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2003/01/07 City Council ResolutionRESOLUTION NO. 2003 -03 A RESOLUTION OF THE COUNCIL OF THE CITY OF ROHNERT PARK APPROVING AN AMENDMENT TO THE EMPLOYMENT AGREEMENT WITH JOSEPH D. NETTER BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby authorize and approve the Amendment to the Employment Agreement for Services of a City Manager entered into on April 28, 1998 by and between Joseph D. Netter and the City of Rohnert Park, a municipal corporation. BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to execute same for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 7`h day of January, 2003. CITY OF ROHNERT PARK ,,� 14 ( '�A4' T, i"L� Mayor A'iTTVQT- FLORES: AYE MACKENZIE: NO NORDIN: AYE SPRADLIN: AYE VIDAK- MARTINEZ: AYE AYES: (4) NOES: (1) ABSENT: (0) ABSTAIN: (0) JH- h:010703 Resol Approving JNetter Resignation Agreement AMENDMENT TO EMPLOYMENT AGREEMENT FOR SERVICES OF A CITY MANAGER This is an Amendment (Amendment) to the Employment Agreement For Services Of A City Manager ( "Agreement ") entered into and between Joseph D. NETTER ( "NETTER ") and the City of Rohnert Park ( "CITY") on April 28, 1998. This Amendment is effective as of the seventh day of January 2003 though executed on another date. GENERAL RECITALS WHEREAS, NETTER and CITY entered into an Employment Agreement For Services of A City Manager on April 28, 1998 which provided NETTER was employed as the City Manager of the City of Rohnert Park at a certain salary and with benefits all as described in the Agreement on file with the City Clerk ( "Agreement ") and as approved in City Resolution No. 98 -89; and WHEREAS, the CITY and NETTER desire to enter into this Amendment to the Agreement to accommodate the parties' agreements and understandings of NETTER' S current and future employment status; and, WHEREAS, CITY does not desire to disparage NETTER in any respect regarding his past professional performance and contributions to the City of Rohnert Park as City Manager; and WHEREAS, except as specifically amended herein the parties intend all other terms and provisions of the Agreement shall remain unchanged and in full force and effect until April 16, 2003 as provided in Section Seven B. AGREEMENT NOW, THEREFORE, NETTER and the CITY, in consideration of the promises herein, amend the Agreement as follows: Section One. Administrative Leave. NETTER shall be on administrative leave from 2:00 p.m. January 3, 2003 through 5:00 p.m. April 15, 2003 ( "Period of Administrative Leave "). NETTER shall submit all keys and any other devices that provide access to CITY facilities to the Acting City Manager upon execution of this Agreement by both parties. With the exception of the CITY owned Jeep Cherokee SUV, used by NETTER for CITY business, NETTER shall return all property that belongs to the City of Rohnert Park or any of its agencies, boards or commissions, or any agency, board or commission of which it is a member, to the Acting City Manager upon execution of this Agreement by both parties. During the Period of Administrative Leave, NETTER agrees not to exercise any of the powers, duties, functions, of the City Manager for the City of Rohnert Park, nor shall NETTER have any power or authority to bind the City of Rohnert Park. 5VI 41 Any such exercise of the powers, duties or functions of the City Manager shall be outside the course and scope of NETTER' S employment effective January 3, 2003. Section Two. Separation Effective Date. NETTER' S last day of employment in his position as City Manager of the City of Rohnert Park shall be April 15, 2003, which shall be the final day that NETTER is employed by the City of Rohnert Park. Section Three. Payments. CITY shall make the following payments: A. During the Period'of Administrative Leave. CITY during the period from January 16, 2003 through April 16, 2003 shall continue to compensate NETTER in the same amount and in the same manner as immediately preceding CITY'S Action on January 3, 2003 pursuant to the Agreement. B. Severance Settlement Cash Payment. a) Upon execution of this Amendment by both parties and as required in Section Three B (b), CITY shall pay NETTER the amount of $322,922.63 less three months salary and benefits in the liquidated sum of $41,827.38 paid as required by Section Three A above for the net total of $281,095.25 which is comprised of: (1) The cash value of accrued industrial and non- industrial sick leave; (2) The cash value of vacation accrued prior to April 1, 1998 calculated to be $21,720.58 ( "Banked Vacation "); (3) The cash value of vacation accrued after April 1, 1998 calculated to be $29,029.07 ( "Accrued Vacation "); (4) The cash value of three months severance pay calculated in the same manner and amount as immediately preceding the CITY's Action on January 3, 2003; (5) The cash value of 120 hours of administrative leave, calculated to be $8,196.44. b) CITY shall pay NETTER the sum of $281,095.25 (sum referenced in B.a) above) as follows: (1) (a) The payment by CITY for NETTER accrued vacation (425 hours), banked vacation (318 hours), administrative leave (hours), totaling 863 hours convert to the net sum of $58,946.09, which will be payable to NETTER as a salary continuation payable semi - monthly on the 15th and last day of each month commencing April 16, 2003 and continuing through September 15, 2003. CITY shall continue PERS contributions during the period of NETTER' S salary continuation for each payment to insure NETTER receives PERS retirement credit. (b) In the event NETTER secures employment as an employee with another public entity which is a member of PERS and that entity provides PERS benefits to its employees, NETTER agrees CITY shall discontinue the salary continuation payments, at the date agreed to by NETTER, and CITY shall timely pay NETTER any unpaid balance of all remaining unpaid hours under Section Three B. b) (1)(a) upon NETTER' S request within ten (10) business days. In no event shall CITY be obligated to continue PERS contributions to insure NETTER receives PERS retirement credits after the first day NETTER is an employee of another public entity which is obligated to make PERS contributions for NETTER as an employee. (2) The balance of the $281,095.25 severance settlement cash payment in the sum of $222,149.16 shall be payable by CITY to NETTER at NETTER' S option, either in full upon execution of this Agreement by both parties or in the alternative one -half payable upon execution of this Agreement by both parties with the remaining one -half balance to be paid on January 2, 2004 and not sooner. C. Dental, Health, Life Insurance, Vision, Other Medical Insurance and Other Benefits. Since NETTER had completed in excess of ten (10) years of CITY service prior to 1993, upon separation from the CITY, NETTER shall receive lifetime benefits of health, medical, vision, dental, life insurance and other benefits without the requirement of age or retirement in the Public Employees Retirement System (PERS), as provided other retired CITY management employees in accordance with Section 6.20 (a) and Section 8 of the Memorandum of Understanding with nonrepresented employees, July 1997 -1998, and Resolution 90 -267 for former retired City Manager. 2. NETTER agrees to apply, when he is eligible, for benefits under Medicare so as to minimize the cost to CITY of providing health benefits to NETTER and /or his spouse. CITY shall to timely reimburse NETTER for any enrollment costs, fees, or premiums imposed by Medicare or such other similar program which may replace it upon written request. Deferred Compensation. NETTER shall retain his rights, entitlements, ownership, and interest in the deferred income accounts in his name which the CITY has with the ICMA Retirement Corporation or any successor Trustee or Administrator. Section Four. Other Benefits. A. NETTER shall have the option to purchase the Jeep Cherokee SUV automobile now used by NETTER. The purchase price shall be forty - percent of the $10,683.00 value for a like vehicle as listed in the current Edmunds Auto Internet Appraisal Service. The option must be exercised in writing prior to 5: 00 PM on April 15, 2003. In the event NETTER does not exercise his option to purchase the 1999 Jeep Cherokee SUV in accordance with this paragraph on or before 5: 00 PM on April 15, 2003, NETTER shall return the vehicle in a condition that is substantially similar to the vehicle's condition as existing on January 3, 2003. B. NETTER and his eligible dependents, as provided in the CITY Management Outline (at page 12), shall have the right to use of the open gym, weight room, and locker room facility at the City Sports Center and to participate in the lap swim program at no cost. Section Five. CITY'S Cooperation. CITY agrees; A. City council members may provide letters of reference and /or recommendations to assist NETTER in obtaining comparable employment and salary/benefits package to that which he was provided under the Agreement as of January 3, 2003. B. CITY shall seal and maintain NETTER'S personnel, employment and health records confidential and private as required by applicable law and which records and files shall not be released without NETTER' S written authorization. C. CITY will in no way directly or indirectly interfere with, undermine or change NETTER' S rights and entitlements under the terms of the Agreement as amended by this Amendment. D. CITY shall cause to be signed a letter of reference as may be attached for NETTER' S use in pursuing employment opportunities with salary/benefits comparable to that he was provided under the Agreement as of January 3, 2003. Section Six. Indemnification. In accordance with the state and local law to include the Government Torts Claims Act, CITY shall pay, defend, save harmless, and indemnify NETTER against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of any alleged act or omission occurring in the performance of NETTER' S duties as City Manager though and including April 15, 2003. CITY will compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered thereon. This section is not intended to modify, expand, or diminish the obligations of CITY under the Government Tort Claims Act or to modify, expand, or diminish NETTER' S rights to indemnification as provided in the Agreement. Section Seven. Employment Agreement For Services As A City Manager. A. Notwithstanding any other provision herein to the contrary, if the provisions of this Amendment or the Agreement differ or are in conflict with CITY'S personnel rules and regulations, the CITY Code or other rules, then the provisions of the Agreement as amended by this Amendment shall prevail. The provisions of this Amendment and its executory provisions shall survive termination of the Agreement and shall continue beyond April 15, 2003. B. Except as to CITY'S continuing obligations and duties to NETTER pursuant to and under this Amendment, the Agreement shall be of no further force and effect and shall be considered terminated on and after April 16, 2003. If CITY breaches any term of this Amendment then NETTER shall be entitled to all remuneration, payments and benefits provided NETTER under the Agreement to the extent they do not duplicate the remuneration, payments and benefits received by NETTER under this Amendment. Section Eight. Attorney Fees. Except as otherwise agreed herein, in the event of a dispute or claimed breach of any term or condition this Amendment and if litigation should result, the prevailing party shall be entitled to reasonable attorney's fees and costs as may be awarded by the Court. 5 q�� Section Nine. Miscellaneous. A. Should any provision of this Amendment be invalid or unenforceable, the remaining provisions shall remain in full force and effect. B. The phrase "execution of this Agreement by both parties" shall include and require a resolution of a majority vote of CITY'S Council approving the provisions of this Amendment. IN WITNESS WHEREOF NETTER has signed and CITY, following a duly passed resolution approving the above terms has directed its authorized representative to sign this Agreement. THE CITY OF ROHNERT PARK, CALIFORNIA A Municipal Cor oration Dated: January 14, 2003 By (G 16C VIC VIDAK MARTINEZ Mayor CITY (Authorized by Resolution No. 2003 -03) __ A , Dated: January 14, 2003 Attested By: I., I To I JuD' Deputty Clerk Dated: January 14, 2003 V APPROVED AS TO FORM: Dated: January 14, 2003" BkTSYS RAUSS Attorney for The City of Rohnert Park, California 2