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HomeMy WebLinkAboutReso 72-2004RESOLUTION NO. 72-2004 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN EMPLOYMENT AGREEMENT WITH BARRY NAGEL FOR THE POSITION OF CITY MANAGER AND EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO WHEREAS, the City Council wishes to employ Barry Nagel as City Manager and Executive Director of the Redevelopment Agency of the City of South San Francisco; and, WHEREAS, Barry Nagel desires to serve as City Manager and Executive Director of the Redevelopment Agency of the City of South San Francisco; and, WHEREAS, the City Council has reviewed and approved the Employment Agreement between the City and Barry Nagel, a copy of which is attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby approves the Employment Agreement attached hereto as Exhibit A; and, BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute said Employment Agreement on behalf of the City of South San Francisco. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a Regular meeting held on the 14th day of July ,2004 by the following vote: AYES: NOES: Councilmembers Joseph A. Fernekes, Richard A. Garbarino, and Pedro Gonzalez, and Vice Mayor Raymond L. Green and Mayor Karyl Matsumoto None. ABSTAIN: None. ABSENT: None. ATTEST: City Clerk EMPLOYMENT AGREEMENT THIS AGREEMENT, made and entered into at South San Francisco, Califomia, this th day of ,2004, by and between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation, hereinafter sometimes referred to as the "CITY", and BARRY NAGEL, an individual, hereinafter referred to as "NAGEL". WITNESSETH: WHEREAS, CITY requires the services of a person with proven executive and administrative qualifications to serve as the Executive Director of the Redevelopment Agency and City Manager under the Council-Manager form of government, as provided in Chapter 2.36 of the South San Francisco Municipal Code; and WHEREAS, CITY desires to employ the services of NAGEL as Executive Director of the Redevelopment Agency and City Manager of the City of South San Francisco, and further desires to assure the continuous service of NAGEL in such official capacities as provided for in the Municipal Code by establishing herein certain salary and benefits, and the other terms and conditions of his employment; and WHEREAS, NAGEL desires to accept employment as Executive Director and City Manager of the City of South San Francisco under the terms and conditions of employment as set forth herein; NOW, THEREFORE, in consideration of this Agreement, and the mutual promises, covenants and stipulations herein contained, the parties hereto agree as follows: SECTION 1. EMPLOYMENT: CITY agrees to employ NAGEL as City Manager of CITY and Executive Director of the South San Francisco Redevelopment Agency, conferring upon and delegating to NAGEL all of the duties, powers and responsibilities of City Manager and Executive Director as the same are, and may hereafter be, specifically prescribed in State law and the Municipal Code and the ordinances, resolutions, policies, rules and regulations as from time to time existing thereunder by action of the City Council and the Redevelopment Agency, and NAGEL accepts employment as City Manager of the City of South San Francisco and as Executive Director of the Redevelopment Agency and agrees to serve as such commencing September 1, 2004. SECTION 2. TERM, TERMINATION AND SEVERANCE PAY: A. The term of this Agreement shall be from September 1, 2004, through August 31, 2006. NAGEL agrees to remain in the exclusive employ of the CITY until the termination date set forth herein, and neither to accept other employment, nor to become employed by any other employer until said termination date. B. To provide an incentive to NAGEL to remain steadily in the employ of the CITY, the CITY agrees that its City Council will review this Agreement annually on its anniversary date for the purpose of determining its extension for an additional 12-month period, to expire 24 months thereafter. Any such extension shall be memorialized in writing as an amendment to this Agreement and must be approved by the CITY and NAGEL. The terms and conditions contained herein shall apply during any such extension, except as modified in the contract amendment. C. Pursuant to Municipal Code §2.36.010, NAGEL serves at the pleasure of the Council. Therefore, nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City to terminate the services of NAGEL at any time by a majority vote of the entire City Council, subject only to the provisions set forth in this Agreement. D. In the event that the CITY chooses to involuntarily terminate NAGEL per Section 2 C of this Agreement, NAGEL shall be given written notice of the effective date of termination. Said termination date shall either be the termination date of the then applicable contract or, at the election of a majority of the City Council, NAGEL may be given severance pay in an amount equal to his regular compensation at whatever pay level NAGEL is at the time of his involuntary termination for the remainder of his contract term, not to exceed twelve months from the effective date of termination. Under this second option, NAGEL shall also be entitled to the retirement benefits specified in Sections 4 for the remainder of his contract term, not to exceed twelve months from the effective date of termination. Pursuant to Government Code section 53261, City agrees that Nagel may elect to have health benefits continued for the same duration of time as would be used to calculate the severance pay period, provided that such health benefits shall terminate at such time as Nagel finds other employment. City further agrees that if City, at the time of NAGEL's evaluation after one year of service, elects to extend the term of this Agreement, the time period for the severance benefit shall increase to a not to exceed level of eighteen (18) months and to be applied in the same manner as set forth hereinabove. E. Involuntary termination as used in this Section 2 means: (1) NAGEL'S discharge or dismissal by the City for reasons other than those set forth in the following sentence, or (2) NAGEL'S resignation following a salary reduction greater in percentage than an across-the-board reduction in salary for all miscellaneous employees, or (3) his resignation following a request by the City Council, approved by majority vote, that he resign. "Involuntary Termination" does not include NAGEL'S death, incapacity due to an injury/or illness (physical or mental), dismissal based on court finding of willful misconduct, or malfeasance, or following conviction of a. felony or misdemeanor involving moral turpitude or dishonesty for personal gain, or dismissal for breach of a term of condition of this agreement. In the event NAGEL is terminated for reasons other than those defined as involuntary termination herein, the City shall have no obligation to provide any severance payment. F. In the event NAGEL desires to voluntarily resign his position with City, NAGEL shall give the CITY ninety (90) days notice in advance, unless the parties agree otherwise. In the event NAGEL voluntarily resigns, he shall not be entitled to any payment pursuant to Section 2.D. herein. SECTION 3. SALARY: A. (1) CITY agrees to pay NAGEL for his services rendered pursuant hereto, an annual salary of One Hundred Eighty One Thousand One Seven Hundred Sixty dollars ($181,760) payable in installments at the same time other employees of the CITY are paid. SECTION 4. RETIREMENT: A. NAGEL shall be covered by the retirement program (i.e., Public Employees' Retirement System - P.E.R.S.) by which all other "miscellaneous employees" of the CITY are covered. B. The CITY shall pay to NAGEL his share (currently 8%) of the retirement system costs. CITY and NAGEL hereby acknowledge and agree that the salary amount set forth in Section 3A includes NAGEL'S share of the PERS retirement system contribution. All such retirement system costs shall be paid to NAGEL at the same time as the CITY'S contributions are made to the system for all other employees. SECTION 5. OTHER BENEFITS AND WORK1NG CONDITIONS; A. NAGEL shall be entitled to and shall receive all employment benefits enjoyed by the CITY'S Executive Management Group, including, but not limited to such benefits as holidays, retirement, workers' compensation, sick leave, administrative leave, health, life and other insurance coverage. With regard to administrative leave, NAGEL shall be entitled to receive 80 hours of administrative leave per year. Nagel shall be allowed to redeem, for cash value, up to 80 hours of administrative leave per year. NAGEL shall retain and have available for his use any accrued balances of vacation, administrative leave or sick leave earned prior to his assuming the office of City Manager. B. NAGEL shall not teach, consult or perform other non-City-connected business or employment without the express prior approval of the City Council. SECTION 6. PERFORMANCE EVALUATION: A. Within sixty (60) days of the commencement of NAGEL'S employment and annually thereafter, the City Council and NAGEL shall define such goals and performance objectives which they determine necessary for the proper operation of the City in the attainment of the City Council's policy objectives. The City Council and NAGEL shall further establish a relative priority among those various goals and objectives, which will be reduced to writing. B. The City Council shall review and evaluate the performance of NAGEL after six months of service and after one year of service, in accordance with specific criteria and performance expectations as developed jointly by the City Council and NAGEL. Thereafter, the City Council shall review and evaluate the performance of NAGEL on an annual basis. Such criteria may be added to or deleted as the City Council may from time to time determine in consultation with NAGEL. SECTION 7. AUTOMOBILE: A. CITY shall provide NAGEL the exclusive and um'estricted use of an automobile for use in the course and scope of employment, for transportation to and from work and for incidental personal use within the City and those cities adjacent to South San Francisco. CITY shall be responsible for the lease or purchase payments, fuel, maintenance and insurance for said CITY-provided vehicle. In addition, CITY agrees to furnish and assume the monthly operating costs for a cellular telephone for business-related calls. SECTION 8. DUES AND SUBSCRIPTIONS: Subject to the Council's discretionary annual budget appropriation, CITY agrees to pay for the professional dues and subscriptions of NAGEL necessary for his continuation and full participation in a maximum of two (2) national, regional, state and local associations and organizations necessary and desirable for his continued professional participation, growth and advancement, and for the good of the CITY. SECTION 9. PROFESSIONAL DEVELOPMENT: A. Subject to the Council's discretionary annual budget appropriation, CITY hereby agrees to budget for and to pay the travel expenses of NAGEL for professional and official travel to conferences/meetings necessary and desirable to continue the professional development of NAGEL for a maximum of two conferences/meetings per year. B. CITY also agrees, subject to Council's discretionary annual budget appropriation, to pay for NAGEL to attend local bay area courses, institutes and seminars that are necessary for his professional development and for the good of the CITY. SECTION 10. PHYSICAL EXAM: CITY shall pay the full cost of an annual physical exam for NAGEL. SECTION 11. APPOINTMENTS: Notwithstanding any other provisions of the Municipal Code, prior to appointing or extending an offer for employment to any City Department Head, NAGEL shall schedule and meet with the entire City Council in executive session and during such session discuss the qualifications of the candidates for the position and consider City Council input. SECTION 12. INDEMNIFICATION AND BONDING: A. CITY shall defend, hold harmless and indemnify NAGEL 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 NAGEL'S duties in accordance with the provisions of California Government Code section 825. NAGEL'S conviction for a felony or misdemeanor shall be a basis for CITY'S exemption of this indemnification. CITY may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered therefrom. B. CITY shall bear the full cost of any fidelity or other bonds required of NAGEL under any law or ordinance. SECTION 13. NOTICES: Notices pursuant to this Agreement shall be given by deposit in the United States Postal Service, postage prepaid, addressed as follows: (1) CITY: Mayor City of South San Francisco P.O. Box 711 - 400 Grand Avenue South San Francisco, California 94083 (2) NAGEL: Barry Nagel City Manager P.O. Box 711 - 400 Grand Avenue South San Francisco, California 94083 Alternatively, notices required pursuant to this Agreement may be personally served in the same manner as applicable to civil judicial process. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the United States Postal Service. SECTION 14. ATTORNEY'S FEES: In the event it becomes necessary for either CITY or NAGEL to bring a lawsuit to enforce any of the provisions of this Agreement, the parties agree that a court of competent jurisdiction may determine and fix a reasonable attorney's fee to be paid the prevailing party. SECTION 15. GENERAL PROVISIONS: A. The text herein shall constitute the entire Agreement between the parties. B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of NAGEL. C. This Agreement shall become effective commencing September 1, 2004. D. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall remain in full force and effect except that either party may terminate this Agreement after providing six (6) months notice if the provision found to be illegal or unenforceable is deemed to be a material aspect of the Agreement. Termination of the Agreement under this subdivision shall not give rise to the severance provision of this Agreement. IN WITNESS WHEREOF, the City of South San Francisco and the City's Redevelopment Agency have caused this Agreement to be signed and executed in its behalf by its Mayor and Chairperson and duly attested by its City Clerk, and NAGEL has signed and executed this Agreement. CITY OF SOUTH SAN FRANCISCO By: KARYL MATSUMOTO, Mayor and Chairperson, City of South San Francisco/South San Francisco Redevelopment Agency By: BARRY NAGEL ATTEST: City Clerk APPROVED AS TO FORM: City Attorney