HomeMy WebLinkAboutDestefano, James 12/17/2015AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS Amel{ded and Restated Employinent Agreement ("Agreement") is made and entered
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into as of this i? day of December, 2015, by and between the CITY OF DIAMOND BAR, a
general law city and municipal corporation (hereinafter "City"), and JAMES DESTEFANO
(hereinafter "Employee"), both of whom understand as follows:
RECITALS
A. City desires to engage the services of Employee, and Employee desires to accept
employment as City Manager of the City.
B. The City Council desires to:
(1) Encourage the highest standards of fidelity and public service on the pat
of Employee; and
(2) Provide a just means for terminating Employee's services at such time as he
may be unable fully to discharge his duties, or when City may desire
otherwise to terminate his employment.
C. 'The parties entered into that certain Employment Agreement which was
approved by the City Council at a public meeting to be effective July 31, 2006 (the "2006
Agreement"). The 2006 Agreement has not been anended since that time. The parties desire
to amend and restate the 2006 Agreement to read as set forth herein.
D. The parties farther desire to establish certain benefits and certain conditions of
Employee's employment.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained the
parties agree as follows:
1. Duties. City appoints Employee as City Manager of City to perform the functions
and duties specified in City's Municipal Code and the Govennnent Code of the State of California,
and to perform such other legally pennissible and proper duties and functions as the City Council
may from time to time assign. Employee shall not consult or engage in other non -City connected
business or employment without the prior knowledge and express written approval of the City
Council.
2. Tenn, This Agreement is effective as of December /72015 and shall continue
in effect unless terminated as provided in Section 3 herein.
3. Termination and Resignation.
A. Nothing in this Agreement shall prevent, limit or otherwise interfere with
the right of the City Council to terminate, by a majority vote of the City Council, the
services of Employee without cause, at any time, subject only to the City providing written
notice to Employee, and complying with paragraph D of this Sectiono 3. Notice of
termination shall not be given during or within a period of ninety (90) days succeeding
any general municipal election held in the City at which members of the City Council are
elected.
B. Noting in this Agreement shall prevent, limit or otherwise interfere with
the right of Employee to resign at any time from his position with City, subject only to
Employee providing thirty (30) days prior written notice to the City.
C. Notwithstanding the provisions of Paragraph A of this Section 3, in the
event Employee is terminated by City for "cause," then City may terminate this Agreement
immediately and Employee shall be entitled to only the compensation accred up to the
date of termination. As used in flus section, "cause" shall mean any of the following:
(1) Conviction of any felony.
(2) Conviction of a misdemeanor arising directly out of the City Manager's
duties pursuant to this Agreement.
(3) Conviction of any crime involving moral turpitude.
(4) Removal from office by the Grand Jury.
(5) Willful abandonment of duties.
(6) A pattern of repeated, willful and intentional failure to cavy out clear,
unambiguous, materially significant and legally constituted policy
decisions of the City Council made by the City Council as a body.
D. In the event Employee is terminated by the City Council at any time that
Employee is still willing and able to perform the duties of City Manager, and the
termination is without cause as "cause" is defined in Paragraph C above, then, subject to
the limitations set forth in Government Code Section 53260, the City shall pay Employee
a lump sum cash payment equal to six (6) month's aggregate salary and benefits. The word
"termination" in this paragraph shall include a reduction in salary (other than an across-
the-board reduction applicable to all Executive Management employees) or other finalcial
benefits of Employee or Employee's resignation, if preceded by a formal request by a
majority of the City Council that he resign.
E. Effect of Payrnent of Severance/Release.
(1) This Section applies only to the following matters: (a) any rights of
Employee to receive severance benefits under this Agreement, (b) any right
of employee to continued employment with City, and (c) any claim,
demand, or cause of action or damages for wrongful termination
(collectively the "Released Matters").
(2) This Section does not otherwise affect, waive, nor release any other rights
Employee may have under this Agreement, or applicable law.
(3) Upon City's full payment of severance benefits to Employee and
Employee's acceptance thereof, Employee (a) releases and discharges City
and its elected officials, appointed officers, employees, sub -contractors,
agents, accounts, attorneys, successors and all other persons acting for,
under, or in concert with City both past and present from any and all
personal claims, demands, actions, causes of action, obligations, damages,
liabilities, losses, costs and expenses, including attorney's fees of any kind
or nature whatsoever, past, present and future, arising from, relating to or
in connection with the Released Matters, and (b) agrees to waive any and
all claims, demands, actions, causes of action, obligations, liabilities, claims
of credits or offsets, costs and expenses, including attorney's fees, of any
kind or nature whatsoever as to the Released Matters. As to the Released
Matters only, Employee acknowledges that he has read and Understands
California Civil Code § 1542 which states:
"A general release does not extend to the claims which a creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by hin, must have materially
affected his settlement with the debtor."
The parties agree that full payment of the severance benefits in this Agreement and Employee's
acceptance thereof, acts as a complete and total release of all future clahms which may arise out of
the Released Matters whether such claims are currently known or unknown, foreseen or
unforeseen, contingent or absolute; and as to the Released Matters the patties intentionally and
specifically waive any rights they may have udder the provisions of Civil Code § 1542, as well as
under any other statutes or common law principles of similar effect, and each party assumes full
responsibility for such injuries, damages, losses or liabilities that any of theta may hereafter incur
with respect to the Released Matters. This section will survive termination of the Agreement.
4. Revolving Door. Employee must comply with Govenunent Code § 87406.3 for a
period of one year after separating from service with City. This section will survive termination of
this Agreement:
5. Salary. Under the 2006 Agreement City agreed to pay Employee for the services
required by this Agreement a base annual salary of One Hundred Fifty Seven Thousand Dollars
($157,000.00) payable in installments at the same time as other employees of the City are paid and
to maintain a greater than fifteen (15) percent salary differential between the Highest step of the
salary range for the Assistant City Manager and Employee. Pursuant to the 2006 Agreement and
this Agreement and Resolution Nos. 2007-46, 2008-20, 2010-13, 2011-25, 2012-32, 2013-10,
2014-12, 2014-20, 2015-15, the Employee's salary has been increased during the tern of this
Agreement to reflect this 15 percent differential, so that as of the effective date of this Agreement,
Employee's salary is $214,168.44, which salary shall be reflected in the City's employee salary
schedule. The City agrees to maintain Employee's salary at fifteen (15) percent higher than the
highest step of the salary range for the Assistant City Manager.
City agrees to pay Employee a monthly car allowance of Five Hundred Dollars ($500) per
month. The car allowance is intended to reimburse Employee for the use of his private vehicle for
City business. Employee must provide his own automobile for his use in performing his duties and
is responsible for all maintenance, repair, fuel and insurance expenses for said vehicle.
At the time of his annual evaluation, City agrees to evaluate Employee's salary and/or any
other benefits Employee receives under this Agreement and to make modifications in such
amounts and to such an extent as City Council in its discretion may determine that it is desirable
to do so.
6. Hours of Work. Employee shall work a 9/80 -work schedule, meaning that he is
entitled to be off work on alternate Fridays. That notwithstanding, Employee's duties may involve
expenditures of time in excess of nine (9) hours per day, eighty (80) hours per two week period,
and will also include time outside normal office hours such as attendance at City Council and other
meetings. Employee shall be exempt from paid overtime compensation.
7. Retirement and Insurance Benefits.
A. Retirement. During the tern of this Agreement, City shall
contribute to employer's and Employee's portion of Employee's membership in the Public
Employees Retirement System. Employee shall pay any legally required Social Security
withholding.
B. Medical and Other Insurance. City shall provide Employee with the same health
insurance, disability insurance and life insurance benefits as is provided to Executive
Management employees of the City to be applied towards cafeteria plan for purchase of health,
dental, vision, life insurance and other similar benefits at Employee's election.
C. Other Insurance. City shall provide and pay for all other insurance mandated by
State law.
D. Termination of Benefits. Notwithstanding the foregoing, City's obligation to pay
Employee health benefits, including dependents, terminates upon the employment of Employee
by another employer on the date such benefits are effective for Employee.
8. Sick Leave, Vacation and Holidays.
A. Leave. Employee shall be entitled to sick leave, vacation leave,
administrative leave, floating holiday and bereavement leave in the same mariner as
Executive Management employees of the City. Employee shall accrue leave time at the
same monthly rate as provided to Executive Management employees with Employee's
tenure. Effective January 1, 2016, Employee shall be credited with an additional 40 hours
of vacation leave and 40 hours of sick leave and annually thereafter.
B. Holidays. Employee shall be entitled to the same number of paid holidays
per year as provided to other City employees.
9. _ Professional Development. neat. City agrees to budget for and pay travel and subsistence
expenses of Employee for professional travel, official travel, meetings necessary to pursue official
and other functions for the City and to continue professional development of Employee, to the
extent deemed reasonable by the City Council.
10. Memberships. City agrees to pay Employee's membership dues in the International
City Management Association ("ICMA"), California League of Cities and other similar
organizations to which City is a member, at City expense with prior City' approval. Employee shall
have a reasonable right to attend meetings of such organizations. City agrees to pay for such other
professional membership dues and subscriptions as are approved in advance by the City Council.
It. General Expenses. City recognizes that certain extraordinary expenses of a
nonpersonal and job affiliated nature may be incurred by Employee. City agrees to reimburse
Employee for reasonable expenses which are submitted to the City Council within thirty (30) days
for approval and which are supported by expense receipts, statements or personal affidavits, and
an audit thereof in like manner as other demands against the City.
12. Evaluation of Performance. On or about the twelfth (12th) -month anniversary of
the commencement of this Agreement, the City Council shall review and provide Employee with
an evaluation of his perfonnance based on criteria established by the Council with Employee's
assistance. The City Council shall conduct, such evaluation annually thereafter. Notwithstanding
the foregoing, the City Council may evaluate Employee at any time.
13. Other Terns and Conditions of Employment. The City Council may from time to
time fix other terms and conditions of employment relating to the perfonnance of Employee
provided such terms and conditions are not inconsistent with or in conflict with the provisions of
this Agreement, the Municipal Code, or other applicable law.
14. General Provisions.
A. The text herein shall constitute the entire agreement between the parties.
B. If Employee dies or becomes incapacitated during the term of this
Agreement, any accrued and unpaid wages provided by the tenns of this Agreement shall
be paid by City to Employee's spouse.
C. If any provision or portion hereof contained in this Agreement is held to be
unconstitutional, invalid or unenforceable the remainder of this Agreement or portion
thereof shall be deemed severable and shall not be affected and shall remain in full force
and effect.
D. City agrees to defend and indemnify Employee in accordance with the
California Government Code.
E. City shall bear the cost of any fidelity or other bonds required of Employee
under any law or ordinance. This Agreementrnay be changed or amended by the mutual
written consent of City and Employee. Any benefits to Employee under this Agreement
may be increased or added to by motion of the City Council without formal amendment to
the Agreement.
F. Employee is expected to conforru to the ICMA Code of Ethics and must
comply with all applicable provisions of the City's conflict of interest code. .
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
EMPLOYEE 1AMFS ANO
CITY OF DIAMOND BAR NANCY A. LYONS
MAYO! --`n— `y ---
AT'- EST:
CITY CP—,—RK, TOMMYE CRIBBINS