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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 Resolution No. 98- 094 Page 5 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 Page 7 (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 Page 8 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