HomeMy WebLinkAboutAgenda Report - February 5, 2014 I-01AGENDA ITEM -0
A% CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Appointing D. Stephen Schwabauer as Interim City Manager and
Approving the Related Employment Agreement
MEETING DATE: February 5, 2014
PREPARED BY:
City Manager
RECOMMENDED ACTION: Adopt Resolution Appointing D. Stephen Schwabauer as Interim
City Manager and approving the related employment agreement.
BACKGROUND INFORMATION: Pursuant to direction received at the Closed Session meeting held
on January 14, 2014, a draft employment agreement with D.
Stephen Schwabauer is attached for Council consideration and
approval. The interim position will receive a ten percent increase in
pay over the City Attorney position. Mr. Schwabauer would revert
to City Attorney in the event the Interim City Manager contract is
terminated or expires.
FUNDING: Mid -year appropriation from budget savings in City Manager salary.
FISCAL IMPACT: $14,000.
1?-o'nFa& Bart
City Manager
APPROVED: ,: \ J - -- —
onradt Bartlam, City Manager
RESOLUTION NO. 2014-19
A RESOLUTION OF THE LODI CITY COUNCIL
APPOINTING D. STEPHEN SCHWABAUER TO
THE POSITION OF INTERIM CITY MANAGER AND
APPROVING THE EMPLOYMENT CONTRACT
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
appoint D. Stephen Schwabauer to the position of Interim City Manager for the City of
Lodi; and
BE IT FURTHER RESOLVED that the City Council hereby approves the
employment contract attached hereto marked as Exhibit A.
Dated: February 5, 2014
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I hereby certify that Resolution No. 2014-19 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held February 5, 2014, by the following
vote:
AYES: COUNCIL MEMBERS — Hansen, Johnson, Nakanishi, and
Mayor Katzakian
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Mounce
ABSTAIN: COUNCIL MEMBERS — Non&JOHL-OLSON
City Clerk
2014-19
[E r'
TXt8 � Y
EMPLOYMENT AGREEMENT
(Interim City Manager)
This Employment Agreement ("Agreement") is made and entered into effective as of February 6,
2014, by and between the City of Lodi, a municipal corporation, hereinafter called "City," and
D. Stephen Schwabauer, hereinafter called "Employee," both of whom agree as follows:
RECITALS
WHEREAS, City desires to retain the services of Employee on an interim basis to perform the
functions of the City Manager; and
WHEREAS, Employee is agreeable to serving as Interim City Manager on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. GENERAL:
City hereby agrees to employ Employee as the Interim City Manager of the City
commencing on February 6, 2014 and Employee agrees to perform the functions and duties
of the Interim City Manager as of that date.
2. DUTIES AND RESPONSIBILITIES:
(a) Employee shall perform all the duties of the City Manager as of the date set forth in
Section 1.
(b) Employee shall serve as the City Manager of the City and he shall be vested with the
powers, duties, and responsibilities set forth in the Lodi Municipal Code and the laws
of the State of California. Employee shall perform the functions and duties specified
under the laws of the State of California; the Lodi Municipal Code; the Ordinances
and Resolutions of the City; and such other duties and functions as the City Council
may from time -to -time assign.
(c) Employee agrees to devote his productive time, ability, and attention to the City's
business. For the duration of this Agreement, Employee shall not hold secondary
employment, and shall be employed exclusively by the City, subject to any
exceptions approved in writing by the City Council. As an exempt employee,
Employee shall not receive overtime or extra compensation for work performed
outside normal business hours.
(d) Employee has discretion as to his work schedule but must devote an average of at
least forty (40) hours per week to the job.
1077583.4
3. COMPENSATION:
During the term of this Agreement, City agrees to pay Employee an annual salary of
$154,000 per year (which is a 10% increase over Employee's salary as City Attorney).
Employee shall continue to receive the benefits of the Employer paying all traditional
employer costs, including, without limitation, FICA, Medicare, unemployment
compensation, and workers' compensation, as set forth in the City Attorney Agreement,
dated July 21, 2004, as amended by the attached addenda and City Council Resolutions, all
attached hereto as Exhibit A and incorporated herein (the "City Attorney Agreement").
4. EXPENSES:
Employee shall be reimbursed by City for reasonable out-of-pocket expenses incurred in the
course and scope of his employment in accordance with City reimbursement policies.
Employee shall not be provided an automobile or automobile allowance, but Employee shall
be reimbursed for travel expenses in accordance with City's travel policies.
5. BENEFITS/INSURANCE/RETIREMENT:
During the term of this Agreement, Employee shall continue to receive the identical benefits
as set forth in the City Attorney Agreement. Employee shall retain all benefits with the City
accrued as of the effective date of this Agreement.
6. TERM:
The term of this Agreement will expire on August 6, 2014, unless extended or terminated
earlier as provided in this Agreement.
7. TERMINATION:
Notwithstanding the term of this Agreement, as set forth in section 6, either party may
terminate this Agreement earlier than the expiration of the term as follows:
(a) Termination by Employee: Employee may terminate this Agreement, with or
without cause, by giving the City a minimum of twenty-one (21) days' written notice
in advance of termination. During the notice period, all the rights and obligations of
the parties under this Agreement shall remain in full force and effect and Employee
shall be entitled to all earned compensation.
(b) Termination by City: Employee is an at -will employee, and Employee acknowledges
such. The City Council may terminate this Agreement at any time, with or without
cause. Notice of termination shall be given to Employee in writing. As used in this
section, "cause" shall mean one or more of the following: (i) conviction of a felony;
(ii) continued abuse of non-prescription drugs or alcohol that materially affects the
performance of the City Manager's duties; (iii) repeated and protracted unexcused
absences from the City Manager's office and duties; or (iv) gross mismanagement
and/or acts of moral turpitude (including, but not limited to, a misdemeanor arising
out of Employee's duties pursuant to this Agreement, willful abandonment of duties,
1077583.4 2
or a pattern of repeated, willful, and intentional failure to carry out the clear,
unambiguous, materially significant and legally constituted policy decisions of the
City Council). In the event of a termination without cause, the City Council shall
endeavor, but shall not be required, to provide Employee a minimum of fourteen (14)
days' written notice in advance of termination. During the notice period, all the
rights and obligations of the parties under this Agreement shall remain in full force
and effect and Employee shall be entitled to all earned compensation. In the event
the City terminates this Agreement for cause, then the City may terminate this
Agreement immediately:
8. MODIFICATIONS:
No modification of this Agreement shall be valid unless said modification is in writing and
signed by both parties.
9. CONFLICT OF INTEREST:
Employee shall also be subject to the conflict of interest provisions of the California
Government Code and any conflict of interest code applicable to his City employment.
Employee is responsible for submitting to the City Clerk the appropriate Conflict of Interest
Statements at the time of appointment, as periodically required by law thereafter, and at the
time of separation from the position.
10. INDEMNIFICATION:
In accordance with and subject to the provisions of California's Government Claims Act
(Government Code § 825, et seq.) and any other applicable law, City shall defend, indemnify,
and hold harmless Employee in any civil action against and for all losses sustained by
Employee in direct consequence of the discharge of his duties on the City's behalf for the
period of his employment. City shall defend, indemnify, and hold harmless Employee
against any tort, professional liability claim or demand or other civil legal action, whether
groundless or otherwise, arising out of an alleged act or omission occurring in the
performance of his duties as City Manager. City may compromise and settle any such claim
or suit and pay the amount of any settlement or judgment rendered thereon. Whenever
Employee shall be sued for damages arising out of the performance of his duties, the City
may provide defense counsel for Employee in such suit and indemnify him from any
judgment rendered against him; provided that such indemnity shall not extend to any
judgment for damages arising out of any willful wrongdoing. Said indemnification shall
extend beyond termination of employment and the otherwise expiration of this Agreement to
provide protection for any such acts undertaken or committed in his capacity as City
Manager, regardless of whether the notice of filing of a lawsuit occurs during or following
employment with the City.
11. ABUSE OF OFFICE
Any severance payments or cash settlement paid in relation to the termination of this
Agreement, and any legal criminal defense payments made by the City in the defense of
Employee, if any, are subject to, and shall be interpreted to comply with, the limitations set
1077583.4
forth in Government Code section 53260, concerning the maximum cash settlement in an
employment contract, and Government Code sections 53243 through 53243.4, limiting
and/or restricting payment or continued retention of severance payments and/or legal
criminal defense payments should Employee be convicted of a crime involving an abuse of
office or position. "Abuse of office or position" for purposes of this Agreement, shall be as
defined in Government Code section 53243.4 which provides: "`abuse of office or position'
means either of the following: (a) An abuse of public authority, including, but not limited to,
waste, fraud, and violation of the law under color of authority. (b) A crime against public
justice, including, but not limited to, a crime described in Title 5 (commencing with Section
67) or Title 7 (commencing with Section 92) of Part I of the Penal Code."
12. EFFECT OF CITY ATTORNEY AGREEMENT:
Except as set forth herein, the terms and conditions of the attached City Attorney Agreement
shall be tolled, stayed, and held in abeyance during the pendency of this Agreement. The
City Attorney Agreement shall be immediately reinstated upon the termination of this
Agreement, regardless of whether this Agreement is terminated by Employee or the City
(with or without cause), by expiration of the term, or otherwise.
IN WITNESS WHEREOF, City and Employee enter into this Agreement as of the day and year first
above written.
CITY OF LODI, a municipal corporation
By:
PHIL KATZAKIAN, Mayor
1077583.4 4
EMPLOYEE
By:
D. STEPHEN SCHWABAUER
APPROVED AS TO FORM:
JONATHAN P. ROMS
Kronick Moskovitz Tiedemann & Girard
JEXH I B A
CITY ATTORNEY EMPLOYMENT AGREEMENT
This Agreement is made and erit*d into as. of July 21, 2004, by and between the, City of
Lodi, a municipal corporation:.;_ here] called "City" ?nd D. Stephen Schwabauer,
hereinafter called `Employee," both: of vholu agree as follows:
RECITALS:
It is the desire of the City to wotair the services:of.tplvyee.d to provide'inducement
..for him to remain in such a it ioyznerit,.mare:possilsle full worlZ pxoduc#ivity by assuring
Employee's morale and peace:; f:nxipd: with ospgot to future seW ty and to provide a
just means for terminating EW loyde'a-:ser im.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. GENERAL:
City hereby agrees to employ Employee as the City Attorney of City and Employee
agrees to perform the functions and duties the City Council shall from time to time
assign to him.
2. DUTIES & AUTHORITY:
Employee has the duty to:
(a) Perform the functions and duties of a City Attorney as specified in the California
Government Code, Rules of Professional Conduct for Attorneys, City Ordinances,
Resolutions, Mules and Regulations and other state and local statutes,
(b) Act as chief legal advisor to City,
(c) Perform all legally permissible and proper duties and functions as the City
Council shall assign. Such duties may be modified from time to time upon such
terms as are mutually agreeable to City and Employee, and
(d) Employee in coordination with the City Manager 9l -oI .recorrm -od. p*.OI ics; and:
rales and regulations to implement City 004mU pad ioens;awl'
policies established by the City Council. To aecorrpli's this; "Errpoyee: $h*
have the power to and shall be required to:
(1) Attend City Council meetings as needed by the City Council.
774197. 1
(2) Review all documents agendized for any special and/or regular meetings
of the City Council. Employee may make recommendations to the City
Manger and the Council concerning any agenda items.
3. EXCLUSIVE EMPLOYMENT:
(a) Employee has the duty and herein commits to devote his full time and energies in
the best interest of the City, and to act in - accordance with the duties and
responsibilities of the position of City Attorney.
(b) Employee shall not accept emploppbriias: an attorney of law frons:ox on;bcllalf.of
any person, firm, corporation or entity ckurig: the tcxiii af'ibs<Agreemet:. The
-foregoing shall not he construed to prevent gm loyee fromt pefforz &-yid f r
community service, or pro bono seces�: pproid: ed. Elaiplaee: sitll, prior to
performing such services, disclose such antieipated services to th C j. Ott a
and obtain its approval. Such outside services shall not create nor tend to create a
disqualifying conflict of interest as defined by the California Political Reform Act
of .1974, as amended, nor shall such services impair Employee's al?ility to fully
perform his duties for City hereunder.
4. EMPLOYEE COMMITMENTS:
(a) Spedit. flasks. anis, Work. Plans: - Employee agrees to accomplish specific tasks as
speEzfieiantl desetibgo.by the, qV Cddacil from time to time in a timelyand
ppo fsioial iiiitier:� >c speeile .tasks shall be discussed with Employee and
alien adaptes3i::tzy.rirnorion .4-y. the City Council as frequently as the City Council may
choose.
(b) Hout`s.of ozk Eaploye is .:an. exempt employee who does not accrue
vornposatary bine: off; lil t, isi; expected to engage in those hours of work which
are ieceasai! to fiitll. the Qftatiatsof his position. Employee does not have set
hours of work as he is expected to be available at all times, Itis recognized that
Employee must devote a great deal . zf:W. t tinxe outside " normal office hours" to
the business of the City, and to that <ez`i.Eznplayee's Scedrie,.af work each day
and week shall vary in accordance wiib. the:work. requited :tv btperformed, The
Employee has discretion as to his worm schedule.
5. CITY COMMITMENTS:
(a) City shall provide Employee with an office, support staff, office equipment,
supplies and all other facilities and services adequate for the performance of his
duties.
(b) City shall pay for, or provide, Employee reimbursement of actual business
expenses. The City shall provide Employee with a City credit card to charge
774197. I
2
appropriate and lawful business expenses yip to the amount provided for in the
City budget.
(c) City agrees to pay for Employee's California State Bar, National Institute of
Municipal Law Officers dues and subscriptions, and Minimum Continuing Legal
Education expenses (MCLE).
(d) City agrees to pay the professional dues and aubseriptions'on b.ehsJf df Em#layee
which are necessary for Employee's :contiwation_ and full: participation in
national, regional, state, or local associations ansa* orga nations n6cessaiy and
desirable. for the,.good of the City, and for Employee's continued professional
participation and advancement app to an amount provided for in the City budget.
(e) City agrees to pay travel and subsist"exponse�s bft ployee to :pursueotfiexal.
and other functions fpr the City, A;4 :meeghgs, an&oc anions .td: continue. the<
professional developiAent of -Employee,. bic but; :not lit# teff: to :Aiaz>tral.
Conferences of the League of California Cities and the League's City Attorney's
Division, the Annual Conference of the National Institute of Municipal Law
Officers, and other national, regional, state, and local conferences, and
governmental groups and committees upon. which Employee serves as a member
up to an amount provided for in the City budget.
(f) City recognizes the desirability of representation in and before local civic and
other organizations, and Employee is authorized' to become a member of civic
-clubs or organizations, for which the City shall p ay membership dues up to an
amount provided for in the City budget.
b. MUTUAL COMMITMENTS:
Performance Evaluation — Annual performance evaluations are an important way
for the City Council and Employee to ensure effective communications about
expectations anti' per0Miq"e; Tke C W Council recognizes that for Employee to
respond to their rtbeds;. -te .grm in. -the performance of his job, he, needs to know
how the City 'Cd., 11if ri bs~r tli nk . e `is performing. To assure Employee gets
this feedback, the City. Council commits to:
(a) Conduct an evaluation of Employee's performance at least annually, or on any
other schedule deemed appropriate by the City Council. The City Council may
use an outside facilitator to assist them in conducting this evaluation.
(b) The annual review and evaluation shall be in accordance with specific criteria
developed jointly by the City Council and Employee. Such criteria may be added
to or deleted as the City Council may from time to time determine in consultation
with Employee.
(c) The City Council and Employee shall define such goals and performance
objectives which they determine necessary for the proper operation of the City for
774197.1
3
the attainment of the City Council's policy objectives. The City Council and
Employee shall further establish a relative priority among those various goals and
objectives.
7. COMPENSATION:
City agrees to provide the following conipensation. to Employee during the term of
the Agreement:
(a) -Ogso Salary — B�:-pqyee dl .be an annual t salary of $125,000 per year
Wb sum may be adjusted from time to time as
p
rov-1d.0- in ftk AgreabWt by-,,abbn.. of the City Council, payable in twenty-six
-
(26) enstaI i el is o sane mai Tier as City departinent heads.
(b) Th , e City shall pay all traditional employer costs required by laW, including but
not limited to: FICA, Medicare, Unemployment Compensation, and workers
compensation.
(c) Future annual adjustments to Employee's salary shall be set by City Council
action. City may not reduce salary or benefits provided by this Agreement unless:
(i) it doe's so on a Citywide (all Management employees) basis; or,
(ii) it does so:41.crp. -Eriploy .with a'written performance evaluation
rpy ee
process that.prov.%'. dim 6 and opportunity forimprovement pror to
any action to'..'i
S. AUTOMOBILE:
Employee shall not be provided an automobile or automobile allowance. Employee
shall be reimbursed for travel expenses in accordance with City's travel policies.
9. GENERAL EXPENSES:
Employee shall be permitted to attend qppfe. . : sbimJs' MWot other. such
ch
meetings,- the reasonable costs of which EM 1ipy—":shW1 also
be reimbursed by City for reasonable out of p6*0 eV0n9ft-- mou! U.-WI-in1ho course
and scope of his employment.
10. BASIC BENEFITS:
(a) Holidays - Employee shall receive thirteen and one half (13 Y2) paid holidays per
year credited in the same manner as all other City employees. '
(b) Vacation Leave - Employee shall be granted paid vacation leave in the amount of
15 days per year at the same rate of accumulation granted all other City
774197. 1
4
employees. Upon termination or resignation of employment, Employee or those
entitled to his estate, shall receive a lump sum payment for unused or accumulated
vacation time to his credit at his rate of pay as of his date of termination.
(c) Sick Leave - Employee shall be granted 12 days of sick leave per year which -will
accrue at a rate of 3.08 hours p er p ay p eriod. Employee's sick leave shall be
convertible as.provided in the City of Lodi Executive Management Statement of
Benefits, March 18, 1998,
(d) Administrative Leave - Employee shall be granted eighty (80) hours of
administrative leave per year. Upon termination of resignation of employment,
Employee or those entitled to -his estate, shall receive a lump sm.n payment for
unused or accumulated administrative leave to his -credit at his rate of pay as of
his date of termination.
(e) Other terms and conditions — Except a; otltem!ise.ptovitled`hexel;, all`.prpx►isiozs.
of the City. of Lodi Municipal Code, official pal ci60-aitti•:i sgtilatiftmaamlos- Of`
the City relating to vacation, holidays,-.ratirerne>Ett>ss?ist a cci10ft-1?U-40il , W, :other
fringe benefits and working conditions as they now exist or hereafter may be
amended also shall apply to Employee as they would to other management
employees of City in addition to said benefits set out in this Agreement.
11. INSUPANCE:
(a) Medical Insurance: Employee shall receive fatriffy. mdi'cal :ate P.1140 accugcal:
insurance, family dental insurance, long . f dis4b ty eh rti0tactic insurance
and any other similar benefit which may be made, .avaiiabie to *tsn. ployi e. by the
City as outlined in the City.of Lodi Executive Management Statement of Benefits,
March 1998' or by Council Resolution. The Statement of Benefits or Council
Resolution describes these benefits and any applicable deductibles.
(b) Deferred" Compensation: Employee may 'participate in the City's Deferred
Compensation p tan. T he C ity will m atch up t o 3% p ercent o f t he employee's
base salary:
(c) Life Insurance: Employee 'shall receive Life Insurance equivalent to City
Department Heads.
12. RETIREMENT:
City is a full member of the Public Employees Retirement System (PERS) to which
City agrees to contribute to Employee's retirement account the total amount
required by it and to contribute Employee's contribution of seven (7) percent to the
membership contract with PERS for each pay period.
774197. 1
13. SEPARATION:
(a) Resignation — In the event Employee ternlinates this agreement by voluntary
resignation of his position with the City, Employee shall not be enftled to
severance pay otherwise provided in Section 14 of this contract. In the event
Employee voluntarily resigns h is position with City, he shall give City at least
thirty (30) days advance written notice and shall be entitled to all earned salary
and in-Iieu vacation leave.
(b) Termination & Removal _ The City.Council may remove Employee' at any time,
with or without cause, by a majority vote of its members. Notice of termination
shall be'provided to Employee in writing. Any such notice of termination shall be
"given at a noticed meeting of the City Council. Employee shall not be'removed
during the first 120 days following any change in membership of the City
Council, except upon four-fifths vote of the City Council. Given the at -will
nature of the position of City_ Attorney, an important element of the employment
Agreement p ertains tot ennination. It is i n both the City's interest and that of
Employee that separation of Employee be done in a businesslike manner.
14. SEVERANCE PAY:
In the event Employee is terminated by the City Council within the first sic (6)
months of his employment under this Agreement and Employee remains willing
and able to perform the functions and duties of City Attorney, City agrees to pay to
Employee a hump sum cash payment equal to three (3) months salary. In the event
Employee is terminated by the City council after the first twelve (12) months.of his
employment under this Agreement and Employee remains willing and able to
perform the functions and duties of City Attorney, City agrees to pay to Employee a
lump sum cash payment equal to six (6) months salary. lin all cases 'such payments
shall be subject to all rules and regulations governing withholding. However,
notwithstanding the above, if Employee is terminated due to retirement,
insubordination, incapacity, dereliction of duty, conviction of a crime involving acts
of moral turpitude or involving personal gain to him, or a breach of this agreement,
City shall have no obligation to pay any severance provided in this section.
15. EMPLOYMENT TERM:
(a) Employee is an "at will" employee and shall serve at the pleasure of the City
Council.
(b) Except as provided in Section 14, nothing in this Agreement shall prevent, limit
or otherwise interfere with the rights of the City Council to terminate the services
of Employee.
774197. 1
(c) Nothinglin. this, Ag!wmdat shall. prevent; limit. or otherwise interfere with the right
of employee:to resign at -any time f1tbmUs, pbsiition.as City Attorney, subject only
to the provisions set forth -in Section 13 of this Agreement.
16. MISCELLANEOUS PROVISIONS:
Except as. provided otherwise a in. this ggreament, all provisions of the City of Lodi
municip$ Code;:. oftitjai.. PG11cies and regulatios arid' lul -
� '
n ...
'of1City
V'.r
elatip
g
la
disability,lncapacit% vacation; xetirient systemstamiujb Z011Yand ofiff
fringe refits and workwgcondAtion eYXOW bm rU.4.May be
&mended also shall' apply .to 6: ioYeO.:as theywouldto 6*.� 1?60 mftt Hoods: of
City in additionto sm'dh4400 "0ot
out in. this contract.
t.
17. MODIFICATIONS:
No modification of this agreement shall be valid unless said modification is in.
writing and signed by the party to be charged.
-18. CONFLICT OF INTEREST:
Because -ofthe duties and role of Employee on WWof 'ft PWand its'effivenry;
Employee shall not., dud.hg: the term of this -Agree indfid
Joint venturer, officer or gharehold.e.rI invest. or-. in any business_ venture
conducUng business in the corporate limits .of: City, except ffir stook oWift* in
any campaoy whose capital: stoek is publidy' hold and regularly^ traded, without the.
prior approval 4Dfthe City. COftA
Employee; shall 41§6. be siffij-oct to
ilio co of the California
conflict of interest provisions
-41: er-MbBrit Code and 4-y tdriflict of interest code applicable to his City
�Iopploytnent. Employee IS. responsible for submitting to the City Clerk the
A.` t'd '094 - Co ii -a of 'W0t-6§t,StAWmeats at the time of appointment, annually
Pp X,0
... . P
ail time. Ofqep from the position.
19.,INIDEMNIFICATION:
In accordance wit.h• and subject to Cal &rriia's Tort Claims Act (Government Code
§825 et. sq.), City shall dafmd aadjodemnify
Emplayooagainst and for all losses
_'sustainc:4 by Employee in direct ;consequences. of the discharge.of his . 0- duflq. qw-the
City'sbehalf-f 0 the period -of Ws,qr6pl0).qnent.
all 4qfi4 sive.4WWot and
I . adenmify Employee against: my tort, pppfbssion4J -Hability, aofin -ord ad or
other legal action, whether groundless .or otherwise, anOingput of an Alleged act of:
,omission occurring in 'the performance of his duties as City Attorney. City may
compromise and settle an'ysudh claim or suit and pay, the
or judgment rendered thereon. Whenever Employee shall be sued for dirnaps
-arising. out of the.Performanoe of his: duties,. the City may provide. def I
00s.e. C"PAnse -
for Employee in such suit and inderraffy him: from any judgment -rendered- against
774197. 1
him; provided that such indemnity shall, not. "e n d to any judgment for dainages
arising out of any willful wrongdoing:. Said htdtztriioati shah extend beyond
temiin ation of employment and the otherwise expimbola of this Agree>rtteilt to
provide protection for any sndh acts ttndertaku, or cortiti flo din:: his capach as: City.
Attorney, regardless .of vefl3er the. notice of filing of a lawsuit occurs during or
following at�jjoyment with t ecity.
20. ATTORNEY'S FEES:
If either of the parties hereto brings. any action or proceeding against the other,
including but not limited to, an action .to enforce • or to declare the.. termination, .
cancellation or revision) :eta the;z grod ant, Ile :provail i g patty n., such :acf on :or
proceedings shall be ent:ttled:.to: toceive zzi 1 -he other p*,W all, raascsnable
'attorney's fees and co6ts;.1nourred: in-Coiiiteetion,,thewdw th;: Sn, iit3 ycnt.exther:pa y
shall initiate any suit, a+toitnu:ctrappoal.a ani<mtter.i eatri°t o tlds;A;gteexi;.:
then the court before whom such suit, adift Qr "W:44W. slaa `a vaid: to the.
prevailing party such attorney's fees as the vouft :shall d .,'msaA0W and such:
award and all allowable costs of the event may be either added to or deducted from
the balance due under this Agreement or be a separate obligation as appropriate.
21. SEVERABILITY:
If any provision, or any portion of any provision of this contract is held to be
unconstitutional, invalid, or unenforceable, the remainder of this agreement, or
portion hereof, shall be deemed severable and shall not be affected, but shall remain
in full force and effect.
22. INTEGRATED AGREEMENT:
This writing contains the entire agreement between the parties and all prior or
contemporaneous agreements, understandings or discussions relative -to this
agreement are hereby superseded
23. JURISDICTION AND VENUE:
This Agreement shall be construed in accordance with the laws of the State of
California and the parties hereto agree that venue shall be in Lodi, California.
24. NOTICES:
All written notices required pursuant to this agreement shall be delivered to: City
Clerk, City ];call, P.Q. Box 3006, 221 West Pine Street, Lodi, CA 95241; and D.
Stephen Schwabauer, 141 S. Rose Street, Lodi, CA 95240,
774197. 1
• Al�
25. EXECUTION:
IN W UNESS WHEREOF, the C ity C ouncil o f the City o f L6di has c aused this
Agreement to be signed and executed on its behalf by the Mayor and Employee has
signed and executed this Agreenieft as of the day and year first above written.
CITY OF LODI, a municipal corporation; EMPLOYEE:
Larry .,.H=06/ D. �64n.Sehwd6�duej
Mayor City -Attorney
Attest: Approved as to Form:
-Susan J.
_City Clerk Kronick,.Moskovitz, Tiedemann &
Girard
774197. 1
9
RESOLUTION NO. 2005-98
A RESOLUTION OF THE LODI CITY COUNCIL
AMENDING THE EMPLOYMENT CONTRACT FOR
CITY ATTORNEY, D. STEPHEN SCHWABAUER
. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby
amends Section 14, "Severance Pay," of the employment contract for City Attorney,
D. Stephen Schwabauer, as follows and indicated -in bold underline:
14. SEVERANCE PAY:
In the event Employee is termwnated by-thd City Counoll :within -.the'" s(x
(6) months of his employment under this Agreement :and Emptoyee:
remains witting and able 'to: perform. the: funcifloris. and dunes. of Gley
Attorney, .City agnea 1.01 pay to:5M.p)oyda'..a: iaii p ;sum .cash' paymont
equal to tE�r e ( moratihs sa ptY!. to tie event. Etllpioye'e ls`4 trtniriat®
the City Cottnali :after tyle first twelve (1.) -n Iths of hit . ploy ont
undereertaenf.artd Ein. byee: rernah : till iat d;abie:te. rt t
the functions and duties of Cid: Alt cnay,. CI y;:aorees i . pay t tt"�plixy e
a lump .sum cash payment- equ. ; -tq sXx ;�(: riioriflts? :&chary .:ail o,
ds*<tatfriii�: fii:o'at�: �ftrtdloVeefs::-:-fteattti ins'urali�e f7eiteftts���i�ien; tfie .
payments shall: bb._60
ject ta: all ruins 'arid reguiadoris .gaveming
withholding. No"Weuet' not .1thstandIng: the- ,above, If Employee is
terminated due 1b:. reftri1houbardinatt6n; Incapacity, dereliction of
duty, convioUbft 61` a crime- Involving. ants- f meral turpItU0 or involving
personal:.:gairl to him; .ora f;Mreach`.of this -Agreement, City shall have no
obligation to pay any severance provided In this section.
Dated: May 16, 2005
I hereby certify that Resolution No. 2005-98 was passed and adopted by the City
Council of the City of Lodi In a regular meeting held May 16, 2005, by the following vote: '
AYES: COUNCIL MEMBERS — Hitphcook, Hansen, Johnson, Mounce,
and Mayor Beckman
NOES: COUNCIL MEMBERS —None
ASSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
2005-98
U
SUSAN J.13LA KSS Qui
City Clerk
RESOLUTION NO. 2007-81
A RESOLUTION OF THE LODI CITY COUNCIL APPROVING
SALARY ADJUSTMENT FOR CITY ATTORNEY
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby
approves the annual salary adjustment for the City Attorney at $140,000, which
represents an Increase of 12%; and
BE IT FURTHER RESOLVED that the adjustment be retroactive to
February -7, 2007.
Dated: May 2, 2007
I hereby certify that Resolution No. 2007-81 was passed and adopted by the City
Council of the Cfty of'Lodi In a regular meeting held May 2, 2007, by the following vote:
AYES: COUNCIL. MEMBERS — Hansen, Hitchcock, Katzakian, Mounce,
and Mayor Johnson
NOES: COUNCIL MEMBERS -None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
RANDIJQHL
City Clerk•
2007.81 '
ADDENDUM TO THE CITY ATTORNEY
EMPLOYMENT AGREEMENT.
March, 2009
The City of Lodi employs D. Stephen Schwabauer as its City Attorney
under an employment agreement dated July 21, 2004.
This Addendum is entered for the purpose of addressing the significant
and unanticipated budget crisis caused by the current economic downturn.
For the above reasons the parties agree that the agreement shall be
amended as follows:
1) Employee agrees to accept an unpaid furlough of one day per
month from March 1, 2009 through June 30, 2010.
2) Employee agrees to forego all deferred compensation matches he
or she would otherwise be entitled to between the pay periods in
which March 1, 2009 through July 1, 2010 fall.
This Addendum shall not become effective until approved by the Lodi City
Council.
CITY OF LODI, a municipal corporation
::.. ; ...
:ABBY D. H' . i$EN, M-ayor
ATTEST:
ti C3HL, J.D., City Clerk
APPROVED AS TO FORM:
JON HOBBS
Attorney at Law
EMPLOYEE
� r;-g�,j
01853
SES _AD ADDENDUM TO THE CITY ATTOR.._X �1
EMPLOYMENT AGREEMENT
May, 2011
The City of Lodi employs D. Stephen Schwabauer as its City Attorney under an employment
agreement dated July 21';' 2004 ' ("Employment Agreement"). ; This Second Addendum to the
Employment Agreement is. -entered .for the purpose of addressing the significant and unanticipated
budget crisis caused by the -current economic downturn.
-For the above reasons, the parties agree that the Employment Agreement, as previously
amended, shall be further amended as follows:
1. Starting with the July 11, 2011 pay period, Employee agrees to pay 7 percent of his
salary towards• his PERS retirement benefits. This payment will be made as a payroll
deduction onapre-tax basis.
2.. Employee agrees to forego all deferred compensation matches he would otherwise
'be entitled to.
3. Employer will contribute the full cost (minus the Employee's Share) of the lowest cost
PERS HMO Medical Plan available to employees (excluding Porac) toward
Employee's selected PERS health care provider between the pay periods in which
January 1, 2012 through June 30, 2012 fall. The lowest cost medical plan will be the
lowest cost plan for San Joaquin County residents as of January 2012 for
Employee's coverage category of: a) employee, b) employee plus one, or c) family.
If Employee selects a higher cost plan, Employee will pay the difference (and the
Employee's Share) as a payroll deduction. The Employee's Share shall be $0.00 for
the employee only coverage category, $80.00 per month for employee plus one and
$104.00 per month for family.
4. Starting in calendar year 2012, Employee agrees to forego the ability to cash out 20
of the 40 hours of the Administrative Leave that would otherwise be cashable
pursuant to Article IX of the Executive Management Statement of Benefits.
The changes in Paragraphs 1, 2, and 4 of this Second Addendum are permanent changes to
Employee's Employment Agreement. This Second Addendum shall not become effective until
approved by the Lodi City Council.
APPROVED AS TO FORM:
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
;-
d H1!P.HB .O
Attorney at Law
Special Counsel to the City of Lodi
970675.1 11233.28
EMPLOYEE
RESOLUTION NO. 2012-26
A RESOLUTION OF THE LODI CITY COUNCIL APPROVING
BENEFIT MODIFICATIONS FOR COUNCIL APPOINTEES AND
EXECUTIVE MANAGEMENT EMPLOYEES AND AUTHORIZING
THE DRAFTINGAND EXECUTIONOF EMPLOYMENT
CONTRACTS; AND FURTHER AUTHORIZING OUTSIDE
COUNSEL TO DRAFT COUNCILAPPOINTEE (CITY ATTORNEY)
EMPLOYMENTAGREEMENT
WHEREAS, it is recommended that Council approve the continuation or
modification to current salary and benefits for Council Appointees (City Attorney, City
Manager, City Clerk) and Executive Management employees (Public Works Director,
Library Director, Chief of Police, Fire Chief, Deputy City Manager, Parks & Recreation
and Cultural Services Director, and Electric Utility Director) as follows:
• Council Appointees and Executive Management will continue to pay
7 percent of the employee's share of retirement benefits (originally approved
by Council as a concession on June 1, 2011);
• Council Appointees and Executive Management will pay 100 percent of the
change in medical costs beginning January 1, 2013. Baseline will be the
January 2012 lowest cost PERS HMO for the employee's family category
(Family, $1,587.14; Employee+1, $1,220.88; Single, $610.44);
City will eliminate the employee co -pay for medical insurance (currently $80
and $104 for employee + 1 and family coverage, respectively) beginning the
first pay period 14 days after Council approval of this resolution;
City will restore a match, up to a maximum of 3 percent of salary, to the
Deferred Compensation contributions made by Council Appointees and
Executive Management effective June 25, 2012;
City will restore the ability of Council Appointees and Executive Management
to cash -out up to 40 hours of Administrative Leave effective January 1, 2013;
City will standardize sick leave accrual in the amount of 3.70 hours per pay
period for all Council Appointees and Executive Management; and
• City will standardize vacation leave accrual for those Council Appointees and
Executive Managers currently accruing vacation leave at 4.62 hours per pay
period as follows: Vacation leave will accrue at 4.62 hours per pay period
(equivalent to five full years of service), with future leave to be accrued
according to the Executive Statement of Benefits; with the employee's sixth
year of service equal to the 12th year, the ninth year af:seruiee equal -to the
15th year, and so on, as set forth in the Executive.Stetem.en't :of Ben0fits.
WHEREAS, it is recommended that the Lodi City Council authorize the drafting
and execution of Employment Agreements with Council Appointees (City Manager and
City Clerk) and Executive Management employees incorporating the foregoing benefit
modifications: and
WHEREAS, in order to avoid a conflict of interest, it is further recommended that
the -City Attorney's employment agreement be drafted by outside counsel, namely,
Kronick, Moskowitz, Tiedemann & Girard.
NOW, THEREFORE, BE -IT RESOLVED that the Lodi City Council does hereby
approve the continuation or modification to the current benefits for Council Appointees
and Executive Management employees as outlined above; and
BE IT FURTHER RESOLVED that the Lodi City Council hereby authorizes the
drafting and execution of Employment Agreements with Council Appointees (City
Manager and City Clerk) and Executive Management employees incorporating the
foregoing benefit modifications; and
BE IT FURTHER RESOLVED that the law firm of Kronick, Moskovitz,
Tiedemann & Girard be retained to draft the employment agreement for Council
Appointee (CityAttomey), incorporating the foregoing benefit modifications.
Date: March 21, 2012
I hereby certify that Resolution No. 2012-26 was passed and adopted by the Lodi
City Council in a regular meeting held March 21, 2012, by the following vote:
AYES: COUNCIL MEMBERS — Hansen, Johnson, Katzakian, and
Nakanishi
NOES: COUNCIL MEMBERS — Mayor Mounce
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
f�I�ER,, �. ROBISON
Assistant City Clerk
2012-26