
(1) In the event that the City Manager is terminated by the City Council during such
time that the City Manager is willing and able to perform his duties under this
Agreement, then the City agrees to pay the City Manager a lump sum cash
payment equal to six months' base salary and benefits. It is the intention of the
parties that this paragraph complies with the requirements of Government Code
Section 53260 et. seq. In the event of any conflict between this provision and
those code sections, the terms of those code sections shall govern the
contractual relationship between the employer and employee.
(2) In addition, the City shall extend to the City Manager the right to continue health
insurance as may be required by and pursuant to the terms and conditions of the
Consolidated Omnibus Budget Reconciliation Act Of 1986 (COBRA).
(3) All payments required under Section 7.0 (1), and (2), are subject to and shall be
interpreted to comply with the limitations set forth in Government Code Section
53260.
(4) In no event may City Manager be terminated within ninety (90) days before or
after any municipal election for the selection or recall of one or more members
of the City Council.
D) Involuntary Resignation
(1) In the event that the City Council formally or a majority of the City Council
informally asks that the City Manager resign, then the City Manager shall be
entitled to resign and still receive the severance benefits provided in Section 7.0
above.
E) Separation for Cause
(1) Notwithstanding the provisions of Section 7.C, the City Manager may be
terminated for cause. As used in this Section, "cause" shall mean only one or
more the following:
(a) Conviction of a felony;
(b) Conviction of any illegal act involving moral turpitude or personal gain;
(c) A plea of nolo contendere to any felony or illegal act involving moral turpitude
or personal gain;
(d) Any act constituting a knowing and intentional violation of City's conflict of
interest code;
(e) Continued abuse of non-prescription drugs or alcohol that materially affects
the performance of the Manager's duties; or
(f) Repeated and protracted unexcused absences from the City Manager's office
and duties.
(2) In the event that the City terminates the City Manager for cause, then the City
may terminate this Agreement immediately, and the City Manager shall be
to
entitled to only the compensation accrued up to the date of termination,
payments required by Section 7.F below, and such other termination benefits
and payments as may be required by law. The City Manager shall not be entitled
to any severance benefits provided by Section 7.C. The City reserves the right
to suspend City Manager with pay at any time during the pendency of any of the
foregoing events under item (1) above.
F) Payment for Unused Leave Balance
(1) On separation from City employment, the City Manager shall be paid for all
unused accrued leave allowances provided in Section 5.B(2) above.
Accumulated leave balances shall be paid at the City Manager's monthly salary
rate at the effective date of separation.
8) MISCELLANEOUS PROVISIONS
A) Amendments - This Agreement may be amended at any time by mutual written
agreement of the City and the City Manager.
B) Conflict of interest
(1) The City Manager shall not engage in any business or transaction or have a
financial or other personal interest or association, direct or indirect, which is in
conflict with the proper discharge of his official duties or which would tend to
impair independence in the performance of his official duties.
(2) The City Manager shall also be subject to the conflict of interest provisions of
the California Government Code and any conflict of interest code applicable to
the City Manager's City employment.
(3) The City Manager is responsible for submitting to the City Clerk the appropriate
Conflict of Interest Statements at the time of appointment, annually thereafter,
and at the time of separation from the position.
C) Indemnification
(1) To the full extent of the law as provided by the California Torts Claims Act
(Government Code Section 810 et seq.) and the indemnity provisions of this
Agreement, whichever shall provide the greatest protection to the City Manager,
the City shall defend and indemnify the City Manager against and for all losses
sustained by the City Manager in direct consequences of the discharge of the
City Manager's duties on the City's behalf for the period of the City Manager's
employment.
(2) The City shall defend, save harmless, and indemnify the City Manager against
any tort, professional liability claim or demand or other legal action, whether
groundless or otherwise, arising out of an alleged act or omission occurring in
the performance of the City Manager's duties as City Manager. The City may
compromise and settle any such claim or suit and pay the amount of any
settlement or judgment rendered thereon in the City's sole discretion.
(3) Whenever the City Manager shall be sued for damages arising out of the
performance of his duties, the City shall provide legal defense for the City
Manager in such suit and indemnify the City Manager from any judgment
rendered against the City Manager; provided that such indemnity shall not
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extend to any judgment for damages arising out of any willful wrongdoing. This
indemnification shall extend beyond termination of employment and the
otherwise expiration of this Agreement to provide protection for any such acts
undertaken or committed in the City Manager's capacity as City Manager,
regardless of whether the notice of filing of a lawsuit occurs during or following
employment with the City. This indemnity provision shall survive the termination
of the Agreement and is in addition to any other rights or remedies that the City
Manager may have under the law.
(4) The City and all parties claiming under or through it, hereby waives all rights of
subrogation and contribution against the City Manager, for all matters while
acting within the scope of the City Manager's duties, from all claims, losses and
liabilities arising out of or incident to activities or operations performed by or on
behalf of the City or any party affiliated with or otherwise claiming under or
through it, regardless of any prior, concurrent, or subsequent active or passive
negligence by the City Manager.
(5) In the event that the City Manager shall serve as the chief executive of other City -
related legal entities as provided in Section 4.A (1)(b) above, then each provision
of this Section 7.0 shall be equally applicable to each City -related legal entity as
though set forth in an indemnity agreement between the City Manager and that
legal entity. The City hereby guarantees the performance of this indemnity
obligation by the City -related legal entity, and shall indemnify and hold the City
Manager harmless against any failure or refusal by City related legal entity to
perform its obligations under this Section 7.C.
D) Severability - If any clause, sentence, part, section, or portion of this Agreement is
found by a court of competent jurisdiction to be illegal or unenforceable, such clause,
sentence, part, section, or portion so found shall be regarded as though it were not
part of this Agreement and the remaining parts of this Agreement shall be fully
binding and enforceable by the Parties hereto.
E) Laws Affecting Title - In addition to those laws affecting a City Manager, the City
Manager shall have the same powers, rights and responsibilities as a Chief
Executive Officer, City Administrative Officer, Administrator, and/or City
Administrator as those terms are used in local, state, or federal laws.
F) Jurisdiction and Venue - This Contract shall be construed in accordance with the
laws of the State of California, and the Parties agree that venue shall be in Marin
County, California.
G) Entire Agreement - This Contract represents the entire agreement of the Parties, and
no representations have been made or relied upon except as set forth herein. This
Contract may be amended or modified only by a written, fully executed agreement
of the Parties.
H) Notice - Any notice, amendments, or additions to this Agreement, including change
of address of either party during the term of this Agreement, which the City Manager
or the City shall be required, or may desire, to make, shall be in writing and shall be
sent by prepaid first class mail or hand delivered to the respective Parties as follows:
(a) If to the City:
Mayor
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City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1560
(b) If to the City Manager:
City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1560
EXECUTION:
IN WITNESS WHEREOF, the City of San Rafael has caused this amended and
restated Agreement to be duly executed by its Mayor and the City Manager, and duly
attested by its City Clerk, the 21st day of January, 2020.
EMPLOYER - CITY OF SAN RAFAEL
By: "A'/ "44��
Gary O. PbIlips, Mayor
ATTEST:
Lindsay Lara, City Clerk
APPROVED AS TO FORM:
Q
Robert P. Epstein
City Attorney
CITY MANAGER
Jan". Schutz
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