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HomeMy WebLinkAboutAgenda Report - April 20, 2016 I-01TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM AGENDA TITLE: Ratification of Employment Agreement Entered into Between City Manager Stephen Schwabauer and Public Works Director Charles E. Swimley, Jr. MEETING DATE: April 20, 2016 PREPARED BY: City Manager RECOMMENDED ACTION: Ratification of employment agreement entered into between City Manager Stephen Schwabauer and Public Works Director Charles E. Swimley, Jr. BACKGROUND INFORMATION: Lodi Municipal Code Chapter 2.12.060 vests the City Manager with authority to select subordinate staff. The Public Works Director position became vacant upon the retirement of Wally Sandelin in December of 2015. Since that time, Mr. Swimley has served as Interim Director. In his capacity as Interim Director, Mr. Swimley has demonstrated that he has the temperament, skill and work ethic necessary to perform the task on a permanent basis. He has been widely praised for his work ethic, approachability and problem solving nature by his employees, his colleagues, citizens and the development community alike. However, he has also held the line where necessary to protect the City's interests. As such, I have decided to appoint him as the Public Works Director. The terms and conditions related to Mr. Swimley's employment extend beyond the Manager's authority and therefore require ratification by the City Council. The agreement is an "at -will" agreement and contains a base salary of $152,719 annually, six-month severance payment for termination other than cause, an option for a five- percent (5%) increase upon the conclusion of a favorable first year, and benefits similar to what other City executive managers receive under the City's Executive Management Statement of Benefits. FISCAL IMPACT: Not applicable as it fills a budgeted position. FUNDING AVAILABLE: The $152,719 salary is included in the FY 2015/16 budget. Steph - Sch vabauer City Manager Attachment: Employment Agreement APPROVED: ashen Schwabauer, ity Manager EMPLOYMENT AGREEMENT Executive Management Exempt Service Public Works Director THIS AGREEMENT entered into on April 20, 2016, by and between the CITY OF LODI, a municipal corporation (hereinafter referred to as "City") and Charles E. Swimley, Jr., an individual (hereinafter referred to as "Employee"). WHEREAS, Employee desires to be employed as Public Works Director and City desires to employ the services of Employee as Public Works Director; and WHEREAS, City and Employee agree in writing to the terms and conditions of employment as Public Works Director; and WHEREAS, Employee and City agree and acknowledge that Employee's employment as Public Works Director is his sole and exclusive employment with City, and that their employment relationship is governed solely and exclusively by this Agreement. NOW, THEREFORE, in consideration of the promises and conditions set forth herein, the parties mutually agree as follows: 1. Employment: City agrees to employ Employee as Public Works Director, in accordance with the following provisions: (a) Employee shall serve as Public Works Director, and shall be responsible for managing and directing the operations of the Public Works Department in accordance with an agreed upon performance plan. (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 the 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. Employee shall comply fully with his reporting and disclosure obligations under regulations promulgated by the Fair Political Practices Commission (FPPC). (d) Employee agrees to remain in the exclusive employ of the City during the term of this Agreement. Employee shall dedicate his full energies and qualifications to his employment as Public Works Director, and shall not engage in any other employment except as may be specifically approved in writing in advance by the City Manager. 2016. 2. Start Date: Employee shall begin work as Public Works Director on April 25, 1 3. Maintenance of Professional Expertise: To promote continued professional growth and benefit to the City, Employee shall, at City expense and consistent with budgetary constraints: maintain current professional licenses, maintain membership in professional organizations related to Public Works administration and related professional disciplines; attend workshops, seminars and other similar activities designed to advance Employee's professional development; and, represent the City in professional associations and other organizations. 4. Resignation or Termination: (a) Employee may resign at any time and agrees to give City at least 30 days advance written notice of the effective date of his resignation. In such event, Employee shall not be entitled to severance pay as provided in Paragraph 5 herein. (b) The parties recognize and affirm that Employee may be terminated by the City Manager with cause, which shall mean gross insubordination, incapacity, dereliction of duty, conviction of a crime involving acts of moral turpitude or involving personal gain to him, or material breach of this Agreement. In such event, Employee shall not be entitled to severance pay as provided in Paragraph 5 herein. (c) The parties recognize and affirm that Employee may be terminated by the City Manager without cause. In such event, Employee shall be entitled to severance pay as provided in Paragraph 5 herein. (d) In the event of termination and in recognition of Employee's professional status and integrity, Employee and the City Manager shall prepare a joint public statement to be made by the City Manager. This employment relationship is based on the mutual respect between the parties and a desire to maintain the highest degree of professionalism. In communicating with third parties about the parties' employment relationship and the circumstances under which it may have been severed, the parties shall (a) protect and advance their mutual respect and professionalism, and (b) refrain from making statements that would negatively impact either party. (e) Employee may choose to resign or retire his office instead of being terminated if agreed to by the City Manager. In such an event the public announcement, as provided for in Paragraph 4 (d) above, will note Employee has resigned or retired. The provisions of Paragraph 4 (d) shall remain applicable. In such event, Employee shall not be entitled to severance pay as provided in Paragraph 5 herein. 5. Severance Pav: If Employee is terminated by the City Manager without cause while still willing and able to perform the duties of Public Works Director, City agrees to pay Employee a cash payment equal to six (6) months' aggregate salary and the City's cost of six (6) months' health insurance benefits only (no other benefits will be accrued or converted to a cash equivalent) subject to reduction as set forth in this Paragraph 5. The severance payment will be paid in installments coinciding with the City's regular paydays during the severance period and subject to customary withholdings. In the event Employee retains new employment during the six-month severance period, any remaining severance payment will be forfeited as of the date Employee begins his new employment. To be eligible for such severance pay, Employee shall fulfill all of his obligations under this Agreement, and shall sign an Acknowledgment and Release of Claims against the City in a form acceptable to the City Attorney. Payment under this Paragraph 5 will release City from any further obligations under this Agreement, or any other transaction between the parties. 2 6. Employment as Department Head is Sole Employment with City: Employee further represents and acknowledges that his employment as Public Works Director is his sole and exclusive employment with the City. Employee has no right to any other exempt position with the City or to any employment in the classified service. 7. Salary: (a) City agrees to pay Employee $152,719 in salary per annum for his services, payable in installments at the same time as other employees of the City are paid and subject to customary withholding. The City may reduce base salary compensation or other financial benefits of Employee as part of general salary reduction in pay among and common to all employees. In addition, Employee shall pay seven percent (7%) (employee's share) of his salary towards the California Public Employees Retirement System (CaIPERS) benefit. (b) At any time, a minimum of a ten percent (10%) salary differential shall exist between the Public Works Director and the Public Works Department's next highest paid executive or mid management position, including incentive pay. In addition, the City Manager will have discretion to grant an additional five percent (5%) increase in salary after one year from the date of this Agreement, and subject to a satisfactory performance evaluation. In addition, Employee will receive an additional two percent (2%) adjustment in 2017 similar to all other Executive Managers. 8. Benefits: The City shall provide Employee the same benefits as provided to management employees in accordance with the terms of the Executive Management Statement of Benefits, amended as of May 16, 2012, and as hereafter amended, increased or decreased, except as modified herein. Employee's vacation leave shall be calculated based on his actual years of service with the City, increasing from there as provided in the Executive Management Statement of Benefits. Moreover, Employee shall retain all sick leave and vacation leave he has accrued as a City employee prior to his start date as Public Works Director. Employee will also continue to earn and accumulate sick leave as provided in the Executive Management Statement of Benefits. These are the sole and exclusive benefits to be provided to Employee. Any improvement or modification of such benefits may only be made by written instrument signed by the City Manager. As used herein, benefits include, but are not limited to: vacation, sick leave, holidays, administrative leave, retirement, vision insurance, health insurance, dental insurance, long-term disability insurance, and life insurance. 9. Cell PhoneNehicle: Employee will be provided with a Cell Phone for employment related use at the City's expense or a monthly stipend, at Employee's option, on terms consistent with other Executive Managers. Employee will also be provided with access to the Public Works Pool Car for work related use on an as available basis. 10. Performance Evaluation: The City Manager shall review and evaluate the performance of Employee each year and set goals and objectives for the ensuing year. Such review and evaluation shall be in accordance with specific criteria developed in the performance plan in consultation with Employee and the City Manager. 11. Assignment: Employee shall not assign any of the duties and responsibilities, or obligations of this Agreement except with the express written consent of the City Manager. 12. Authority to Work in the United States: Employee represents, under penalty of perjury, that he is authorized to work in the United States. In accordance with §274A (8 USC - 3 - 1324) of the Immigration Reform and Control Act of 1986 before this Agreement can become effective, Employee must provide documentary evidence to City consistent with the Act, that he is legally entitled to work in the United States, and must execute the verification required by that Act. follows: 13. Notice: All notices required herein shall be sent first class mail to the parties as To CITY: To EMPLOYEE: Stephen Schwabauer, City Manager City of Lodi P. O. Box 3006 Lodi, CA 95241-1910 Charles E. Swimley, Jr. 620 Live Oak Court Lodi, CA 95242 Notice shall be deemed effectively served upon deposit in the United States mail. Either party may change the "Notice" address by notifying the other party in writing of such change. 14. Entire Agreement: This Agreement contains the entire agreement between the parties hereto. No promise, representation, warranty, or covenant not included in this Agreement has been or is relied on by any party hereto. This Agreement may only be amended by written instrument signed by Employee and the City Manager and specifically approved by the City Council in open session. 15. Severability: If any provision of this Agreement is invalid or unenforceable, it shall be considered deleted herefrom and the remainder of this Agreement shall be unaffected and shall continue in full force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year written above. CITY OF LODI, a municipal corporation EMPLOYEE By: Stephen Schwabauer Charles E. Swimley, Jr. City Manager ATTEST: By: Jennifer M. Ferraiolo City Clerk APPROVED AS TO FORM: By: Janice D. Magdich City Attorney -4-