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HomeMy WebLinkAbout2009-061 I 2 3 4 5 6 7 8 RESOLUTION NO. 2009-61 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN EMPLOYMENT AGREEMENT BETWEEN CHARLES E. MCNEELY AND THE CITY OF SAN BERNARDINO FOR THE POSITION OF CITY MANAGER TO COMMENCE JUNE 1, 2009, AND AUTHORIZING NEGOTIATION OF A TRANSITIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CHARLES E. MCNEELY DURING THE INTERIM PERIOD UNTIL JUNE 1, 2009 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and 10 directed to execute on behalf of said City the Employment Agreement between Charles E. II McNeely and the City of San Bernardino, which is attached hereto, marked Exhibit "A", and 12 incorporated herein by reference as fully as though set forth at length. 13 SECTION 2. It is recognized that between the date this resolution is adopted and the 14 commencement date of the Employment Agreement on June 1, 2009, Charles E. McNeely 15 may be asked to provide services to the City of San Bernardino as part of his transition to the 16 City Manager position, while he is still employed by the City of Reno, Nevada. Should that 17 need arise, the Mayor of the City of San Bernardino is hereby authorized and directed to 18 negotiate on behalf of said City a Transitional Services Agreement between the City of San 19 Bernardino and Charles E. McNeely, at an hourly cost not to exceed that provided for in 20 Section 4 of the attached Employment Agreement. Any such Transitional Services 21 Agreement shall be subject to the approval of the Common Council of the City of San 22 Bernardino following legal review by the City Attorney of the City of San Bernardino. 23 SECTION 3. The authorization to extend the above-referenced agreement IS 24 rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage 25 of this resolution. 26 III 27 III 28 III -1- 2009-61 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN EMPLOYMENT AGREEMENT BETWEEN CHARLES E. MCNEELY AND THE CITY OF SAN BERNARDINO FOR THE POSITION OF CITY MANAGER TO COMMENCE JUNE 1,2009, AND AUTHORIZING NEGOTIATION OF A TRANSITIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CHARLES E. MCNEELY DURING THE INTERIM PERIOD UNTIL JUNE 1,2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2009. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a i oint special meeting thereof, held on the .1.9.tl1,day of M:lTC'h ,2009, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA X BAXTER X BRINKER X - (VACANT) KELLEY X JOHNSON X MCCAMMACK X - Q a.dv..J.. h. ~ CitY-Clerk The foregoing resolution is hereby approved this 19~ day of March 23 24 25 26 27 28 Appro ed as to form: By: ?~ -2- 2009-61 EXHIBIT "A" 1 EMPLOYMENT AGREEMENT 2 THIS AGREEMENT is made and entered into this 19th day of March, 2009, by and 3 between the CITY OF SAN BERNARDINO, a charter city ("City"), and CHARLES E. 4 MCNEELY, an individual ("McNeely"). 5 WHEREAS, the City has a need for the services of a City Manager; 6 WHEREAS, McNeely is competent, trained, and qualified for the position of City 7 Manager; and 8 WHEREAS, the parties desire to enter into this Agreement to outline the duties and 9 responsibilities of the parties, 10 NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 11 1. APPOINTMENT. McNeely is hereby appointed to, and does hereby accept, 12 such appointment of the office of City Manager of the City of San Bernardino effective June 13 1,2009. 14 2. TERM. The term of this Agreement shall commence June 1, 2009 and l5 terminate June 1,2012. No later than May I, 2011, the Mayor shall provide written notice to 16 McNeely of the Mayor's intent to recommend or not to recommend extending the term of this l7 Agreement. If the Mayor elects to recommend extending the term of this Agreement, then the 18 Mayor shall seek approval of such recommendation from the Common Council. If the Mayor 19 elects not to recommend extending the term of this Agreement, or if the Common Council 20 does not approve the Mayor's recommendation to extend the term of this Agreement by June 21 1, 2011, then McNeely shall continue in his employment under the terms of this Agreement 22 until its natural expiration on June 1,2012, and McNeely shall have no right to any severance 23 payment unless McNeely is terminated as provided in Section 3(a) of this Agreement. 24 3. TERMINATION. Under the terms of this appointment, McNeely serves as an 25 "at-will" employee and may be terminated at any time, with or without cause pursuant to the 26 provisions of the San Bernardino City Charter and this Agreement. Nothing in this 27 Agreement, the San Bernardino City Charter, any statute, ordinance, or rule shall be construed 28 as creating any vested right in such appointment or in employment with the City. -1- 2009-61 1 a. If during the term of this Agreement, McNeely is terminated without 2 cause, he shall be entitled to severance pay equal to twelve (12) months of his then current 3 salary and he shall be entitled to compensation for any accrued and unused leave per 4 Resolution No. 2007-345 as amended or its successor. The severance payment shall be 5 conditioned upon McNeely executing a separation agreement providing a release and waiver 6 of any and all claims against City, its officers, employees, and agents arising out of 7 McNeely's employment with City and the termination thereof. The severance payment shall 8 be McNeely's sole and exclusive remedy for termination without cause. 9 b. If during the term of this Agreement, McNeely is terminated for cause, 10 McNeely shall have a right to a hearing before the Mayor in accordance with Section 52 of 11 the San Bernardino City Charter, which authorizes the Mayor to discharge the City Manager 12 for cause, subject to the laws of the State of California. In the event McNeely voluntarily 13 resigns his position with the City, then McNeely shall give City thirty (30) days written notice 14 in advance of the effective date of his resignation, unless the parties otherwise agree. 15 McNeely shall have no right to any severance payment, and shall only be entitled to 16 compensation for any accrued and unused leave per Resolution No. 2007-345 as amended or l7 its successor, upon the occurrence of any of the following events: (i) upon mutual written 18 agreement by the parties to terminate this Agreement; (ii) upon McNeely's voluntary 19 resignation; (iii) upon the death of McNeely; (iv) upon the natural expiration of the term of 20 this Agreement; or (v) upon McNeely's termination for cause. 2l c. For purposes of this section, "cause" is defined as: (i) a willful breach 22 of this Agreement, (ii) neglect or lack of loyalty in the performance of the City Manager's 23 duties, or (iii) any acts of dishonesty, fraud, misrepresentation, or other acts of moral 24 turpitude. For purposes of this section, "loyalty" is defined as the duty of the City Manager to 25 avoid fraud, bad faith, usurpation of city government opportunities, and self-dealing. 26 4. SALARY. McNeely shall be compensated at an annual base salary equal to 27 Two Hundred and Seventy-Five Thousand Dollars ($275,000). This annual base salary shall 28 be payable bi-monthly at the same time as other city employees. Consistent with the -2- 2009-61 1 schedule and process applicable to other employees in the Management/Confidential Group 2 per Resolution No. 2007-345, the Mayor shall conduct a performance evaluation of McNeely 3 after six (6) months from the commencement date of this Agreement, and annually thereafter, 4 and at the Mayor's discretion based on the completed performance evaluation, the Mayor may 5 award McNeely a merit increase of up to five percent (5%) annually. 6 5. VOLUNTARY 10% "GIVEBACK." In recognition of the extraordinary 7 financial issues facing the City of San Bernardino and other local govermnents, and consistent 8 with the sacrifice made by other city employees, McNeely has voluntarily agreed to give back 9 ten percent (10%) of his salary in accordance with Resolution No. 2009-35. Accordingly, if lO and when the City restores the 10% concession provided by employees in the 1l Management/Confidential Group per Resolution No 2009-35, or any portion thereof, the 10% 12 voluntary "giveback" provided herein by McNeely shall also be commensurately restored. 13 6. FRINGE BENEFITS. McNeely shall be entitled to the benefit package 14 established for the Management/Confidential Group, including but not limited to, health, l5 dental, vision, leave, retirement, long-term disability coverage, life insurance, and other 16 benefits as provided in Resolution No. 2007-345 as amended or its successor. 17 a. For purposes of "vacation leave," McNeely shall be provided an initial 18 bank of one hundred (100) hours of vacation leave and shall be given credit for twenty-five 19 (25) years of continuous service for purposes of accruing vacation leave per Resolution No. 20 2007-345 as amended or its successor. On or before September 1st of each year, McNeely 21 shall notify the Finance Director of the number of vacation hours (not to exceed 100 hours in 22 a calendar year) that he wishes to sell back to City and receive payment for such in the month 23 of October. 24 b. Effective June 1, 2009, McNeely shall receive a One-Thousand Dollar 25 ($1,000) per month contribution from City to the 457 Deferred Compensation Program 26 administered by City per Resolution No. 2007-345 as amended or its successor. 27 c. McNeely shall be entitled to the vehicle reimbursement allowance 28 provided per Resolution 2006-428 as amended or its successor. -3- 2009-61 1 d. McNeely shall be eligible for an annual comprehensive medical 2 examination provided through City at City's expense, which shall not exceed One Thousand 3 Dollars ($1,000). 4 e. City shall pay McNeely's membership in the International City/County 5 Management Association. Membership in other professional organizations paid by the City 6 shall be subject to approval by the Mayor. In accordance with City travel and other policies, 7 City will reimburse reasonable conference fees, travel, meals, and other authorized expenses 8 incurred by McNeely as part of his official functions and duties, as well as professional and 9 official travel to meetings and conferences for appointive positions and professional 10 organizations approved by the Mayor, so long as such amounts are also within the scope of II the City's annual budget approved by the Common Council. McNeely must provide copies of 12 receipts or other detail for such expenses, as required by City policy. l3 7. RELOCATION ASSISTANCE. In consideration of the cost and expense 14 McNeely will incur to relocate from his existing out-of-state residence to the City of San lS Bernardino, the City shall provide McNeely a one-time stipend of Fifteen Thousand Dollars l6 ($15,000) for relocation assistance. Payment of the relocation assistance stipend is contingent l7 upon McNeely establishing his residence within the boundaries of the City of San Bernardino. l8 If for any reason this Agreement is ended prior to June 1, 2010, then McNeely shall repay 19 City one-twelfth of the relocation assistance stipend for every month or portion thereof 20 remaining until June 1,2010, or if for any reason during the term of this Agreement McNeely 21 establishes his residence outside the boundaries of the City of San Bernardino, then McNeely 22 shall repay City the entire relocation assistance stipend. 23 8. MOONLIGHTING. McNeely will focus his professional time, ability, and 24 attention on City business during the term of this Agreement. To the extent consistent with 25 applicable law, McNeely shall not engage in any other business duties or pursuits whatsoever 26 or, directly or indirectly, render any services of a business, commercial, or professional nature 27 to any other person or organization, whether for compensation or otherwise, without prior 28 consent of the Mayor; except that the expenditure of reasonable amounts of time not in -4- 2009-61 1 conflict with the City's needs and interests, for educational, charitable, community, and 2 professional activities shall not be deemed a breach of this Agreement and shall not require 3 prior consent. This Agreement shall not be interpreted to prohibit McNeely from making 4 passive personal investments, occasional teaching at a local institution of higher education, or 5 conducting private business affairs if those activities do not materially interfere with the 6 duties of the City Manager or create conflicts of interest. 7 9. ANNUAL WORKSHOP WITH MAYOR AND COMMON COUNCIL. 8 McNeely hereby requests, and the Mayor and Common Council hereby agree, that within 9 three (3) months after commencement of the term of this Agreement, and annually thereafter, lO the Mayor and Common Council shall schedule and conduct with the City Manager an annual 11 workshop, within the corporate boundaries of the City of San Bernardino, to discuss and l2 establish goals and priorities for the City of San Bernardino. 13 10. BONDING. If applicable, the City shall bear the full cost of any fidelity or 14 other bonds required of McNeely in the performance of his duties as City Manager. 15 11. ENTIRE AGREEMENT. This Agreement contains the entire agreement 16 between the parties. Any correspondence, letters, documents, or discussions leading up to this 17 Agreement which deal with the terms contained herein are superseded by this Agreement. 18 12. SEVERABILITY. If any part of this Agreement is in conflict or inconsistent 19 with the applicable provisions of federal, state, or city statutes, or it is otherwise held to be 20 invalid or unenforceable by any court of competent jurisdiction, such part or provision shall 2l be suspended and superseded by such applicable law or regulations, and the remainder of this 22 Agreement shall not be affected thereby. 23 13. AMENDMENT. This Agreement may only be amended by a written agreement 24 executed by the parties, and may not be amended by oral agreement. 25 III 26 III 27 III 28 III -5- 2009-61 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 2 day and date first shown. 3 ATTEST: CITY OF SAN BERNARDINO 4 BY:~);'~ Rache lark, CIty Clerk 5 6 7 8 APPROVED AS TO FORM: CHARLESE.MCNEELY 9 10 1:~ C~jnJt~ 11 sF. Penman, City Attorney 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 -6-