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11-0630_BRUST, KAREN P._City Manager Employment Agreement0 0 CITY MANAGER EMPLOYMENT AGREEMENT This City Manager Employment Agreement ("Agreement") is made, entered into, and to be effective June 30, 2011 ("Effective Date"), by and between the City of San Juan Capistrano, a municipal corporation, ("City") and Karen P. Brust, ("Employee") an individual who has education, training, and experience in local government management and who, as a member of the International City/County Management Association ("ICMA"), is subject to the ICMA Code of Ethics, both of whom agree as follows: RECITALS WHEREAS, in order to insure that its governmental responsibilities are met at all times, the City must attract and retain management personnel who exhibit the highest degree of knowledge, experience, technical ability, professionalism, and leadership qualities; and, WHEREAS, in order to attract and retain in its employment a City Manager who possesses those qualities and experience necessary to fulfill the City's immediate and long-term objectives, the City Council has determined that it is advisable to enter into this employment agreement with Employee; and, WHEREAS, it is the desire of City to receive the services of Employee and to provide certain benefits, establish conditions of employment, and set working conditions for Employee; and, WHEREAS, City and Employee desire to enter into this Agreement in order to specify the terms and conditions of the Employee's employment with City. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the parties agree as follows: AGREEMENT Section 1: Term, This Agreement shall remain in full force and effect for a term of three (3) years commencing June 30, 2011, and shall automatically be renewed for a new three (3) year term on each anniversary of the Effective Date of this Agreement. Notwithstanding the foregoing, this Agreement may be terminated at any time by City or Employee as provided in Sections 9 or 11 of this Agreement. If termination occurs pursuant to Section 9.A.1, 9.A.2, 9.A.3 or in the event of an uncured material breach of contract by City pursuant to Section 9.A.5, the severance provision of Section 10 shall apply. In the event of other termination, the severance provisions of Section 10 shall not apply. Employee is employed with the City in an "at -will" capacity serving at the pleasure of the City Council. Either the City Council or Employee may terminate this Agreement at any time with or without cause, and in its or her sole discretion. Section 2: Duties and Authority. City agrees to employ Employee as City Manager of the City to perform the functions and duties with the powers and responsibilities currently specified in Article 2 of Chapter 5 of Title 2 (commencing with Section 2-5.201) of the San Juan Capistrano Municipal Code (hereafter, "City Manager Code"), and any successor provisions thereto, and to perform other legally permissible and proper duties and functions consistent with 0 0 the office of City Manager, as the City Council shall from time to time assign, including, but not limited to, the duties of the Executive Director of the San Juan Capistrano Community Redevelopment Agency. Section 3: Compensation. A. City agrees to pay Employee an annual base salary of Two Hundred Eighteen Thousand Dollars ($218,000), payable in installments at the same time that the other City executive employees are paid. B. Employee shall receive the same percentage Cost of Living adjustments to his/her annual base salary under this Agreement, at the same time, that other City executive employees receive such adjustments. This provision shall not apply to merit increases which may be provided to other executive employees from time to time. C. At the completion of the first year of service, based upon the results of the performance evaluation conducted under the provisions of Section 12 of this agreement and at the exercise of discretion by the City Council, Employee shall be eligible for a merit increase in annual base salary. D. Relocation Expenses — The City shall reimburse Employee for documented moving expenses from Employee's current residence to San Juan Capistrano, up to a maximum of $10,000. Section 4: Health, Disability, Life Insurance, and other Benefits. A. City agrees to provide and to pay the premiums for vision, dental, and comprehensive medical insurance for the Employee and his/her dependents in an amount equal to that which is provided to other City executive employees. B. City agrees to put into force and to make required premium payments for short term and long term disability coverage for the Employee on the same terms available to all other City executive employees. C. City shall pay the amount of premium due for life insurance with a value equivalent to two times the Employee's annual salary, plus $20,000, with a maximum of $400,000. Any amount in excess of $400,000 and up to $500,000 is subject to the completion of an Evidence of Insurability questionnaire. The Employee shall name the beneficiary or beneficiaries of the life insurance policy. D. City shall contribute $10,000 annually in installments to a Deferred Compensation account for Employee. Section 5: Vacation, Sick_ Administrative, Bereavement, Military Leave and Holidays. 9 0 A. Upon commencing employment, the Employee shall be credited with 180 hours of vacation leave and 108 hours of sick leave. The Employee shall then accrue sick leave at the same rate of other executive employees (8 hours per month) and vacation leave on an annual basis at the rate and on the same basis as employees with 11-19 years of service (164 hours per year). B. In the event that the Employee's employment is terminated, either voluntarily or involuntarily, the Employee is entitled to be compensated for remaining sick leave at 50% of Employee's hourly rate, pursuant to the payout levels established in Section 7.13 of the Personnel Rules and Regulations. Employee's remaining vacation leave will be compensated at 1001/o of Employee's hourly rate. C. The Employee shall be entitled to an annual administrative leave of eighty (80 hours). D. The Employee shall be entitled to military reserve leave time pursuant to state law and City policy. E. The Employee shall be entitled to bereavement leave and holidays on the same basis as other City executive employees. Section 6: Automobile and Cell Phone. The Employee shall be provided with a City vehicle (Ford Escape Hybrid) in lieu of receiving an automobile allowance. The Employee shall be provided with a City issued cell phone and City issued laptop computer. Section 7: Retirement. City agrees to enroll the Employee into the Orange County Employees Retirement System ("OCERS"), in accordance with OCERS' contract with City, and to make all the appropriate contributions on the Employee's behalf, for both the City and Employee share required. In furtherance of the City's desire to have all employees pay the "employee share" of retirement contributions, the Employee agrees to pay her "employee share" at 10.05%. Section 8: General Business Expenses. City recognizes that certain expenses of a non -personal but job related nature will be incurred by Employee. City shall provide Employee with a credit card pursuant to Administrative Policy Number 510, and Employee shall provide receipts for all business-related expenses to City's Financial Services Department on a monthly basis and prior to reimbursement. Section 9: Termination. A. For the purpose of this Agreement, termination of this Agreement and Employee's employment shall occur when: The majority of the City Council, in its sole discretion, votes to terminate the services of Employee pursuant to Section 2-5.212 of the San Juan Capistrano Municipal Code. 0 0 2. The San Juan Capistrano Municipal Code pertaining to the role, powers, duties, authority, and responsibilities of the City Manager is amended in a manner that substantially changes the functions of the City Manager position, without Employee's concurrence. 3. City reduces the annual base salary, other compensation or any other financial benefit of the Employee, unless the reduction is applied in no greater percentage than the average reduction of all department heads. 4. The Employee resigns following the City Council's acceptance of the resignation, whether formal or informal. 5. Material breach of contract declared by either party with a thirty (30) day cure period for either Employee or City. Written notice of a material breach of contract shall be provided in accordance with the provisions of Section 17. B. Notwithstanding anything to the contrary in this Agreement, pursuant to Section 2-5.215 of the San Juan Capistrano Municipal Code, Employee shall not be removed from office during or within a period of ninety (90) days next succeeding any general municipal election held in the City at which election a member of the Council is elected. Section 10: Severance. A. Severance shall be paid to the Employee if employment is terminated pursuant to Sections 9.A.1, 9.A.2, 9.A.3 or in the event of an uncured material breach of contract by City pursuant to Section 9.A.5. In such circumstances, City shall provide a severance payment equal to six (6) months annual base salary at the then -current rate of pay, less legally required or authorized deductions, to increase by one month for each year of service, not to exceed 12 months. This severance shall be paid in a lump sum upon termination. Severance shall also include payment for Employee's COBRA insurance premiums for a period not to exceed six (6) months. If Employee obtains employment, and becomes eligible to receive group health benefits, prior to the expiration of the six (6) month period following termination, the City shall have no obligation to continue making such payments on Employee's behalf. Employee has an obligation to notify City immediately upon obtaining employment after separation from the City. Failure to do so will extinguish the City's obligation to make any payments pursuant to this Section. B. Notwithstanding the provisions of Section 10.A, in the event Employee is terminated because of conviction of any felony or other criminal offense involving a violation of her official duties, misappropriation of public funds, or corruption in office, City shall have no obligation to pay the severance pay and benefits designated above. 0 0 Section 11: Resi ne ation. In the event that the Employee voluntarily resigns his/her position with City, the Employee shall provide a minimum of sixty (60) days' notice unless the parties agree otherwise. Section 12: Performance Evaluation. A. At least once annually, the City Council shall review and evaluate Employee's performance, in writing, and shall mutually define such goals and performance objectives which they determine necessary for the proper operation of the City and the San Juan Capistrano Community Redevelopment Agency in the attainment of the City Council's policy objectives. Further, the City Council and the Employee shall establish a relative priority among those various goals and objectives to be reduced to writing with a mutual expectation of Employee's achievement of those goals and objectives within a mutually agreed upon timeframe. The annual evaluations of Employee shall be conducted and completed in approximately May of each year under evaluation. B. Employee's annual review and evaluation shall be in accordance with criteria developed jointly by the City Council and the Employee. Such criteria may be added to or deleted as the City Council may from time to time determine in consultation with the Employee. C. In giving effect to the provisions of this Section 12, the City Council and the Employee mutually agree to abide by all provisions of applicable law. D. In its sole discretion, City shall be entitled to review the performance of Employee on a more frequent basis, and without a written evaluation. Section 13: Hours of Work. C. Manager is an exempt employee but shall engage in those hours of work that are necessary to fulfill the obligations of Manager's position. Manager does not have set hours of work as Manager is expected to be available at all times. Section 14: Outside Activities. A. During the term of this Agreement, Employee shall be a full-time City Manager. Employee shall not engage in any other occupation, business, educational, professional or charitable activities that would conflict or materially interfere with Employee's performance of her City Manager duties. B. This Agreement shall not be interpreted to prohibit Employee from making personal investments or conducting private business affairs, if those activities are not deemed to be a conflict of interest under state law or would otherwise not be a violation of state or federal law or the City's municipal code, or do not materially interfere with the services required under this Agreement. Section 15: Indemnification. A. Except for willful wrongdoing, an act of misappropriation of public funds, an indictment, the filing of an information, a plea of guilty or a plea of nolo contendere for a crime involving moral turpitude, 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 Employee, City shall defend and indemnify Employee against and for all losses sustained by Employee resulting from the discharge of Employee's duties on City's behalf for the period of Employee's employment. B. Except for willful wrongdoing, an act of misappropriation of public funds, or an indictment, the filing of an information, a plea of guilty or a plea of nolo contendere for a crime involving moral turpitude, City shall defend, save harmless and indemnify Employee 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 Employee's duties as City Manager, regardless of whether the notice of filing of a lawsuit occurs during or following employment with City. City may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered thereon. C. Whenever Employee shall be sued for damages arising out of the performance of Employee's duties, City shall provide defense counsel for Employee in such suit and indemnify Employee from any judgment rendered against Employee; provided that such indemnity shall not extend to any judgment for damages arising out of any willful wrongdoing, an act of misappropriation of public funds, or an indictment, the filing of an information, a plea of guilty or a plea of nolo contendere for a crime involving moral turpitude. D. Except for willful wrongdoing, an act of misappropriation of public funds, or an indictment, the filing of an information, a plea of guilty or a plea of nolo contendere for a crime involving moral turpitude, City, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against Employee, while acting within the scope of Employee's duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of 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 Employee. E. In the event that Employee shall serve as an executive of other City -related legal entities, then each provision of this Section 15 shall be equally applicable to each City -related legal entity as though set forth in an indemnity agreement between Employee and that legal entity. City hereby guarantees the performance of this indemnity obligation by City -related legal entity, and shall indemnify and hold Employee harmless against any failure or refusal by City -related legal entity to perform its obligations under this Section 15. 0 0 F. The provisions of this Section 15 shall survive the termination of the Agreement and are in addition to any other rights or remedies that Employee may have under the law. Section 16: Bondine. City shall bear the full cost of any fidelity or other bonds required of the Employee under any law or Section 2-5.101 of the San Juan Capistrano Municipal Code. Section 17: Notices. Any notices to be given hereunder by either party to the other in writing may be effected either by personal delivery or by mail. Mailed notices shall be addressed to the parties as set forth below, but each party may change its address by written notice given in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated and received as of five (5) calendar days following the date of mailing: CITY: City of San Juan Capistrano Attention: Mayor 32400 Paseo Adelanto San Juan Capistrano, CA 92675 EMPLOYEE: Karen P. Brust 3379 Lone Jack Road Olivenhain, CA 92024 Section IS: Member "hi and Conferences. City agrees to budget and pay for the annual base professional membership dues on behalf of the Employee for any membership in the Orange County City Managers' Association, California City Management Foundation, the Government Finance Officers Association, and the International City/County Management Association. City shall, in accordance with City policies, allow Employee to attend and shall pay the cost of the conference as well as the Employee's time while attending the conference, such as those of the League of California Cities, ICMA and other similar conferences, contingent on approval of the City Council in the budget allocation process. Section 19: General Provisions. A. Inte agr tion. This Agreement sets forth and establishes the entire understanding between City and the Employee relating to the employment of the Employee by City. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. B. Binding Effect. This Agreement shall be binding on City and the Employee as well as on their heirs, assigns, executors, personal representatives and successors in interest. C. Severability. The invalidity or partial invalidity of any portion of this Agreement will not affect the validity of any other provision. In the event that any provision 0 0 of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they have been executed by both parties subsequent to the expungement or judicial modification of the invalid provision. D. Construction and Amendment. This Agreement shall be governed by the laws of the State of California. This Agreement may not be modified, altered, or amended except in writing and signed by the City and the Employee. E. Enforcement. The prevailing party in any action brought to enforce this Agreement or resolve any dispute or controversy arising under the terms and conditions hereof shall be entitled to payment of reasonable attorneys' fees and costs. Section 20. City's Policies and Procedures. The terms and conditions of Employee's employment, including additional employment benefits of Employee not specifically provided for in this Employment Agreement, shall be governed by City's personnel policies and procedures and Municipal Code, to the extent not inconsistent with the provisions of this Agreement. In the event of any such inconsistency or conflict, the provisions of the Municipal Code, then this Agreement, shall govern. The City Council may amend the City Manager Code from time -to -time, but such amendments shall not be applicable to this Agreement without the written consent of Manager. IN WITNESS WHEREOF, City has caused this Agreement to be signed and duly executed on its behalf by its Mayor, and duly attested by its City Clerk, and Employee has signed and executed this Agreement. P. Brust Attest: "_ kP City Clerk Approved as to form: