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HomeMy WebLinkAbout2017-1481 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2017-148 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE AN EMPLOYMENT AGREEMENT FOR THE POSITION OF CITY MANAGER WITH ANDREA MILLER TO COMMENCE ON AUGUST 5, 2017 BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized to execute on behalf of the City the Employment Agreement for City Manager between the City of San Bernardino and Andrea Miller, attached hereto as Exhibit "A" and incorporated herein. 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2s RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE AN EMPLOYMENT AGREEMENT FOR THE POSITION OF CITY MANAGER WITH ANDREA MILLER TO COMMENCE ON AUGUST 5, 2017 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 2nd day of Aug_ist 2017, by the following vote, to wit: Council Members: AYES MARQUEZ X(S) BARRIOS X VALDIVIA X SHORETT X(M) NICKEL X RICHARD X MULVIHILL X NAYS ABSTAIN ABSENT MAYOR DAVIS X L Georgeann mia, CMC, Ci Clerk i The foregoing Resolution is hereby approved this 2nd day of August 2017. R. Carey DaVenmardino Mayor City of San Approved as to form: Gary D. Saenz, City Attorney k I CITY MANAGER EMPLOYMENT AGREEMENT between the City of San Bernardino And Andrea M. Miller THIS AGREEMENT is made and entered into this 2nd day of August, 2017, by and between the City of San Bernardino, a Charter city, ("City") and Andrea M. Miller, an individual, ("Miller" or "City Manager") (collectively the Parties). RECITALS 1. The Mayor and City Council of the City of San Bernardino ("Mayor and City Council") on behalf of City desire to retain the services of Andrea M. Miller as its City Manager, as that office is established in Article IV of the Charter adopted by the people of the City of San Bernardino on November S, 2016, and filed with the Secretary of State on January 31, 2017, and became effective on the filing date, and Chapter 2.02 of Title 2 of the San Bernardino Municipal Code and any successor provision thereto, except as otherwise provided for herein, and pursuant to the California Government Code; and Miller is willing to accept the City Manager position. 2. The Mayor and City Council have determined that Miller has, prior to the date of this Agreement, attained the education and experience in the accepted competencies and practices of local government management required pursuant to Charter section 400 for appointment to the City Manager position. 3. It is the desire of the Mayor and City Council to provide certain benefits and provide an inducement for her to accept and remain in such employment, establish certain conditions of employment and the responsibilities of the parties, to ensure her full work productivity and effectiveness by assuring Miller's morale and her continued ability to make policy recommendations and decisions related to the management of the City organization that are in the best interests of the community, establish stability and predictability in the organization and community, and set working conditions of the City Manager. 4. The Parties understand that Miller is currently an employee of City and desires to accept and continue employment with the City as the City Manager of said City. 5. The Parties wish to enter into an employment agreement pursuant to the authority of and subject to the provisions of Government Code Section 53260 et seq., Charter Section 400 and 304(b), and Chapter 2.02 of Title 2 of the San Bernardino Municipal Code. AGREEMENT NOW, THEREFORE, the Mayor and City Council, on behalf of City, engage the services of Andrea M. Miller as its City Manager, and Miller agrees to serve as the City Manager, for the compensation and subject to the covenants, mutual promises and conditions as set forth herein. Page 1 of 11 1. EMPLOYMENT City hereby employs Andrea M. Miller as its City Manager and Miller hereby accepts such employment effective August 4, 2017, at 5 p.m. 2. COMMITMENTS AND UNDERSTANDINGS A. City Manager's Commitments, Duties and Authority 1) The City Manager shall be the chief executive officer of the City and shall be responsible to the Mayor and City Council for the proper administration of all affairs of the City. 2) The City Manager shall perform all the duties of the City Manager as set forth in Section 401 of the Charter, Chapter 2.02 and applicable provisions of the San Bernardino Municipal Code (jointly, the "Municipal Code"), the California Government Code, and City policies and procedures approved by the Mayor and City Council, as may be provided from time to time, and other legally permissible and proper duties and functions consistent with the office of City Manager. 3) The Mayor and City Council may also designate the City Manager as the chief executive of other City -related legal entities. Such other legal entities may include public financing authorities and joint powers authorities. 4) The City Manager shall faithfully execute all orders and instructions from the Mayor and City Council when sitting as a collective body in a lawfully held meeting. 5) The City Manager shall ensure the Mayor and City Council are informed of all aspects of important emerging issues, including the City's financial condition and future needs, and shall brief the Mayor and City Council on the business matters before them and make recommendations concerning the affairs of the City based solely on her independent, professional judgment and best practices and in the best interests of the City. 6) The City Manager shall participate in national, regional, state and local organizations such as the League of California Cities and Southern California Association of Governments (SCAG) to ensure she is aware of and employing best practices in local government management and remains aware of emerging issues affecting local government and the City. 7) The City Manager agrees to remain in the exclusive employment of City other than incidental teaching, consulting, speaking, practice of law or other non -City connected business for which incidental compensation is or is not paid and agrees that any other professional activities shall not interfere with the performance of her duties under this Agreement as determined by the Mayor and City Council. B. City Commitments 1) The City shall provide the City Manager with the compensation, incentives and benefits, specified elsewhere in this Agreement. 2) The City shall provide the City Manager with a private office, staff, equipment, supplies, and all other facilities and services adequate for the performance of the City Page 2 of 11 Manager's duties as determined by the Mayor and City Council after consultation with the City Manager. 3) The City shall pay for or provide the City Manager reimbursement for all actual business expenses. The City shall provide the City Manager a City credit card, if requested by the City Manager and reasonably available, to charge appropriate and lawful business expenses. 4) With the exception of professional dues related to Miller's practice of law, the City agrees to pay the professional dues and subscriptions on behalf of the City Manager which are necessary for the City Manager'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 the City Manager's continued professional participation, development, and advancement. 5) The City agrees to pay the travel and subsistence expenses of the City Manager to pursue official and other functions for the City, and meetings and occasions to continue the professional development of the City Manager, including, but not limited to, national, regional, state, and local conferences, governmental groups and committees upon which the City Manager serves or may serve as a member and short courses, institutes, and seminars that are necessary for the good of the City or for the professional development of the City Manager. 6) The City recognizes the desirability of representation in and before local civic, non -profits and other organizations, and the City Manager is authorized to become a member of such groups or attend the functions of the same, for which the City shall pay membership dues or cost of attendance. C. Mayor and City Council Commitments 1) The Mayor and City Council sets policy for the governance and administration of the City, and it implements its policies through the City Manager. 2) The Mayor and City Council support the maintenance of a positive and constructive work place environment. In furtherance of this, the Mayor and City Council agree that any criticism of a City staff member and/or a City program shall be done privately through the City Manager, and the City Manager shall be afforded an opportunity to correct the issues before further action is taken. 3) Neither the Mayor nor any member of the City Council or employees, consultants and volunteers of these offices shall interfere with the execution of the powers and duties of the City Manager. The City Manager shall take orders and instructions from the Mayor and City Council only when it is sitting as a body in a lawfully held meeting. 4) The Mayor and City Council commit to fully implementing the provisions of the Charter approved by voters on November 8, 2016, and allocating the necessary tools, resources, guidance and technical and professional support as required by the City Manager in her professional judgment to properly and efficiently implement its provisions and the Council - Manager form of government established therein within the first six (6) months of this Agreement. 5) On April 10, 2015, the Mayor and City Council adopted Resolution No. 2015-71 establishing the "Operating Practices for Good Governance", which were submitted to the Bankruptcy Court, and thereafter incorporated the Guidelines into Ordinance No. 1438, that was unanimously approved by the Mayor and City Council on April 17, 2017, and are contained Page 3 of 11 in Chapter 2.58 of the San Bernardino Municipal Code. The Mayor and City Council shall follow these guidelines in conducting City business and interacting with City staff, consultants, members of the community and each other. 6) The Mayor and City Council agree to meet individually on a regular basis with the City Manager, at least one time each month, at mutually agreeable dates and times, to discuss issues and challenges facing the City, concerns, opportunities, and projects, and to provide regular feedback to the City Manager regarding areas of concern and opportunities for personal and organizational improvement. 7) The Mayor and City Council agree to continue their professional development as policy makers and understanding of the Council -Manager form of government through regular participation in national, regional, state and local organizations such as the League of California Cities and Southern California Association of Governments (SCAG). 3. TERM The term of this Agreement shall commence on August 4, 2017, and remain in effect for a term of five (5) years, ending on August 5, 2022. The term of the Agreement may be extended only on the mutual written agreement of both parties. If neither party notifies the other in writing of the intent to terminate six (6) months prior to the initial termination date, the term of the Agreement will automatically be extended for an additional one year term to August 5, 2023. Three (3) months prior to the expiration of the one- year extended term, the Mayor and City Council shall notify the City Manager, in writing, if there is no intent to negotiate the City Manager's continued employment as City Manager beyond August 5, 2023. 4. PERFORMANCE APPRAISAL, GOAL SETTING AND STRATEGIC PLANNING A. Annual Performance Appraisal and Goal Setting The Mayor and City Council will annually conduct a performance appraisal of the City Manager in August of each year. Said appraisal shall include goals set forth by the Mayor and City Council as a collective body, and the Mayor and City Council and City Manager shall further. as part of the appraisal process, mutually establish a relative priority among the various goals and objectives. The goals will be reduced to writing and shall generally be attainable within the time specified and within the annual operation and capital budgets and appropriations provided. Future annual performance evaluations shall be measured against the City Manager's achievement of the goals set forth in the prior period's evaluation. The annual performance evaluation and goal setting shall be conducted by a professional facilitator mutually selected by the Parties and in accordance with specific criteria established by the Mayor and City Council which it can request the City Manager, in consultation with the facilitator, to develop. The Mayor and City Council, as a collective body, shall provide City Manager with a summary of performance findings and allow adequate opportunity for a discussion with City Manager about the appraisal. As part of this process, the City Manager will Page 4 of 11 define goals and performance objectives she believes necessary for the proper operation of the City and to attain the Mayor and City Council's policy goals. In addition to the annual performance evaluation, a majority of the Mayor and City Council may schedule performance evaluations of the City Manager as they may deem necessary. In addition to other provisions contained herein, the annual performance evaluation shall constitute a basis for the Mayor and City Council to consider any salary merit increases requested by or afforded to the City Manager and incentive bonus pay. B. Strategic Planning, Goal Setting, and Team Training and Development At least two times each calendar year, the Mayor and City Council and City Manager shall engage in Strategic Planning, goal setting and team training and development. The sessions shall be conducted by a professional facilitator mutually selected by the Parties. In the event the Parties are unable to agree upon a facilitator following reasonable attempts to obtain concurrence, the facilitator shall be selected by the City Manager based on her professional judgment and experience. In preparation for each session, the facilitator shall meet individually with each of the participants to identify potential issues, and this information will be used by the facilitator and City Manager to develop the agenda for the session. Strategic Planning, goal setting and team training and development shall generally be conducted in the first quarter of the calendar year (January, February, March) to enable the City Manager to incorporate information in the annual operating and capital improvement budgets. The other session shall generally be conducted in the third quarter of the calendar year (July, August, September). Sessions shall be set on dates and times mutually agreed upon by the Parties. In the event concurrence on the date and time is unable to be reached, the City Manager shall set the date and time that is convenient for a majority of the members of the Mayor and City Council. Additional Strategic Planning, goal setting and team training and development sessions shall be held as requested by a majority of the members of the Mayor and City Council, or as requested by the City Manager. 5. COMPENSATION A. Compensation and Required Employer Costs 1) The initial salary shall be $253,080 annually ($21,090 per month). Any future salary range adjustments and increases in salary shall be at the sole and absolute discretion of the Mayor and City Council and may be set by Resolution. 2) The City Manager shall be paid at the same intervals and in the same manner as other City employees. Page 5 of 11 3) Notwithstanding the City's salary table, the annual salary of the City Manager shall never be less than the annual salary (excluding overtime and any incentive compensation) of the City's next -highest-paid employee. In the event that a promotion, an adjustment to the salary table, or a salary reduction would result in the City Manager being paid less than the City's next -highest-paid employee's annual salary, the City Manager's annual salary will automatically, on the same effective date, be set at the annual salary of the City's next -highest-paid employee without further action by the Mayor and City Council. 4) The City contracts with the California Public Employees' Retirement System (PERS) for retirement benefits. The City Manager shall pay the employee portion of the contribution for participation in PERS. The City does not participate in Social Security other than the Medicare portion. 5) The City Manager shall be entitled to all benefits, rights, and privileges including health, disability and life insurance afforded to non-public safety Confidential - Management employees. All future changes to the package of benefits provided to City's Confidential -Management employees, including cost of living adjustments, shall apply to City Manager unless the Parties so agree. If there is any conflict between this Agreement and any resolution fixing compensation and benefits for non-public safety City Department Directors or other unclassified employees, this Agreement shall control. 6) The Mayor and City Council may, in its sole discretion, provide City Manager an additional amount of money as an incentive bonus in an amount not to exceed five percent (5%) of her annual base compensation during the then current calendar year for having fully satisfied any specific goals and objectives established by the Mayor and City Council. Incentive bonuses shall generally be considered during the annual performance evaluation. In any given year, the Mayor and City Council may determine that no incentive bonus monies should be paid to the City Manager. Determinations by the Mayor and City Council related to incentive bonuses shall have no effect on salary increases otherwise provided for herein. 6. SEPARATION A. Resignation/Retirement The City Manager may resign at any time and agrees to give the City at least 45 days' advance written notice of the effective date of the City Manager's resignation, unless the Parties otherwise agree in writing. Upon resignation, City Manager shall be compensated for accrued time in the same manner as other employees in the Management -Confidential bargaining unit. If the City Manager retires from full-time public service with the City, the City Manager shall, to the extent reasonably possible, provide six (6) months' advance notice. The City Manager's actual retirement date will be mutually established provided concurrence is not unreasonably withheld by the Mayor and City Council. Upon resignation or retirement, except as otherwise provided herein, City Manager shall not be entitled to any severance pay, Page 6ofII B. Termination and Removal 1) The City Manager is an at -will employee serving at the pleasure of the Mayor and City Council. 2) The Mayor and City Council may remove the City Manager at any time, with or without cause, by a majority vote of its members as provided in Charter section 400. Notice of termination shall be provided to the City Manager in writing. Termination, as used in this section, shall also include a request that the City Manager resign, take a reduction in salary, take a reduction of other financial benefits of the City Manager, a material reduction in the powers and authority of the City Manager, or the elimination of the City Manager's position. 3) The City Manager shall not be removed during the 60 -day period preceding or following any City election for membership on the City Council or the Office of the Mayor, or during the 60 -day period following any change in membership of the City Council or the Office of the Mayor, except upon unanimous vote of the Mayor and City Council. 4) In the event the City Manager is terminated or removed, either with or without cause, the City and City Manager agree that neither Party shall make any written or oral statements to members of the public or the press concerning City Manager's termination or removal except in the form of a joint press release which is mutually agreeable to both Parties. The joint press release shall not contain any text or information that would be disparaging to either Party. Provided, however, that either Party may verbally repeat the substance of any such press release in response to inquiries by members of the press or public. C. Severance Pay 1) In the event the City Manager is terminated by the Mayor and City Council during such time that the City Manager is willing and able to perform the City Manager's duties under this Agreement or in the event of a breach of this Agreement, the City agrees to provide the City Manager with no less than 30 days' written notice, upon the conclusion of which, the City will pay the City Manager a payment equal to twelve (12) months base salary and benefits then in effect as provided for herein including, but not limited to, vacation, health and life insurance, and CalPERS retirement service credit accrual for twelve (12) months or through the original term of the contract, whichever is shorter. In years one (1) through three (3), or from August 4, 2017, through August 5, 2020, severance pay shall be paid to the City Manager at the same intervals and in the same manner as other employees through the twelve (12) month period until the full amount of severance including CalPERS service credit is paid. In years four (4) and five (5) and during the extended term, or from August 5, 2020, through August 5, 2023, the severance shall be paid either as a lump sum or at the same intervals and in the same manner as other employees until the full amount of severance and CalPERS credit is paid, at the City Manager's discretion, or in any other manner as the Parties may mutually agree to in writing. In exchange for payment of severance, City Manager shall sign a full release, releasing City from liability for any employment claim and agrees that she will not file, initiate, or cause to be filed or initiated any action in any federal or state court for wrongful termination or other employment causes of action such as, but not limited to, discrimination. In no event shall the Page 7 of 11 City Manager receive more severance pay and benefits than the number of months then remaining on the City Manager Employment Agreement's original term. 2) In addition, the City shall extend to the City Manager the right to continue health insurance as may be required by and pursuant to the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA). The City agrees to pay the City Manager's COBRA coverage for the same number of months for which the City Manager is entitled to a lump sum cash payment above, or until City Manager either secures full-time employment or obtains other health insurance, whichever of these events first occurs. City Manager shall notify the City within ten (10) days of securing new full-time employment or insurance. 3) In the event the Charter or the San Bernardino Municipal Code is amended by Mayor and City Council action, which such action eliminates or significantly alters the Council -Manager form of government, City Manager shall be entitled to severance and other accumulated rights, benefits and payment from City as defined herein. 4) In the event the City refuses, following a written notice of noncompliance, to comply with any provision in this Agreement benefiting the City Manager, or the City Manager resigns following a formal action by a majority of the Mayor and City Council that the City Manager resign, then, in that event, the City Manager may at the City Manager's option, be deemed to be "terminated" as of the date of such refusal to comply or action to resign and this severance pay provision shall be actuated. 6) All payments required under this severance section are subject to and shall be interpreted to comply with the limitations set forth in Government Code Section 53260. D. Waiver of Severance 1) The City Manager waives her right to the severance provided for in Section 6C in the event she is terminated for any of the following reasons: (a) Conviction of a felony; (b) Continued abuse of non-prescription drugs or alcohol that materially affects the performance of City Manager's duties; (c) Repeated and protracted unexcused absences from the City Manager's office and duties; or (d) Conduct unbecoming a City employee holding the position of City Manager such as theft, dishonesty or other similarly significant misconduct which would cause discredit to the City. 2) In the event the City terminates the City Manager for any of the reasons noted in Section D1, then the City may terminate this Agreement immediately, and the City Manager shall be entitled only to the compensation accrued up to the date of termination, payments required by Section 6F below, and such other termination benefits and payments as may be required by law. The City Manager shall not then be entitled to any severance benefits provided by Section 6C. 3) In the event the City terminates the City Manager for any of the reasons noted in Section D1, the City and City Manager agree that neither Party shall make any written or oral statements to members of the public or the press concerning the City Manager's termination except in the form of a joint press release which is mutually agreeable to both Page 8 of 11 Parties. The joint press release shall not contain any text or information that would be disparaging to either Parry. Provided, however, that either Party may verbally repeat the substance of any such press release in response to inquiries by members of the press or public. E. Repayment of Severance Benefits Pursuant to Government Code Section 53243.2 if this Agreement is terminated and City Manager receives any cash settlement or severance hereunder, the City Manager shall fully repay any such monies, if City Manager is convicted of a crime involving abuse of her office or position. F. Payment for Unused Leave Balance 1) Upon separation from City employment, the City Manager shall be paid for unused accrued leave allowances consistent with provisions afforded to the Confidential - Management employees in effect at that time. Accumulated leave balances shall be paid at the City Manager's monthly salary rate at the effective date of separation. 2) In the event the City Manager dies while employed by the City under this Agreement, the City Manager's beneficiaries or those entitled to the City Manager's estate, shall be entitled to the City Manager's earned salary, and any payments for accrued benefits, including compensation for the value of all eligible accrued leave balances. 7. MISCELLANEOUS PROVISIONS A. Provisions that Survive Termination Many sections of this Agreement are intended by their terms to survive the City Manager's termination of employment with the City. These sections, and the others so intended, shall survive termination of employment and termination of this Agreement. B. Indemnification City shall defend, save harmless, and indemnify City Manager against any claim for negligent tort or omissions, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out of an alleged negligent act or omission occurring in the performance of her duties as City Manager in accordance with the provisions of California Government Code Section 825. Said indemnification shall extend beyond termination of her employment with City to provide full and complete protection to City Manager by City for any acts undertaken or committed in her capacity as City Manager, regardless of whether the notice of filing of a lawsuit for such tort, claim, demand, or other legal action occurs during or following employment with City. C. Fidelity Bonds City shall bear the full cost of any fidelity or other bonds required of City Manager relating to her service as City Manager pursuant to any law or ordinance. D. Amendments This Agreement may be amended at any time by mutual agreement of the City and the City Manager. Any amendments are to be made in writing and approved by City Manager and Mayor and City Council in open session. Page 9 of 11 E. Severability If any clause, sentence, part, section, or portion of this Agreement is found by a court of competent jurisdiction to be illegal or unenforceable, such clause, sentence, part, section, or portion so found shall be regarded as though it were not part of this Agreement and the remaining parts of this Agreement shall be fully binding and enforceable by the Parties hereto. F. Laws Affecting Title In addition to those laws affecting a City Manager, the City Manager shall have the same powers, rights and responsibilities as a Chief Executive Officer, City Administrative Officer, Administrator, and/or City Administrator as those terms are used in local, state or federal laws. G. Jurisdiction and Venue This Agreement shall be construed in accordance with the laws of the State of California, and the Parties agree that venue shall be in San Bernardino County, California. H. Entire Agreement This Agreement represents the entire agreement of the Parties, and no representations have been made or relied upon except as set forth herein. This Agreement may be amended or modified only by a written, fully executed agreement of the Parties. I. Notice Any notice, amendments, or additions to this Agreement, including change of address of either party during the term of this Agreement, shall be in writing and shall be sent by prepaid first class mail or hand -delivered to the respective Parties as follows: 1) If to the City: Mayor and City Council Attention: Mayor 290 N. "D" Street San Bernardino, California 92401 2) If to the City Manager: City Manager 290 N. "D" Street San Bernardino, California 92401 J. Attorneys' Fees In the event that any legal proceeding is instituted to enforce any term of provision of the Agreement, the prevailing party in said legal proceeding shall be entitled to recover reasonable attorneys' fees and costs from the opposing party in an amount determined by the Court to be reasonable. Page 10 of 11 K. Effect of Waiver 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, nor shall any waiver or relinquishment of any right or power at one time or times be deemed a waiver or relinquishment of that right or power for all or any other times. H. Conflict With Charter Should any provision of this Agreement be found in conflict with the Charter of the City of San Bernardino, the provisions of the Charter shall control. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. "City" CITY OF SAN BERNARDINO A Charter City By: , 0 6 , Mayor R. C ey Davis APPROVED AS TO FORM: By: ���(Cm CLI 4 - G D. enz, City Attorney ATTEST: 4Ggea Hanna, CM , City Clerk Page 11 of 11 "City Manager" Andrea M. Miller