HomeMy WebLinkAboutAgenda Report - July 21, 2004 I-07AGENDA ITEM 14
&2� CITY OF LODI
W COUNCIL COMMUNICATION
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AGENDA TITLE: Adopt Resolution Approving Employment Contract with D. Stephen
Schwabauer, City Attorney
MEETING DATE: July 21"t, 2004
PREPARED BY: Kirk J. Evans, Risk Manager
RECOMMENDED ACTION: That City Council adopt the attached resolution approving the
employment contract with D. Stephen Schwabauer, City Attorney.
BACKGROUND INFORMATION: The City Council has indicated its desire to appoint D. Stephen
Schwabauer as the new City Attorney for the City of Lodi. Staff prepared a draft contract which has been
further refined through negotiations between the City Council and Mr. Schwabauer. This final contract
will be presented to City Council prior to their meeting, for adoption at the 7/21/04 meeting.
Funding Available:
�94es �Krueger. Finance Director
Attachment
cc: Interim City Attorney
APPROVED: 7!!"�
/' H. Dixo'n Flyn—n',
RESOLUTION NO. 2004-151
A RESOLUTION OF THE LODI CITY COUNCIL
APPOINTING D. STEPHEN SCHWABAUER TO THE
POSITION OF CITY ATTORNEY, AND APPROVING THE
EMPLOYMENT CONTRACT
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby
appoints D. Stephen Schwabauer to the position of City Attorney for the City of Lodi;
and
BE IT FURTHER RESOLVED that the City Council hereby approves the
employment contract attached hereto as Exhibit A; and
BE IT FURTHER RESOLVED that the City Council hereby approves
1) increasing the City Attorney's deferred compensation City match from 2% to 3% and
2) setting the annual salary for the position of City Attorney at $125,000, to be effective
this pay period (beginning July 19, 2004).
Dated: July 21, 2004
I hereby certify that Resolution No. 2004-151 was passed and adopted by the
City Council of the City of Lodi in a regular meeting held July 21, 2004, by the following
vote:
AYES: COUNCIL MEMBERS — BGckman, Hitchcock, Land, and
Mayor Hansen
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Howard
ABSTAIN: COUNCIL MEMBERS — None
SUSAN J. BLACKSTON
City Clerk
2004-151
EXHIBIT Al
CITY ATTORNEY EMPLOYWNT AGREEMENT
This Agreement is made and entered into as of July 21, 2004, 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:
It is the desire of the City to retain the services of Employee and to provide inducement
for him to remain in such employment, make possible full work productivity by assuring
Employee's morale and peace of mind with respect to future security, and to provide a
just means for teminating Employee's services.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follow%*':
1. GENERAL:
City hereby agrees to employ Employee as the City Attomey 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, Rules and Regulations and other state and local statutes,
(b) Act as chief legal advisor to City,
(c) Perfbnn all legally penz issible 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 shall recornmend policies and
rules and regulations to implement City Council policies and shall enforce
policies established by the City Council. To accomplish this, Employee shall
have the power to and shall be required to:
(1) Attend City Council meetings as needed by the City Council.
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(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 fall time and energies in
the best interest of the City, and to act in accordance with the duties Mid
responsibilities of the position of City Attorney.
(b) Employee shall not accept employment as an attorney of law from or on behalf of
any person, firin, corporation or entity during the term of this Agreement, The
foregoing shall not be construed to prevent Employee from performing volunteer
community service, or pro bono services, provided Employee shall, prior to
performing such services, disclose such anticipated services to the City Council
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 Refonn Act
of 1974, as amended, nor shall such services impair Employee's ability to fully
perform his duties for City hereunder.
4. EMPLOYEE COMMITMENTS:
(a) Specific Tasks and Work Plans — Employee agrees to accomplish specific tasks as
specified and described b y the City Council from time to time in a timely and
professional manner. Such specific tasks shall be discussed with Employee and
then adopted by motion by the City Council as frequently as the City Council may
choose.
(b) Hours of Work — Employee is an exempt employee who does not acc=
compensatory time off, but is expected to engage in those hours of work which
are necessary to fulfill the obligations of his position. Employee does not have set
hours of work as he is expected to be available at all times. It is recognized that
Employee must devote a great deal of his time outside "normal office houre' to
the business of the City, and to that end Employee's schedule of work each day
md week sh-A vary in accoTdance with the work requiod to be perforimd. The
Employee has discretion as to his work schedule.
5. CITY COMMITMENTS:
(a) City shall provide Employee with an office, support staff, office equipment,
supplies and a)] 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
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appropriate and lawful business expeilses iip 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 subscriptions on behalf of Employee
which are necessary for Employee's continuation and full participation in
national, regional, state, or local associations and organizations necessary and
desirable for the good of the City, and for Employee's continued professional
participation and advancement up to an amount provided for in the City budget.
(e) City agrees to pay travel and subsistence expenses of Employee to pursue official
and other fiinctions fpr the City, and meetings and occasions to continue the
professional development of Employee, including but not limited to Annual
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 �ther national, regional, state, and local conferences, and
governmental groups and committees upon whicb Employee serves as a membeir
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 pay membership dues up to an
amount provided for in the City budget.
6. MUTUAL COMMITMENTS:
Performance Ev aluation— Annual performance evaluations are an important way
for the City Council and Employee to ensure effective communications about
expectations and performance. 'fhe City Council recognizes that for Employee to
respond to their needs and to grow in the performance of his job, he needs to know
how the City Council Members think he is perfonning. To assureEmployee 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
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the attainment of the City Council's policy objectives. The City Council and
Employee shall ftirther establish a relative priority among those various goals and
objectives.
7. COMPENSATION:
City agrees to provide the following coMpepsatio4 to Employee during the term of
the Agreement:
(a) Base Salary — Employee shall be paid an annual salary of $125,000 per year
(retroactive to June 21, 2004), which sum may be adjusted from time to time as
provided in this Agreement by action of the City Council, payable in twenty-six
(26) equal installments in the same manner as City department heads.
(b) The City shall pay all traditional employer costs required by law, including but
not limited to: FICIA, 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 does so on a Citywide (all Management employees) basis; or,
(ii) it does so after providing Employee with a'written performance evaluation
process that provides direction and oppodunity for improvement prior to
any action to reduce salary or benefits.
8. 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 conferences, seminars and/or other such
meetings, the reasonable costs of which shall be paid by City. Employee shall also
be reimbursed by City for reasonable out of pocket expenses incurred in the course
and scope of his employment.
10. BASIC BENEFITS:
(a) Holidays - Employee shall receive thirteen and one half (13 1/2) 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
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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 o f 3.08 h ours p er p ay p eriod. Employee's s ick I eave sh all b e
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 or' resignation of employment,
Employee or those entitled to his estate, shall receive a lump sum 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 condiiions — Except as otherwise provided herein, all provisions
of the City of Lodi Municipal Code, official policies and regulations and rules of
the City relating to vacation, holidays, retirement gystems contributions, and other
fringe benefits and working conditions as they now exist or he�eafter 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. INSURANCE:
(a) Medical Insurance: Employee shall receive family medical and pharmaceutical
insurance, family dental insurance, long term disability, chiropractic insurance
and any other similar benefit which may be made available to Employee 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 ]an. T he C ity will m atch u p 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.
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13. SEPARATION:
(a) Resignation — In the event Employee terminates this agreement by voluntary
resignation of his position with the City, Employee shall not be enotled to
severance pay otherwise provided in Section 14 of this contract. In the event
Employee voluntarily resigns his 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 -lieu 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 4 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 positiori of City Attorney, an important element of the employment
Agreement pertains to termination. It is in 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 six (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 lump 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. In 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.
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(c) Nothing in this Agreement shall prevent; limit or otherwise interfere with the right
of employee to resign at any time from his position -as City Attorney, subject only
to the provisions set forth in Section 13 of this Agreement.
16. MISCELLANEOUS PROVISIONS:
Except as provided otherwise in this agreement, all provisions of the City of Lodi
Municipal Code, official policies and regulation's and rules of City relating.to
disability, incapacity, vacation, retirement systems contiibutions, holidays and 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 Department Heads of
City in addition to said benefits set out in this contract.
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 of the duties and role of Employee on behalf of the City and its citizenry,
Employee shall not, during the term of this Agreement, individually, as a partner,
joint venturer, officer or shareholder, invest or participate in any business venture
conducting business in the corporate limits of City, except for stock ownership in
any company whose capital stock is publicly held and regularly traded, without the
prior approval of the City Council,
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. Fmployee is responsible for submitting to the City Clerk the
Appropriate Conflict of Interest Statements at the time of appointment, annually
thereafter, and at the time of separation from the position.
19. INDEMMFICATION:
In accordance with and subject to California's Tort Claims Act (Govenurient Code
§825 et seq.), City shall defend and indemnify Employee against and for all losses
sustained by Employee in direct consequences of the discharge of his duties on the
City's behalf for the period of his employment. 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 of
omission occurTing in the performance of his duties as City Attorney. City may
compromise and settle any such claim or suit and pay the amount of any settlement
or judgment rendered thereOD. 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
774197. 1
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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
Attorney, regardless of whether the notice of filing of a lawsuit occurs during or
following employment with the City.
20. ATTORNEY'S FEES:
If either of the parties hereto brings any action or pToceeding. against the other,
including but not limited to, an action to enforce or to declare the termination,
cancellation or revision of the.Agreement, the prevailing party in such action or
proceedinp shall be entitled to receive from the other party all reasonable
attorney's fees and costs, incurred in connection therewith. In the event either party
shall i nitiate a ny s uit, a ction, o r a ppeal o n a ny matter r elated t o t his A greement,
then the court before vihorn such suit, action, or appeal is taken shall award to the
prevailing party such attorney's fees as the court shall deem reasonable, 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 sha 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 bereby 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 Hall, P.O. Box 3006, 221 West Pine Street, Lodi, CA 95241; and D.
Stephen Schwabauer, 141 S. Rose Street, Lodi, CA 95240.
774197. 1
Jul -23-2004 WHIM Fr% -
T -021 P 002/002 F-81 T
25. EXECUDON:
IN Wn'bMSS WHEREOF, the City Council of the City of Lodi has caused this
Agreemeat to be signed and executed on its behalfby the Mayor and Employee har,
signed and execured this Agreement as of the day and year first above written.
CITY OF LODI, a municipal corporation:
B
Larry D. Hanscn
MIYOT
Attea:
Susan J. Blachton
City Clerk
'7?4197,1 9
ENQLOYEE:
D. 91�pl'wScHw—abiuerl-,�
City Attorney
Approved as to FoTm:
PI
Jefrey)r tchell
6 '
Kronick, �oskcovitz, Tiedemann &
Girard
25. EXECUTION:
IN W JTNESS W HEREOF, t he C ity C ouncil o f t he C ity o f Lodi h as c aused t his
Agreement to be signed and executed on its behalf by the Mayor and Employee has
signed and executed this Agreement as of the day and year first above written. -
CITY OF LODI, a municipal corporation:
;r;TD
L Hansen
7
Mayor
Attest:
Susan J. Blacksto
City Clerk
774197. 1 9
EMPLOYEE:
D. ep en Schw6bNue—r
City Attorney
Approved as to Form:
Jeffirey A. Mitchell
Kronick, Morskovitz, Tiedemann &
Girard