2014/04/08 City Council Resolution 2014-140RESOLUTION NO. 2014-140
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN EMPLOYMENT AGREEMENT BETWEEN
THE CITY OF ROHNERT PARK AND DON SCHWARTZ FOR ASSISTANT CITY
MANAGER SERVICES
WHEREAS, the City Council wishes to enter into an Employment Agreement with Don
Schwartz to perform the duties of Assistant City Manager in consideration of and subject to the
terms, conditions, and benefits set forth in the Employment Agreement;
WHEREAS, the City Manager, as the appointing authority, has determined that Don
Schwartz possesses the skills and expertise necessary to perform these services;
WHEREAS, Don Schwartz desires to serve as Assistant City Manager of the City of
Rohnert Park in consideration of and subject to the terms, conditions, and benefits set forth in the
Employment Agreement;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that the City Council authorizes and approves the Employment Agreement between the City
of Rohnert Park and Don Schwartz for Assistant City Manager services attached hereto as
Exhibit "A."
BE IT FURTHER RESOLVED that the City Manager is authorized and directed to
execute same for and on behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert
Park this 8th day of April, 2014.
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ATTEST:
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J nne, Buergler City Clerk
CITY OF ROHNERT PARK
---Josc`pi T. Callinan, Mayor
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`Exhibit A'
EMPLOYMENT AGREEMENT
Between
CITY OF ROHNERT PARK AND DON SCHWARTZ
THIS AGREEMENT between the CITY OF ROHNERT PARK ( "City ") and Don
Schwartz ( "Employee ") is dated for reference purposes this 30th day of April, 2014 and is
deemed effective as of that date.
RECITALS
WHEREAS, City desires to retain the services of Employee to serve as the Assistant
City Manager in consideration of and subject to the terms, conditions, and benefits set forth in
this Agreement;
WHEREAS, Employee desires to serve as Assistant City Manager of the City of
Rohnert Park in consideration of and subject to the terms, conditions, and benefits set forth in
this Agreement;
WHEREAS, Employee has the necessary education, experience, skills and expertise to
serve as the Assistant City Manager;
WHEREAS, the City Manager, as appointing power, and Employee desire to agree in
writing to the terms and conditions of Employee's employment;
AGREEMENT
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. DUTIES.
(a) City agrees to employ Employee as Assistant City Manager of the City of
Rohnert Park to perform the functions and duties specified in the City of Rohnert Park Job
Description for the Assistant City Manager position attached hereto as Exhibit A, and to
perform other legally permissible and proper duties and functions as City Manager may from
time to time assign.
(b) Employee shall perform his duties to the best of his ability in accordance with
the highest professional and ethical standards of the profession and shall comply with all
general rules and regulations established by City.
(c) Employee shall not engage in any activity, which is or may become a conflict of
interest, prohibited contract, or which may create an incompatibility of office as defined under
California law. Prior to performing any services under this Agreement and annually thereafter,
Employee must complete disclosure forms required by law.
2. TERM.
The term of this Agreement shall be from the 30th day of April 2014 through the 29th day of
April, 2017, or until terminated earlier by either party in accordance with the provisions set
forth in Paragraph 3 or by the event of the death or permanent disability of Employee.
Schwartz Employment Agreement
City of Rohnert Park
Page 2 of 7
3. RESIGNATION AND TERMINATION.
(a) Nothing in this Agreement shall prevent, limit or otherwise interfere with the
right of Employee to resign at any time from the position as City's Assistant City Manager.
Employee may terminate this Agreement by submitting written notice of his resignation to City.
Employee shall give the City thirty (30) days written notice of his intention to resign.
(b) Employee is an "at will" employee who serves at the pleasure of the City
Manager and nothing herein shall be taken to prevent, limit or otherwise interfere with the right
of the City Manager to terminate the services of Employee as Assistant City Manager with or
without cause at any time. There is no express or implied promise made to Employee for any
form of continued employment. Further, nothing in this Agreement is intended to, or does,
confer upon Employee any due process right to a hearing or other administrative process
pertaining to termination, before or after a decision by the City to terminate his employment,
unless Employee is entitled to a name clearing hearing under California or federal law. No
terms of this Agreement may be altered without an express written document signed by the
Employee and City Manager and approved by the City Council.
(c) Employee may be terminated for cause at any time by providing Employee
written notice of his termination for cause. Termination for cause means termination based
upon a breach of any of the terms of this Agreement, malfeasance of any nature occurring
during the course and scope of the Employee's duties as Assistant City Manager; or a
conviction, plea bargain, or personal adverse State or federal determination against Employee
individually involving any felony, intentional tort, crime of moral turpitude, violation of statute
or law constituting forfeiture of office, misconduct in office for personal gain, misuse of public
funds for personal benefit, conflict of interest resulting in conviction, or any other incompatible
activity or conflict of interest listed in Section 7 of City Personnel Rules and Regulations.
(d) Severance Benefits
(1) In the event Employee is terminated from employment without cause while
still willing and able to perform his duties under this Agreement during
Employee's initial 12 months of employment, Employee shall not be entitled
to any severance benefits. In the event Employee is terminated from
employment without cause while still willing and able to perform his duties
under this Agreement during the 13th through 24th months of Employee's
employment, then City agrees to pay Employee a lump sum cash payment
equal to one (1) month of his base monthly compensation. In the event
Employee is terminated from employment without cause while still willing
and able to perform his duties under this Agreement during the 25th through
36th months of Employee's employment, then City agrees to pay Employee a
lump sum cash payment equal to two (2) months of his base monthly
compensation. In addition, City shall extend to Employee the right to
continue health insurance as may be required by and pursuant to the terms
and conditions of the Consolidated Omnibus Budget Act of 1986 (COBRA).
Page 2 of 7
Schwartz Employment Agreement
City of Rohnert Park
Page 3 of 7
(2) In the event Employee is terminated for cause, Employee shall be entitled to
only the compensation earned and accrued and such other termination
benefits and payments as may be required by law. Employee shall not be
entitled to any severance benefits.
4. COMPENSATION AND BENEFITS.
(a) City agrees to pay Employee for his services rendered pursuant hereto as
Assistant City Manager a gross monthly salary of eleven thousand one hundred and ninety
dollars ($11,190.00) payable in installments at the same time as other employees of the City are
paid and subject to all applicable payroll taxes and withholdings. This is the second step of the
M103 salary range and movement to the next step in the salary range is performance based at
the City Manager's discretion. The position of Assistant City Manager is exempt under the Fair
Labor Standards Act and, therefore, no overtime pay will be paid to Employee based on hours
worked.
(b) In accordance with City policy, City Manager will review and evaluate
performance of Employee as Assistant City Manager once each year.
(c) Employee shall be entitled to all benefits, rights, and privileges afforded to the
non - public safety Management Unit 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.
(d) Employee shall be included in the City's Miscellaneous Plan with the California
Public Employees' Retirement System ( "CalPERS "); and enrolled in the two percent (2.0 %) at
age fifty five (55) program to miscellaneous member employees hired on or after July 1, 2011.
Employee shall contribute the total "employee contribution" required by law. City has
determined and warrants that Employee is a "current" or "classic" employee and not a "new"
employee as those terms are used and defined in the California Pension Reform Act (Gov. Code
§§ 7522 et seq.), effective January 1, 2013, and subsequent CalPERS implementing regulations.
(e) Employee is subject to City Personnel Rules and Regulations as an Executive
Management Employee and is exempt from specific rules and regulations as set forth in Section
1, subsection (C) of the Personnel Rules, as amended or supplemented from time to time.
Employee is exempt from the City's Grievance Policy and Procedure as set forth in Resolution
No. 79 -22 and incorporated by reference into the Management Unit Outline and City Personnel
Rules and Regulations.
(f) If available and budgeted, City will provide up to three thousand dollars
($3,000) per fiscal year for Employee's professional development expenses. Use of these
dollars shall be subject to the prior approval of the City Manager.
Page 3 of 7
Schwartz Employment Agreement
City of Rohnert Park
Page 4 of 7
5. INDEMNIFICATION.
In accordance with the terms, conditions, and limitations of the Government Claims Act
(Gov't Code §§ 810 et seq.), 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 Assistant City Manager. Based on its sole discretion, the City will determine whether
to compromise and settle any such claim or suit and the amount of any settlement or judgment
rendered thereon. Said indemnification shall extend beyond termination of employment, and
the otherwise expiration of this Agreement for any acts undertaken in his capacity as Assistant
City Manager, regardless of whether the notice of filing of a lawsuit for such tort, claim,
demand, or other legal action occurs during or following Employee's employment with City as
Assistant City Manager.
6. CONFLICT OF INTEREST PROHIBITION.
Employee represents and warrants to City that, to the best of his knowledge, he
presently has no interest, and represents that he will not acquire any interest, direct or indirect,
financial or otherwise, which would conflict in any manner or interfere in any way with the
performance of his duties under this Agreement.
7. CONFIDENTIAL INFORMATION.
"Confidential Information" is all non - public information pertaining to the business of
City (or any City affiliate), its employees, clients, consultants, or business associates, which
was produced by any employee of City in the course of his employment or otherwise produced
or acquired by or on behalf of City. Confidential Information shall include, without limitation,
proprietary information such as trade secrets, confidential financial data and formulae, attorney
client - privileged information, confidential licensing information, software and other computer
programs, copyrightable material, and other information exempt from production under the
California Public Records Act and /or the Freedom of Information Act. During his
employment by City, Employee shall disclose Confidential Information only for the benefit of
City and as may be necessary to perform his job responsibilities under this Agreement.
Following termination, Employee shall not disclose any Confidential Information, except with
the express written consent of City. Employee's obligations under this Section shall survive the
termination of his employment and the expiration of this Agreement.
8. OTHER TERMS AND CONDITION OF EMPLOYMENT.
The City Manager may fix any other terms and conditions of employment, as he or she
may determine from time to time, relating to the performance of Employee, provided such
terms and conditions are not inconsistent with provisions of this Agreement or law. Any
changes to the terms and conditions of employment will not be effective without a writing
signed by the City Manager and Employee, and approved by the City Council.
Page 4 of 7
Schwartz Employment Agreement
City of Rohnert Park
Page 5 of 7
9. GENERAL EXPENSES.
City recognizes and agrees to pay and /or reimburse Employee for reasonable and
necessary travel, subsistence and other business expenses incurred by Employee in the
performance of his duties with prior approval by the City Manager.
10. NOTICES.
Any notices required by this Agreement shall be in writing and either given in person or
by first class mail with postage prepaid and addressed as follows:
TO CITY: City Manager
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA94928
TO EMPLOYEE: Don Schwartz
Home Address on File with Human Resources
11. ATTORNEY'S FEES.
In the event of any mediation, arbitration or litigation to enforce any of the provisions of
this Agreement, each party shall bear its own attorney's fees and costs.
12. ENTIRE AGREEMENT.
This Agreement is the final expression of the complete agreement of the parties with
respect to the matters specified herein and supersedes all prior oral or written understandings,
and it may not be contradicted by evidence of any prior or contemporaneous statements or
agreements. Except as prescribed herein, this Agreement cannot be modified except by written
mutual agreement signed by both parties and approved by the City Council. To the extent that
the practices, policies, or procedures of City, now or in the future, apply to Employee, and are
inconsistent with the terms of this Agreement, the provisions of this Agreement shall control.
13. ASSIGNMENT.
This Agreement is not assignable by either City or Employee.
14. SEVERABILITY.
In the event that any provision of this Agreement is finally held or determined to be
illegal or void by a court having jurisdiction over the parties, the remainder of the Agreement
shall remain in full force and effect unless the parts found to be void are wholly inseparable
from the remaining portion of the Agreement.
Page 5 of 7
Schwartz Employment Agreement
City of Rohnert Park
Page 6 of 7
15. PROVISIONS THAT SURVIVE TERMINATION.
Some sections of this Agreement are intended by their terms to survive the Assistant
City Manager's termination of employment with the City, including but not limited to Sections
5. These sections, and the others so intended, shall survive termination of employment and
termination of this Agreement.
16. JURISDICTION AND VENUE.
This Agreement shall be construed in accordance with the laws of the State of
California, and the Parties agree that venue shall be in Sonoma County, California.
17. NO WAIVER OF DEFAULT.
The failure of any party to enforce against another party any provision of this
Agreement shall not constitute a waiver of that party's right to enforce such a provision at a
later time, and shall not serve to vary the terms of this Agreement.
18. EFFECTIVE DATE.
This Agreement shall be deemed effective on the 30th day of April, 2014
19. ACKNOWLEDGMENT.
Employee acknowledges that he has had the opportunity to consult legal counsel in
regard to this Agreement, that he read and understands this Agreement, that he is fully aware of
its legal effect, and that he has entered into it freely and voluntarily and based on his judgment
and not on any representations or promises other than those contained in this Agreement.
IN WITNESS WHEREOF, the City has caused the Agreement to be signed and
executed on its behalf by its City Manager. It has also been executed by Employee on the date
first above written.
Page 6 of 7
Schwartz Employment Agreement
City of Rohnert Park
Page 7 of 7
IC
JoAnne Buergler
City Clerk
APPROVED AS TO FORM:
C
Michelle Marchetta Kenyon
City Attorney
CITY OF ROHNERT PARK
Darrin Jenkins
City Manager
Per Resolution No. 2014 - adopted by the
Rohnert Park City Council on April 8,
2014.
EMPLOYEE
I:
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