Res 98-094RESOLUTION NO. 98- 094
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY
APPROVING THE FORM OF EMPLOYMENT AGREEMENT
FOR SPECIFIC EMPLOYEES, AUTHORIZING THE
CITY MANAGER TO EXECUTE THE SAME, AND AUTHORIZING
AND DIRECTING CERTAIN ACTIONS WITH RESPECT THERETO
WHEREAS, the City of Poway, California (the "City") has charged the City
Manager for the City with the duty to appoint, remove, promote and demote any and all
officers and employees of the City of Poway, subject to all applicable personnel
ordinances, rules and regulations; and
WHEREAS, the City Council for the City has determined that it is in the public
interest, for the retention and recruitment of specific employees in managerial positions,
to develop contractual at-will employment relationships, specifying terms of
employment, including termination, which terms may differ from those under existing
personnel rules; and
WHEREAS, the City Council has excepted specific employees from the
provisions of the personnel system under the Poway Municipal Code, including the
Assistant City Manager, the Director of Administrative Services, the Director of
Community Services, the Director of Development Services, the Director of Public
Services, the Director of Redevelopment Services, and the Director of Safety Services,
if an employee being excepted from the personnel system is (1) holding one of these
specified positions, and (2) is subject to an at-will employment agreement between the
City and the officer or employee; and
WHEREAS, in order to implement at-will employment with specified employees
the City Manager has caused to be prepared a form of employment agreement setting
forth the terms and conditions of employment for specified employees;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF POWAY as follows:
1. The form of employment agreement, between the City and any employee
specified therein (the "Employment Agreement") in the form attached hereto as Exhibit
A, is hereby approved. The City Council authorizes and directs the City Manager, on
behalf of the City, to utilize the form of Employment Agreement for purposes of the
recruitment, employment, and retention, of those employees specified in the Recitals
above, for and on behalf of the City. The City Manager is hereby authorized to make
such additions and changes to the form of the Employment Agreement in order to make
the Employment Agreement complete and final in form for execution.
Resolution No. 98-094
Page 2
2. The City Manager is hereby authorized to execute the Employment
Agreement, once approved as to form by the City Attorney and complete in all regards.
3. No alterations or changes to the form of Employment Agreement, except
those of a de minimis nature, and except those necessary to make the Employment
Agreement complete, shall be made by the City Manager without the prior approval of
the City Council.
4. This Resolution shall take effect upon its adoption by this Council.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, at a regular meeting thereof this 22nd day of September, 1998.
ATTEST:
L(~i Anne Peoples, C~ty Clerk
Resolution No. 98-094
Page 3
STATE OF CALIFORNIA )
) SS,
COUNTY OF SAN DIEGO )
I, Lori Anne Peoples, City Clerk of the City of Poway, do hereby certify under
penalty of perjury that the foregoing Resolution No. 98-094 was duly adopted by the
City Council at a meeting of said City Council held on the 22nd day of September,
1998, and that it was so adopted by the following vote:
AYES: CAFAGNA, EMERY, GOLDBY
NOES: NONE
ABSTAIN: NONE
ABSENT: REXFORD, HIGGINSON
Lorl Anne Pe(~ples, City ~3~erk
City of Poway
Resolution No. 98-094
Page 4
EMPLOYMENT AGREEMENT
and
THIS AGREEMENT is made and entered into the __ day of ,
, by and between the City of Poway, California, a Municipal Corporation (the "City")
(the "Employee").
RECITALS
1. City desires to employ the services of the Employee in the position of
to perform the duties of that office.
The office of is subordinate to the office of the City
Manager of the City of Poway (the "City Manager"). In accordance with Section
2.16.030.D. of the Poway Municipal Code, and Section 1.3.D. of the City's
personnel rules, the office of is not subject to the City's
personnel system and personnel rules.
It is the desire of the City to secure and maintain the services of the Employee
and to provide inducement for Employee to remain in such employment; to
make possible full work productivity by assuring the Employee's morale and
peace of mind with respect to future security; to act as a deterrent against
malfeasance or dishonesty for personal gain on the part of the Employee; and
to provide a means for terminating the employment relationship at such time as
Employee may be unable to discharge the duties of the office or when the City
may otherwise desire to terminate the employment relationship between the
parties.
4. Employee desires to accept employment as a
of Poway.
for the City
NOW, THEREFORE, IN CONSIDERATION OF PERFORMANCE BY THE PARTIES
OF THE COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES
AGREE AS FOLLOWS:
EXHIBIT A
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SECTION 1. DUTIES
City engages Employee as to perform the functions and
duties specified in the job description for the office of , as the same
may be modified by the City Manager, from time to time, and to perform such other legally
permissible and proper duties and functions as the City Manager shall, from time to time,
assign.
SECTION 2. TERMINATION AND SEVERANCE PAY
A. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the
right of the City Manager to terminate the services of the Employee at any time.
(i) Employee is retained for an indefinite term, shall serve at the will of the
City Manager, and may be terminated without cause at any time. Employee is
not subject to, or protected by, the City personnel system codified in Poway
Municipal Code Chapter 2.16 or the City's personnel rules adopted by
resolution of the City Council. In the event that Employee is terminated by the
City Manager during such time that Employee is willing and able to perform the
duties of , then in that event the City agrees to pay the
Employee, subject to elimination as hereinafter set forth, a lump sum cash
payment not to exceed the equivalent of six (6) months' aggregate salary.
(ii) In the event Employee is terminated because of the conviction of a crime
involving personal gain or is charged with any felony or any misdemeanor
involving moral turpitude, or for the breach of any term, covenant or condition
of this Agreement, then, in that event, City shall have no obligation to pay the
aggregate severance sum designated in this paragraph, it being agreed by the
parties hereto that such actions result in the waiver of any claim for severance
compensation on the part of Employee.
(iii) This promise, and the tender of payment to Employee, of any severance
compensation payable herein, is in lieu of any damages which Employee might
suffer arising out of the termination of the employment relationship between the
parties, including lost wages, breach of contract (both expressed and implied),
breach of the implied covenant of good faith and fair dealing, emotional distress
and anxiety, or any similar contractual and personal injury claims.
Resolution No. 98-094
Page 6
In the event that Employee voluntarily resigns his/her position with the City,
then Employee shall give the City reasonable notice, in no event to be less
than thirty (30) days, in writing, in advance of said resignation.
Regardless of the indefinite term of this Agreement, if the Agreement is
terminated the maximum cash settlement that Employee may receive shall be
an amount equal to the monthly salary of Employee multiplied by the number of
months of severance compensation payable as calculated in paragraph B,
above. The cash settlement formula is a cap or maximum ceiling that may
be paid by City and shall not be construed as a target or example of the
amount of the cash settlement to be paid by City to Employee in the event
this Agreement is terminated. The severance pay (or cash settlement)
calculation shall not include any other non cash items except health benefits,
which may be continued for the same duration of time as covered in the
settlement or until Employee finds other employment, whichever occurs first. It
is the intention of the parties that this paragraph comply with the requirements
of California Government Code Section 53260, et seq.
SECTION 3. SALARY AND BENEFITS
City agrees to pay Employee, for services rendered by Employee pursuant hereto,
an annual base salary of $ , payable in monthly installments of
$ , at the same time and manner as other employees of the City are paid, beginning
For purposes of fringe benefits, Employee is considered a Group 1 employee in the
Salary and Benefit Plan for Management, Supervisory, Professional, and Confidential
Employees (Management/Confidential Group).
SECTION 4. APPLICATION OF CITY PERSONNEL RULES
Except as otherwise provided herein, the terms of City's personnel rules shall not
apply to Employee.
The following provisions of the personnel rules, in effect as of the date of this
Agreement, shall apply to Employee:
(a) Rule 2 (Definition of Terms) as necessary for the interpretation of applicable
rules, except that Rules 2.3 and 2.25 shall be amended to mean only the City
Manager;
Resolution No. 98-094
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(b) Rule 5.9;
(c) Rule 6 (Attendance and Leave) except for Rule 6.10;
(d) Rule 7 (Medical Examinations);
(e) Rule 9 (Nepotism);
(f) Rule 10 (Reports and Records);
(g) Rules 14.1 and 14.2; and
(h) Rule 16 (Equal Employment Opportunity).
SECTION 5. HOURS OF WORK
It is recognized that Employee must devote a certain amount of time outside
the normal office hours to business of the City, and to that end Employee will
be allowed to take reasonable compensatory time off during normal business
hours.
Employee shall not spend more than ten (10) hours per week in teaching,
consulting, or other non-City-connected business without the express prior
approval of the City Manager.
SECTION 6. DUES AND SUBSCRIPTIONS
City agrees to budget and to pay the professional dues and subscriptions of
Employee necessary for his/her continuation and full participation in national, regional,
state, and local associations and organizations necessary and desirable for Employee's
continued professional participation, growth, and advancement, and for the good of the
City.
SECTION 7. PROFESSIONAL DEVELOPMENT
City recognizes and encourages the professional development of Employee. To this
end, Employee is encouraged to continue his/her professional development through
his/her involvement with professional societies and organizations, including but not limited
to , the League of California Cities, and such
other national, regional, state, and local governmental groups and committees of which
Resolution No. 98- 094
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Employee may be a member. City agrees to budget and pay for reasonable travel and
subsistence expenses of Employee in attending meetings and conferences which assist
in his/her professional advancement.
SECTION 8. OTHER TERMS AND CONDITIONS OF EMPLOYMENT
A. If it is required by Employee's job description, Employee shall at all times be
licensed as a , in the State of California.
The City Manager shall fix any such other terms and conditions of employment,
as he may determine from time to time, relating to the performance of
Employee, provided that such terms and conditions are not inconsistent with or
in conflict with the provisions of this Agreement, or any other laws.
SECTION 9. GENERAL PROVISIONS
The text herein shall constitute the entire and exclusive agreement between the
parties. All prior oral or written communications, understandings or agreements
between the parties, not set forth herein, shall be superseded in total by this
Agreement.
No amendment or modification to this Agreement may be made except by
written agreement between the parties hereto, and approved as to form by the
City Attorney.
C. This Agreement shall become effective commencing
If any provision, or any portion thereof, contained in this Agreement is held to
be unconstitutional, illegal, invalid, or unenforceable by a court of competent
jurisdiction, the remaining provisions, or portions thereof, shall be deemed
severable, shall not be affected, and shall remain in full force and effect.
This Agreement and all matters relating to it shall be governed by the laws of
the State of California. Any action to interpret or enforce the terms of this
Agreement shall be held exclusively in a state court in San Diego County,
California. Employee expressly waives any right to remove any such action
from San Diego County otherwise permitted by California Code of Civil
Procedure Section 394.
-- Resolution No. 98-094
Page 9
IN WITNESS WHEREOF, the City of Poway has caused this Agreement to be
signed and executed in its behalf by its City Manager, and approved as to form by its City
Attorney, and the Employee has signed and executed this Agreement the day and year
first above written.
CITY
James L. Bowersox, City Manager
APPROVED AS TO FORM:
EMPLOYEE
Stephen M. Eckis, City Attorney