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2011 Agreement for Employment of City Manager Page 1 of 10 006055.00001/10096086v4
AGREEMENT FOR EMPLOYMENT OF CITY MANAGER
(EFFECTIVE DATE OF NOVEMBER 2, 2011) This agreement is made and entered on this 2nd
day of November, 2011, by and between the City of
Saratoga (the “City”), a general law city, and David Anderson (“Anderson”). This agreement for
employment of Anderson, hired in the position of City Manager on August 21, 2000, supersedes all prior agreements between Anderson and the City effective November 2, 2011.
In consideration of the mutual covenants contained herein, the parties agree as follows:
I. EMPLOYMENT.
A. Appointment of City Manager
The City Council of the City hereby appoints Anderson to the position of City Manager to
perform the functions and duties specified under the laws of the State of California, the
Saratoga City Code, the Ordinances and Resolutions of the City, and this Agreement, and to
perform such other duties and functions as the City Council shall assign. Anderson shall serve at the pleasure of the City Council.
.
II. POWERS, DUTIES AND RESPONSIBILITIES.
A. Employment Duties
Anderson shall function as the City Manager of the City and shall be vested with the powers, duties and responsibilities set forth in Article 2-20 of the Municipal Code and
California law as they now exist and may be amended hereafter, the terms of which are
incorporated herein by reference. In addition, Anderson shall perform such other duties as
may be assigned by the City Council and which are consistent with the position of City
Manager, without additional compensation because the City Manager is an overtime-exempt executive position. Such duties shall include, but not be limited to, the following:
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1. Assemble and explain pertinent facts and prepare committee reports as required;
2. Prepare agendas for Council meetings and advise Council on appropriate priorities
and required actions; 3. Direct City Clerk in preparation for City Council meetings, maintenance of official
records, conduct of municipal elections and execution of related functions;
4. Represent the City Council in relationships with other governmental and private
agencies;
5. Confer with and direct all department heads in the formation and implementation of administrative policies and practices;
6. Prepare and submit the annual budget;
7. Represent City to press and other information media as required;
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8. Meet with individual citizens groups to discuss complaints and explain City policy; and 9. Administer any bonds approved by the voters of the City.
B. Hours of Work
Anderson is expected to devote necessary time outside normal office hours to business of the City. To that end, Anderson shall be allowed flexibility in setting his own office hours, provided that Anderson shall work as necessary during customary business hours to
satisfactorily perform his duties and responsibilities as City Manager. As of the effective
date of this Agreement the City’s customary business hours are based on a 9/80 work
schedule where a full-time work week constitutes 40 hours within seven consecutive 24 hour days.
.
Anderson shall schedule any appointments for medical treatment, industrial injury medical
treatment, or other personal appointments so as to minimize the inconvenience to fellow
employees and the impact on his ability to perform his job.
III. COMPENSATION AND BENEFITS OF ANDERSON.
A. Salary
1. Anderson’s salary as of August 31, 2011, is One Hundred Ninety-Nine
Thousand, Three Hundred Eighty-Nine Dollars ($199,389) per year. The salary shall be paid in bi-weekly installments. (Future changes to compensation are
addressed in Section IV.)
.
2. In the event the City, at any time during the term of this Agreement, reduces the
salary specified in section III.A.1 of this Agreement or reduces the benefits specified
in section III.B of this Agreement to a level below that made available to members of the Saratoga Management Organization, then Anderson may, at his option, be
deemed to be “terminated” by the City Council within the meaning of Section V.A.4
of this Agreement as of the date of such reduction.
B. Benefits
Anderson shall be entitled to the following benefits:
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1. Health, Dental, Vision, and Employee Assistance Program (EAP): The City
provides Anderson with health benefits, dental benefits, voluntary vision benefits and
an employee assistance program (EAP). The premiums are fully paid, excluding the
voluntary vision benefits, by the City for Anderson and his spouse unless Anderson enrolls in the PERS Care Plan, in which case the City will pay the premium for the highest-cost HMO plan with Anderson paying the balance for the PERS Care Plan.
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2. Cash-in-Lieu
3.
: Effective January 1, 2012, if Anderson completes and submits required documents (1) to prove that Anderson has other health insurance coverage and (2) to waive City-provided health insurance coverage, Anderson will receive a
payment per month of $350.00 as additional taxable wages. Effective January 1,
2012, if Anderson completes and submits required documents (1) to prove that
Anderson has other dental insurance coverage and (2) to waive City-provided dental insurance coverage, Anderson will receive a payment per month of $25.00 as additional taxable wages. Anderson must complete and submit any required
documents and provide proof of other health or dental insurance coverage during
open enrollment (in or around October) to be eligible for the cash-in-lieu payment
beginning the following January.
457 Plan
4.
: The City provides Anderson the opportunity to contribute to an IRS
Section 457 deferred compensation plan. Anderson may contribute up to the
maximum allowed by law. Contributions may come from Anderson’s regular
earnings through payroll deductions, or from any unused portion of his Benefits
Allowance. The City will match Anderson’s contributions to a deferred compensation account up to a maximum of $200 per month.
Car Allowance and Organization Dues
5.
: Anderson shall receive a $375 monthly
car allowance to be used to attend to local City business and shall be entitled to
reimbursement of $1,000 per year for dues and meal expenses incurred in the course
of participating in Saratoga based civic organizations which require membership as an individual.
Life Insurance
6.
: The City shall pay 100% of the premium cost for life insurance
coverage for Anderson with a death benefit of $150,000.
Disability Coverage
a.
: The City shall provide disability coverage, consisting of
short term disability payments and long term disability insurance as described below, to provide Anderson with income protection if he becomes unable to perform the
functions of his position due to a serious health condition or disability.
The City will pay 75% of Anderson’s monthly salary after Anderson has used
all accrued paid time off (PTO) and will maintain existing insurance benefits for six months from the date of injury/illness. Short Term Disability payments will
commence only after 12 continuous working days during which Anderson is
totally disabled, or when all accrued PTO is exhausted, whichever is later.
Short-term
Short term disability payments are reported to PERS as salary earned.
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b.
The City shall provide Anderson long term disability insurance including a paid
coverage plan design of 66.66% of salary to a maximum of $2,000 per month
with a voluntary buy-up option paid by Anderson to a maximum of $8,200 per
month.
Long-term
Because these payments are made through a group policy they are not reported to PERS as salary earned.
7. Section 125 Plan
The City will make available to Anderson the option of enrolling in a Section 125 flexible benefits plan. Under the plan, Anderson may deduct from his earnings up to the maximum allowable amounts per calendar year for health care reimbursement
and/or dependent care reimbursement.
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8. Long-term Care
9.
: Anderson may purchase long term care insurance through a group benefits program administered by PERS.
PERS
10.
: City is a contracting agency of the California Public Employees
Retirement System (PERS). The PERS contract requires contributions by the
employer and each covered employee. Since the inception of Anderson’s service to
City until June 30, 2011, City has paid Anderson’s required contribution in addition to the City’s contribution as a contracting employer. Effective July 1, 2011,
Anderson agreed to pay the 7% employee required contribution. The City through its
contract with PERS provides a retirement benefit plan for Anderson of 2% at 55.
Administrative Leave
11.
: City shall grant Anderson, on a fiscal year basis,
sixty-five (65) hours of administrative leave. Such leave shall be taken in a manner consistent with the use of PTO.
Leave without Pay
12.
: The City does not grant leaves of absence under most
circumstances except as legally required. In cases of hardship or for other good and
sufficient reasons, the City Council may grant leaves of absence upon written request
by Anderson for a period up to 90 days. Anderson will not accrue any annual leave while on leave without pay, and the leave period will be considered as discontinuous
service. During the time Anderson is on leave without pay, the City may discontinue
paying for insurance benefits on behalf of Anderson (including health, dental, life,
and long term disability), although he shall have the option to continue benefits at his
own cost.
Legally Required Benefits: Anderson will receive all benefits that are legally
required, including workers’ compensation coverage, unemployment insurance
contributions, the right to Family and Medical Care Leave, the right to industrial
injury leave (including full pay for the first three days of leave and health benefits for
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the first 12 months after date of injury/illness if Anderson submits the required claim form), the right to COBRA benefits after a qualifying event has occurred, and the right to other legally authorized leaves.
13. Holidays
Anderson shall receive the following paid holidays:
:
(1) New Year’s Day January 1 (2) Martin Luther King's Birthday 3rd Monday in January
(3) President's Day 3rd Monday in February
(4) Memorial Day Last Monday in May
(5) Independence Day July 4 (6) Labor Day 1st Monday in September (7) Columbus Day 2nd Monday in October
(8) Veteran's Day November 11
(9) Thanksgiving Day 4th Thursday in November
(10) Day after Thanksgiving Friday after Thanksgiving (11) Christmas Eve December 24 (12) Christmas Day December 25
(13) New Year's Eve December 31
If a holiday falls on a Saturday, the preceding Friday will be observed. If a holiday falls on a Sunday, the following Monday will be observed. In those years in which one of the Christmas and/or New Year’s holidays falls on a weekend, the Friday
preceding the weekend and the Monday following the weekend shall be observed as
holidays. If a holiday falls on an off-Friday when the City offices are closed, the
preceding Thursday will be observed. If the preceding Thursday is already a holiday, the off-Friday holiday will be observed on the first weekday after Christmas that is not already an observed holiday.
If a holiday occurs when Anderson is using PTO, the holiday will not be charged
against Anderson’s PTO balance. In order to receive holiday pay, Anderson must be on the payroll on the last regularly scheduled workday preceding the holiday and the first regularly scheduled work day following the holiday except if Anderson is on
Family and Medical Care Leave, he shall only be entitled to receive holiday pay
within the six month period after the date of injury/illness. If Anderson is using PTO
when the holiday occurs, payment for the holiday shall be prorated to the amount of PTO being used in the pay period in which the holiday occurs. If Anderson is receiving Short Term Disability payments in the pay period when the holiday occurs,
payment for the holiday shall be at 75% of Anderson’s regular rate of pay.
If the City adopts a holiday furlough whereby the City operations are closed from December 24 through January 1 Anderson shall utilize his available PTO balances.
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14. Jury Duty
: If Anderson is called for jury duty he will continue to receive full pay and benefits for that period of absence. Fees received for jury duty will be
deducted from Anderson’s gross wages.
15. PTO
a.
: Anderson accrues annual leave (paid time off or PTO) at the rate of
32 days (256 hours) per year.
PTO Cash-Out
b.
: Anderson will reduce his accrued PTO in FY2011-12 down to
400 hours through a cash-out of accrued PTO as a cash payment or tax-deferred
contribution to his deferred compensation account, with half of the amount
above 400 hours being cashed out on or after November 3, 2011, and with the
remaining amount above 400 hours being cashed out after January 1, 2012 and before January 31, 2012. Anderson will receive the cash value payment or
tax-deferred contribution to his deferred compensation account as soon as
feasible.
FY PTO Cash-Out Option Effective Fiscal Year 2012-2013 through Fiscal Year 2014-2015
A PTO Cash-Out Option will not be made other than at the time of termination,
except for the optional PTO cash-out plan described as follows:
:
If Anderson has used the required minimum of 80 accrued hours of PTO in the prior fiscal year
, Anderson is eligible to cash out up to a maximum of 200 accrued hours of PTO per fiscal year on approximately September 1 and/or
March 1. Anderson must maintain a minimum balance of 200 hours of accrued
PTO after the cash out.
c. PTO Accruals
Effective July 1, 2012, the PTO accrual cap in the Personnel Rules will be enforced. Under no circumstances can Anderson accrue more than the accrual PTO cap at any point in time. Once Anderson reaches the accrual cap, no
additional PTO will accrue until Anderson uses his or her accrued PTO and
reduces the balance to less than the accrual cap. Thereafter, PTO benefits will
continue to accrue on a prospective basis only until Anderson reaches the cap. No retroactive credit will be given for the time when accrued PTO was at the cap.
:
d. PTO Increments
e.
: PTO must be taken by Anderson only in increments of
four (4) hours or more in a workday.
PTO Upon Separation
1) Upon retirement from City service, Anderson may choose to use all of
his accrued paid time off as sick leave for the purpose of service credit if
:
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allowed to do so by PERS. If Anderson uses less than 100% of his paid time off toward PERS service credit, the City will pay the balance of Anderson’s accrued paid time off at Anderson’s regular rate of pay.
2) Upon separation from City service other than retirement, the City will
pay 100% of Anderson’s accrued paid time off at Anderson’s regular
rate of pay.
IV. COMPENSATION CHANGES AND PERFORMANCE EVALUATION.
A. CPI Increase: Cost of Living Adjustment
B.
– For fiscal year 2012-13, and for each subsequent
year of this agreement, Anderson shall receive an annual cost-of-living adjustment to his
salary of no less than one percent (1.0%) and no greater than two and one-half percent
(2.5%). If the U.S. Department of Labor, Bureau of Labor Statistics, “All Urban Consumers (CPI-U)” for the 12 months of January 1 to December 31 annual average for the
“San Francisco-Oakland-San Jose” region falls below one percent (1.0%), Anderson shall
nevertheless receive a minimum one percent (1.0%) cost-of-living adjustment; if the Index
increases above two and one-half percent (2.5%), Anderson shall nevertheless receive a
maximum two and one-half percent (2.5%) cost-of-living adjustment.
Evaluation
C.
: The City Council shall review and evaluate the performance of Anderson
annually in September. Anderson will timely cause to be placed on the City Council
agenda each year a “closed session” for the purpose of the performance evaluation. Said
review and evaluation shall be in accordance with specific criteria developed jointly by
Anderson and the City Council. Those criteria may be added to or deleted from as the City Council may from time to time determine in consultation with Anderson.
Satisfactory Evaluation
V. TERM OF AGREEMENT.
: On September 1, 2012, and each year thereafter, contingent upon a
satisfactory performance evaluation, the Mayor will document the satisfactory performance
evaluation by a memo to the Finance and Administrative Services Director, with a copy to
Human Resources for the administrative processing of any applicable salary increase in addition to that referenced in section IV.A. above. Anderson shall receive a salary increase to raise Anderson to the average salary rate for the city managers in the comparison cities of
Los Altos, Menlo Park, San Carlos, Cupertino, Los Gatos, Morgan Hill, and Campbell as
determined by a salary survey conducted within the preceding six months, provided that the
total salary increase in any year shall not exceed five percent (5.0%). If Anderson’s salary (as adjusted by the increase pursuant to section IV.A. above) is at or above average determined by of the salary survey, Anderson’s salary will not be adjusted.
A. Term of Agreement
1. The Agreement shall continue until terminated by City or Anderson as discussed below.
.
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2. Nothing in this Agreement shall prevent, limit or otherwise interfere with the rights of the City under Section 2-20.080 of the Municipal Code to terminate this Agreement without cause at any time (except for 90 days after a council member is
elected as provided in 2-20.080), or the right of Anderson to resign at any time from
his position.
3. Anderson may terminate this Agreement by giving the City thirty (30) days written notice in advance of resignation, at the end of which period this Agreement will terminate, unless the City and Anderson otherwise agree.
4. In the event of termination pursuant to section V.A.2, Anderson shall be entitled
to a severance payment equal to six (6) month’s salary and shall be entitled to the
continuation of the City paid health and dental benefits that Anderson is receiving at the time of separation for a six (6) month period after termination. At Anderson’s
discretion, the severance payment shall be paid either in a lump sum, or in bi-weekly
payments, beginning within ten (10) days of the effective date of termination. If
Anderson selects bi-weekly payments, Anderson may later choose to receive a lump
sum payment for the balance of the monthly severance payments. The change from bi-weekly payments to a lump sum payment for the balance will be processed as soon
as reasonably feasible and by no later than two weeks after Anderson chooses to
change to a lump sum payment for the balance. The severance payment shall be
based on Anderson’s then monthly salary. Severance benefits shall begin the first of
the month succeeding the effective date of termination. Such severance pay and health and dental benefits shall not be due or payable if Anderson is terminated after
being convicted of a felony or of a misdemeanor involving moral turpitude.
VI. MISCELLANEOUS PROVISIONS.
A. Administration
B.
. This Agreement shall be administered by the City Attorney of the City of
Saratoga (“Administrator”). All correspondence from Anderson to the City shall be directed to or through the Administrator or his or her designee.
Notices
David Anderson
. Any written notice to Anderson shall be sent to:
c/o City Hall
13777 Fruitvale Avenue Saratoga, CA 95070
Any written notice to City shall be sent to:
Richard S. Taylor City Attorney of City of Saratoga
Shute, Mihaly & Weinberger LLP
396 Hayes Street
San Francisco, CA 94102
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(Or such other address as the City Attorney may have at the time of the notice.)
C. Conflict of Interest
D.
. Anderson warrants that he presently does not have and will not acquire
any direct or indirect financial interest which would conflict with his performance of this
Agreement.
Assignment Prohibited
E.
. No party to this Agreement may assign any right or obligation
pursuant to this Agreement. Any attempted or purported assignment of any right or
obligation pursuant to this Agreement shall be void and of no effect.
Documents
F.
. All documents provided to Anderson by the City and all reports and supporting
data prepared by Anderson for the City are the sole property of the City and shall be delivered to the City upon termination of this Agreement or at the City’s written request. All confidential reports, information, exhibits and data, including but not limited to
electronic data, prepared or assembled by Anderson while he serves as City Manager are
confidential until released by the City to the public, and Anderson shall not make any of
these unreleased documents or information available to any individual or organization, other than the City Attorney without prior written consent of the City Council.
Effect of Waiver
G.
. The failure of either party to insist on strict compliance with any of the
terms, covenants or conditions of this Agreement by the other party shall not be deemed a
waiver of that term, covenant or condition, and no waiver or relinquishment of any right or
power on any given occasion shall be deemed a waiver of relinquishment of that right or power on any subsequent occasions.
Entire Agreement
H.
. The text herein shall constitute the entire Agreement between the parties.
This Agreement incorporates the entire understanding between Anderson and the City,
recites the sole considerations for the promises exchanged herein, and fully supersedes any
and all prior agreements or understandings, written or oral or implied, between the parties pertaining to the subject matter hereof. In reaching this agreement, no party has relied upon
any representation or promise except those expressly set forth herein. This Agreement
cannot be modified by the parties except in a writing that is signed by both parties, ratified
by City Council, and that expressly states that it intends to modify this Agreement.
Successors and Assigns
I.
. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of the parties.
Severability
J.
. 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.
Attorneys Fees. In the event that either party to this Agreement brings a lawsuit to enforce or
interpret any provisions of this Agreement, each party shall bear its own attorneys’ fees,
expenses and costs.
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K. Governing Law
L.
. This Agreement shall be governed by the laws of the State of California.
Interpretation
In witness whereof, the City has caused this Agreement to be signed and executed on its behalf by its
Mayor and duly attested by its City Clerk, and Anderson has signed and executed this amendment
agreement effective November 2, 2011.
. The parties agree that any ambiguity in this Agreement shall not be construed or
interpreted against, or in favor of, either party. The parties agree that ambiguities
concerning matters addressed in this Agreement should be resolved in a manner consistent
with the City’s personnel rules and procedures to the extent those rules and procedures are
not inconsistent with this Agreement.
DAVID ANDERSON CITY OF SARATOGA
_________________ __________ ___________________ _________
David Anderson Date Howard A. Miller Date Mayor
ATTEST:
___________________ __________
Ann Sullivan Date
City Clerk
APPROVED AS TO FORM:
___________________ ___________
Richard S. Taylor Date
City Attorney
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