CITY COUNCIL: Resolution Adopting Employment Agreement with Richard I. Guillen, City Administrator

Meeting Date: October 7, 2008
Prepared by: Joyce Giuffre,
Admin Services Director

City Council
Agenda Item Summary

Name: Consideration of a Resolution adopting the employment agreement with Richard I. Guillen, City Administrator.

Description: Adoption of this Resolution will provide a 12-month contractual agreement, effective January 1, 2008, for the terms and conditions of employment for Richard I. Guillen as the City Administrator. The agreement supersedes the agreement dated January 1, 2007 and incorporates the following changes.

1) Section B. Term – 1 year, January 1, 2008 through December 31, 2008
2) Section F. Compensation – $150,000 per year, retroactive to April 30, 2008
3) Section L. Conference, Dues, Subscriptions, Memberships – Addition of California City Management Foundation professional dues to be paid by the City

The agreement has been reviewed by the City Attorney.

Overall Cost:
City Funds: $14,500 estimated additional annual costs
Grant Funds: n/a

Staff Recommendation: Adopt the Resolution.

Important Considerations: The proposed Resolution adopts a successor agreement to the
existing employment agreement between the City of Carmel-by-the-Sea and Richard I. Guillen for performing the duties of the City Administrator.

Reviewed by:

________________________________ ___________________________
Don Freeman, City Attorney Date


CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION NO. 2008 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA ADOPTING THE EMPLOYMENT AGREEMENT WITH RICHARD I. GUILLEN, CITY ADMINISTRATOR BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES:

1. Adopt the Employment Agreement with Richard I. Guillen for the position of City Administrator, attached as Exhibit “A.”

2. Authorize the Mayor to execute the Agreement on behalf of the City.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 7th day of October 2008, by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:

SIGNED,

__________________________
Heidi Burch, City Clerk

ATTEST:

_______________________
SUE McCLOUD, MAYOR


EXHIBIT “A”
EMPLOYMENT AGREEMENT
THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA ("CITY") and RICHARD I. GUILLEN ("EMPLOYEE") and is dated the 7th day of October 2008.

RECITALS
A. EMPLOYEE is currently the City Administrator for CITY and has served in that capacity since January 1, 2001.

B. EMPLOYEE desires to continue serving as City Administrator.

C. The City Council as the appointing power, and RICHARD I. GUILLEN desire to agree in writing to the following terms and conditions of EMPLOYEE’s continued employment as City Administrator.

NOW, THEREFORE, the parties agree as follows:

AGREEMENT
A. DUTIES
1. CITY agrees to employ RICHARD I. GUILLEN as City Administrator of the City of Carmel-by-the-Sea to perform the functions and duties specified in the ordinances and resolutions of the CITY, and to perform other legally permissible and proper
duties and functions as the City Council may from time to time assign.

2. EMPLOYEE shall perform his duties to the best of his ability in accordance with the highest professional and ethical standards of the profession and shall comply with all rules and regulations established by the CITY.

3. EMPLOYEE shall not engage in any activity, which is or may become a conflict of interest prohibited contract, or which may create an incompatibility of office as defined under California law. Prior to performing any services under this Agreement and annually thereafter, the EMPLOYEE shall complete and file all disclosure forms required by law.

B. TERM
1. This Agreement shall be for a one (1) year period commencing January 1, 2008 and ending December 31, 2008, unless terminated by either party in accordance with the provisions set forth in Article D. of this Agreement, or until terminated by death or permanent disability of EMPLOYEE. This Agreement shall supersede and replace the existing Professional Services Agreement between the parties.

2. EMPLOYEE agrees to remain in the exclusive employ of the CITY during the term of this Agreement. However, EMPLOYEE may engage in occasional teaching, writing, or consulting performed on EMPLOYEE'S time off so long as such activities do not either interfere with EMPLOYEE'S performance of his duties hereunder, or conflict with EMPLOYEE'S obligations to the CITY. EMPLOYEE agrees that such activities are to be
subject to prior approval of the City Council.

C. HOURS OF WORK
1. It is recognized that EMPLOYEE must devote a great deal of time outside normal business hours to the business of the CITY, and to that end EMPLOYEE will be allowed to take reasonable compensatory time off as he shall deem appropriate during normal business hours. However, it is the intent of the City Council that EMPLOYEE maintain normal CITY business hours whenever possible.

D. RESIGNATION AND TERMINATION
1. EMPLOYEE may resign at any time upon providing CITY with at least sixty (60) days advance written notice of the effective date of his resignation.

2. The City Council may at any time terminate EMPLOYEE upon sixty (60) days advance written notice.

3. The parties recognize and affirm that:
a. EMPLOYEE is an "at will" employee whose employment may be terminated by the City Council without cause; and

b. There is no express or implied promise made to EMPLOYEE for any form of continued employment. This Agreement is the sole and exclusive basis for an employment relationship between EMPLOYEE and the CITY.

4. For the ninety (90) day period immediately following a general or special election at which a City Council member is elected to office the City Council agrees not to terminate the services of EMPLOYEE without cause.

5. Any deliberations and decisions by the CITY regarding the termination of EMPLOYEE'S services shall be made in closed session in accordance with the Ralph M. Brown Act. Except where the EMPLOYEE is charged with or alleged to have committed criminal misconduct or acts involving moral turpitude, and if the CITY has determined to terminate EMPLOYEE'S services, the CITY shall provide EMPLOYEE the opportunity to resign in lieu of being terminated, and the parties shall cooperate
regarding public announcements regarding EMPLOYEE'S separation from the CITY.

E. SEVERANCE PAY
1. Except as provided in sub-section E.2. below, if EMPLOYEE is terminated by the City Council pursuant to Article D. of this Agreement while still willing and able to perform the duties of City Administrator, CITY agrees to pay EMPLOYEE a cash
payment equal to six (6) months then current, aggregate salary. Said cash payment may be paid, at the option of the EMPLOYEE, as follows:

1) lump sum upon date of termination; 2) on January 1 of the calendar year following termination; or 3) in six (6) equal monthly installments. Such payment shall release the CITY from any further obligations under this Agreement.

2. In the event EMPLOYEE is terminated because of his conviction of any felony, or any crime involving moral turpitude, or any offense involving a violation of his official duties, or if the CITY determines that the EMPLOYEE has:
1) misappropriated public funds; 2) commingled public funds with his personal funds; or 3) engaged in willful corrupt conduct in office, then CITY shall have no obligation to continue the employment of EMPLOYEE or to pay the severance set forth in the above sub-section E.1.

F. SALARY
1. The CITY agrees to pay EMPLOYEE the sum of one hundred and fifty thousand dollars and no/100 dollars ($150,000), in salary per annum, retroactive to April 30, 2008,
payable in installments at the same time as other employees of the CITY are paid subject to customary withholding.

2. Thereafter and subject to an evaluation of performance on the anniversary date hereof the City Council may increase EMPLOYEE'S compensation by resolution without the need to amend this Agreement.

G. AUTOMOBILE
1. In recognition of the need for EMPLOYEE to travel on CITY business from time to time CITY shall pay EMPLOYEE the sum of three hundred and fifty dollars ($350.00) per month as an automobile allowance.

H. SUPPLEMENTAL BENEFITS
1. The City shall provide EMPLOYEE the same type and extent of benefits as provided to the CITY'S other management employees as such benefits may be amended from time to time, except for the following:

1. The EMPLOYEE shall not be entitled to the provisions of the Educational Incentive Pay Program (EIP).

2. The EMPLOYEE shall not be afforded any benefits of the Laborer’s International Union of North America, Local 270.

3. The CITY shall contribute up to 100% of the full premium on behalf of the EMPLOYEE and his qualified dependents for medical insurance available through the CalPERS CHOICE program for the term of this Agreement until and unless otherwise amended between the EMPLOYEE and the CITY.

4. The CITY shall continue to provide dental and vision coverage through the CITY’S current self-funded programs, until and unless otherwise amended between the EMPLOYEE and the CITY.

5. CITY shall make a monthly contribution to the CalPERS deferred compensation plan on behalf of EMPLOYEE in the amount of five hundred and fifty dollars ($ $550.00).

6. The CITY shall provide EMPLOYEE with a parking space in the City Hall parking lot at no cost to EMPLOYEE.

7. The CITY shall provide reimbursement to EMPLOYEE for the cost of an annual physical exam up to an amount not to exceed $500 per fiscal year.

8. The City shall provide reimbursement to EMPLOYEE for the cost of a monthly fitness club membership in an amount not to exceed $35.00 per month.

9. Effective January 1, 2007, the CITY shall provide EMPLOYEE one hundred (100) hours annual Administrative Leave per fiscal year. This leave must be taken during the fiscal year in which it is earned. There will be no ability to carry over this leave from one fiscal year to the next and there shall be no cash pay off for any such unused leave.

Notwithstanding the above-mentioned exceptions, all other actions taken by the CITY relating to benefits for executive management employees shall be considered actions granting the same benefits to EMPLOYEE. As used herein, benefits include, but are not limited to, paid holidays, retirement benefits and payments, health insurance, vision insurance, dental insurance, and life insurance.

I. PERFORMANCE EVALUATION
1. The City Council shall evaluate the performance of EMPLOYEE at least annually. As part of such annual performance evaluation the City Council and EMPLOYEE will set
written goals and objectives for the ensuing year. In addition, EMPLOYEE shall be provided a written report of the City Council's evaluation, and EMPLOYEE shall be given an opportunity to confidentially discuss the evaluation with the City Council in accordance with the Ralph M. Brown Act.

J. SURETY BOND
1. CITY and EMPLOYEE agree that EMPLOYEE shall maintain on file with CITY a faithful performance surety bond in the principal amount of $100,000.00 or an amount as may from time to time be determined by the City Council. Said bond premium shall be paid by CITY pursuant to the Carmel-by-the-Sea Municipal Code.

K. BUSINESS EXPENSES
1. CITY agrees to pay for reasonable city-related business expenses incurred by the EMPLOYEE in accordance with CITY policy.

2. CITY recognizing that EMPLOYEE is on call, CITY agrees to provide a City cellular telephone and, in addition, pay for the monthly service charge and related CITY user
charges. CITY and EMPLOYEE acknowledge that EMPLOYEE will from time to time use the City-issued cellular telephone for personal business and as such EMPLOYEE agrees to reimburse CITY for all personal calls within thirty (30) days of the City’s receipt of a cellular telephone billing statement.

L. CONFERENCE, DUES, SUBSCRIPTIONS, MEMBERSHIPS
1. CITY shall pay for the travel and related expenses of EMPLOYEE as set forth in City Policy C89-21, which may be amended from time to time by CITY without EMPLOYEE'S
consent. Expenses include those incurred by EMPLOYEE'S representation on behalf of CITY at the annual conference of the League of California Cities, the City Manager's department meetings of the League of California Cities, and EMPLOYEE'S
attendance at such other conferences and meetings as may from time to time be directed by CITY.

2. CITY shall pay such professional dues, subscriptions and memberships in such organizations necessary for EMPLOYEE to maintain professional relationships in
appropriate national, regional, state and local associations desirable for continued professional growth, advancement and benefit to CITY.

3. CITY shall pay professional dues in the International City Manager's Association, California City Management Foundation, National Society for Professional Engineers and Professional Engineer's Licensing Fee.

M. OTHER TERMS AND CONDITIONS OF EMPLOYMENT
1. The City Council, by resolution, shall fix any other terms and conditions of employment as it may determine from time to time relating to the performance of EMPLOYEE provided such terms and conditions are not inconsistent with provisions of this Agreement or the law.

N. NOTICES
1. Any notices required by this Agreement shall be in writing and either given in person or by first class mail with the postage prepaid and addressed as follows:

a. To CITY: City of Carmel-by-the-Sea
City Council
Attn: Mayor
City of Carmel-by-the-Sea
City Hall
P.O. Box CC
Carmel-by-the-Sea, CA 93921

b. To EMPLOYEE: Richard I. Guillen
4 Shady Lane
Monterey, CA 93940

O. DISPUTE RESOLUTION
1. Should either party to this Agreement bring legal action against the other (formal judicial proceedings or arbitration) the case shall be handled in Monterey County, California, and the party prevailing in such action shall be entitled to reasonable attorney's fees which shall be fixed by the judge or arbitrator hearing the case and such fees shall be included in the judgment together with all costs.

P. ARM'S LENGTH NEGOTIATIONS
1. This Agreement has been negotiated "at arm's length" and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law (including California Civil Code ∋1654) or legal decision that would require interpretation of the ambiguities in this Agreement against the party that has drafted it is not applicable and is hereby waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect
the purposes of the parties to this Agreement.

Q. INDEMNIFICATION
1. CITY shall defend, hold harmless and indemnify EMPLOYEE against any tort, professional liability claim, demand or other legal action, whether groundless or otherwise, arising out of an alleged act of omission occurring in the performance
of EMPLOYEE'S duties as City Administrator except for civil, criminal or administrative actions initiated by EMPLOYEE. CITY will pay the amount of any settlement or judgment rendered thereon.

R. ENTIRE AGREEMENT
1. This Agreement is the final expression of the complete agreement of the parties with respect to the matters specified herein and supersedes all prior oral or written
understandings. Except as prescribed herein this Agreement cannot be modified except by written mutual agreement signed by the parties.

S. ASSIGNMENT
1. This Agreement is not assignable by the CITY or by the EMPLOYEE.

T. SEVERABILITY
1. In the event that any provision of this Agreement is held or determined to be illegal or void by reason of final, non-appealable judgment, order or decision of a court having jurisdiction over the parties, the remainder of the Agreement shall remain in full force and effect unless the parts found to be void are wholly inseparable from the remaining portion of the Agreement.

U. COUNTERPARTS
1. This Agreement shall be executed simultaneously in two counterparts and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the City Council has caused this Agreement to be signed and executed in its behalf by its Mayor and duly attested by the City Clerk. It has also been executed by the EMPLOYEE.

__________________________________
RICHARD I. GUILLEN
CITY OF CARMEL-BY-THE-SEA
__________________________________
MAYOR
ATTEST:
__________________________
CITY CLERK