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HomeMy WebLinkAboutAgenda Item #5 - San Bernardino - Clean - Interim CM Agreement-c1 -1- AGREEMENT FOR INTERIM CITY MANAGER SERVICES THIS AGREEMENT is made and entered into this January 18 , 2023 by and between the City of San Bernardino (“CITY”) and Charles McNeely(“EMPLOYEE”). In consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows: RECITALS This Agreement is made and entered into with respect to the following facts: A. CITY seeks to engage EMPLOYEE on an interim basis to serve in the position of Interim City Manager in accordance with the terms set forth in this Agreement; and B. EMPLOYEE desires to accept employment as Interim City Manager in consideration of and subject to the terms, conditions and benefits set forth in this Agreement; and C. EMPLOYEE represents that he is a retired annuitant of CalPERS within the meaning of Government Code §§ 7522.56 and 21221(h) (“Statutes”) and acknowledges that his compensation is statutorily limited as provided in Government Code § 21221(h). EMPLOYEE represents that, as of the effective date of this Agreement, he has not worked for another CalPERS state or contracting agency as a retired annuitant during the CITY's 2022-2023 fiscal year, and that he therefore acknowledges that he can work up to 960 hours for the CITY, a state agency or other CalPERS contracting agencies (collectively "CalPERS Agencies") during CITY's 2022-2023 fiscal year. EMPLOYEE represents that he has not received unemployment compensation from any CalPERS Agencies during the 12-month period preceding the effective date of this Agreement. EMPLOYEE further represents that his CalPERS retirement date became effective prior to the 180-day period preceding the effective date of this Agreement; and D. CITY has determined that it is necessary to hire EMPLOYEE, a retired annuitant, because the position of Interim City Manager requires special skills, and EMPLOYEE, by virtue of his experience has those special skills NOW, THEREFORE, CITY and EMPLOYEE, in consideration of the mutual covenants and agreements herein contained, agree as follows: 1. DESIGNATION OF INTERIM CITY MANAGER. In accordance with Resolution No. 2023-019, EMPLOYEE is appointed Interim City Manager of the CITY under the terms of this Agreement. 2. POSITION AND DUTIES. EMPLOYEE has been appointed by the Mayor and City Council as Interim City Manager of the City to perform, on a basis set forth in Paragraph 4 below, the duties and functions pertaining to the City Manager position, and to perform other legally permissible duties and such functions as the Mayor and City Council shall from time to time assign. The Mayor and City Council shall have the authority to determine the specific duties and functions which EMPLOYEE shall perform under this Agreement and the means and manner -2- by which EMPLOYEE shall perform those duties and functions. EMPLOYEE agrees to devote all of his business time, skill, attention, and best efforts to the discharge of the duties and functions assigned to him by the Mayor and City Council. 3. TERM; TERMINATION AND AT-WILL STATUS. This Agreement shall become effective upon the date executed both by EMPLOYEE and the Mayor, which date shall be the date first referenced above. EMPLOYEE shall commence the performance of his duties as the Interim City Manager on January 19, , 2023("Commencement Date"). This Agreement shall expire as of the first of the following to occur: (i) upon the employment commencement date of a permanent City Manager employed by CITY; (ii) upon EMPLOYEE working his 960th hour for all CalPERS Agencies during fiscal year 2022-2023 or his 960th hour in any subsequent fiscal year; or (iii) upon termination of the Agreement by either EMPLOYEE or CITY as provided below. EMPLOYEE acknowledges that he is an at-will, temporary employee of CITY who shall serve at the pleasure of the Mayor and City Council at all times during the period of his service hereunder and shall be subject to termination by at any time without advance notice and without cause. The terms of CITY’s personnel rules, policies, regulations, procedures, ordinances, and resolutions (collectively "Personnel Policies"), as they may be amended or supplemented from time to time, shall not apply to EMPLOYEE, and nothing in this Agreement is intended to, or does, confer upon EMPLOYEE any right to any property interest in continued employment, or any due process right to a hearing before or after a decision to terminate his employment. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of EMPLOYEE and nothing in this Agreement shall prevent, limit or otherwise interfere with the right of EMPOYEE to resign at any time from this position with CITY. 4. COMPENSATION. The CITY agrees to provide the following compensation to EMPLOYEE for the services of Interim City Manager: Beginning on January 19, 2023, CITY agrees to pay to EMPLOYEE for services rendered under this Agreement, the hourly rate of one hundred and thirty seven dollars and two cents ($137.02) . The City shall not pay for vacation or holidays, nor shall EMPLOYEE be entitled to any other fringe benefits. 5. ABUSE OF OFFICE. Pursuant to Government Code Sections 53243, 53243.1 and 53243.2, if EMPLOYEE is convicted of a crime involving an abuse of his office or position, all of the following shall apply: (1) if EMPLOYEE is provided with administrative leave pay pending an investigation, EMPLOYEE shall be required to fully reimburse City such amounts paid; (2) if City pays for the criminal legal defense of EMPLOYEE (which would be in its sole discretion, as it is generally not obligated to pay for a criminal defense), EMPLOYEE shall be required to fully reimburse City such amounts paid; and (3) if this Agreement is terminated, any Severance Pay and Severance Benefits related to the termination that EMPLOYEE may receive from City shall be fully reimbursed to City or void if not yet paid to EMPLOYEE. For purposes of this Section, abuse of office or position means either: (1) an abuse of public authority, including waste, fraud, and violation of the law under color of authority; or (2) a crime against public justice, -3- including, but not limited to, a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code. Notwithstanding the above, it is understood that EMPLOYEE is a CalPERS retired annuitant employed pursuant to Government Code sections 7522.56 and 21221(h) and, accordingly, shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate set forth in Section 4 of this Agreement. 6. NOTICE. Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified or by delivery of same to the custody of the United States Postal Service, or its lawful successor, postage prepared and addressed as follows: CITY Vanir Tower 290 North D Street San Bernardino, CA 92401 EMPLOYEE Home/mailing address on file with Human Resources. 7. HOURS OF WORK. EMPLOYEE shall devote the time necessary to adequately perform his duties as Interim City Manager. The parties anticipate that EMPLOYEE will work a sufficient number of hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special Mayor and City Council meetings, community events and other CITY functions as appropriate or directed. However, in no event shall EMPLOYEE be required to work in excess of 960 hours in fiscal year 2020-2021 and 960 hours per each subsequent fiscal year for CITY, including hours worked for other CalPERS Agencies during such fiscal years. The position of Interim City Manager shall be deemed an exempt position under California wage and hour law. It is the intent of the parties to compensate EMPLOYEE only to the extent permitted under the Statutes and corresponding CalPERS regulations and policy statements. The Rate of Pay set forth above is based on the salary limitations established by CalPERS in accordance with Section 21221(h) which provides that the Rate of Pay shall be no less than the minimum or greater than the maximum hourly rate for the City Manager position as listed on the City’s publicly available pay schedule. EMPLOYEE will comply with all applicable CalPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CalPERS. Additionally, EMPLOYEE shall keep CITY continually appraised of any hours worked by EMPLOYEE for other CalPERS Agencies during the term of this Agreement. 8. WAIVER. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver. -4- 9. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of the parties considering the subject matter hereof and all prior agreements or understanding, oral or written, are hereby merged herein. This Agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment, signed, and acknowledged by both of the parties thereto. If any portion or provision hereof is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement or portion thereof shall be deemed severable and shall be effective and shall remain in full force and effect. CITY OF SAN BERNARDINO By: _______________________________ Date: _______________________ EMPLOYEE By: _______________________________ Date: _______________________