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Agreement - City of Gilroy - Employment Agreement for City Administrator Jimmy Forbis - Signed 2023-04-11FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING Page 1 of 7 Employment Agreement This Employment Agreement is made and entered into this 3rd day of April, 2023, by and between the CITY OF GILROY, California, a municipal corporation, (hereinafter called "Employer") and JIMMY FORBIS, (hereinafter called "Employee") both of whom agree as follows: Section 1: Term This agreement shall remain in full force and effect from April 3, 2023 until terminated as provided in Sections 6 or 7 of this agreement. Section 2: Duties and Authority Employer employs Jimmy Forbis as City Administrator to perform the functions and duties specified in the City of Gilroy charter and to perform other legally permissible and proper duties and functions. Section 3: Compensation A. Base Salary: Employer agrees to pay Employee an annual base salary of $277,614.00 payable in monthly installments ($23,134.37) on the first business day of the month for the prior month of service. B. Future Salary Increases: Employee’s annual base salary will be ten percent (10%) above the highest paid executive-level position in the City. If the highest paid executive-level employee receives a cost-of-living percentage increase approved by the City Council, the same cost-of-living percentage increase will be provided to the Employee. C. Effective January 1, 2023, Employer shall contribute to the Employee’s 457 Deferred Compensation Plan (employee must select from an already established city plan) an amount equivalent to one hundred percent (100%) of the Internal Revenue Code regular maximum annual 457 plan contribution limit. The 2023 limit is $22,500 and this amount may change annually. Employer’s 457 plan contribution shall be made monthly with Employee’s payroll. D. Other than the above, there is no guarantee or promise of any increase in salary or deferred compensation benefit. Section 4: Benefits, Vacation and Leaves of Absence A. Except as specifically provided herein, Employer agrees to provide Employee the same level of health insurance, disability and life insurance, retirement, sick leave (accrue 8 hours per month/12 days per year) and other benefits provided to department head employees of the City of Gilroy. B. Effective January 1, 2023, employee shall accrue vacation at the rate of 20 days/160 hours per working year (accrued at rate of 13.33 hours per month). Future vacation accrual changes shall be at the same rate and schedule as other department hea d employees of the City of Gilroy. DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING 2 C. Employee shall have a bank of 44 hours paid personal leave benefits, which shall be replenished on the first day of each fiscal year. Unused personal leave hours shall carry over from year to year and there shall be no cap on personal leave accrual. D. Employee shall have a bank of 80 hours of paid administrative leave benefits (beginning with FY 21), which shall be replenished on the first day of each fiscal year. Unused administrative leave hours shall carry over from year to year and there shall be n o cap on administrative leave accrual. E. Once per fiscal year, the Employee may elect to cash out up to eighty (80) hours of available personal leave and/or administrative leave. F. Employee may not use accrued leave to extend their employment prior to resignation or retirement. G. Upon termination of Employee's employment for whatever reason, Employee or his estate, shall be compensated for all accrued, but unused vacation time, paid holidays and other benefits, to the fullest extent provided by state law and City of Gilr oy policy. Administrative leave hours and personal leave hours shall only be compensated to the maximum of eighty (80) hours plus the current fiscal years’ accrual as indicated in 4C, 4D, and 4E above. Upon termination, unused sick leave (if any) is not compensated, but is reported to California Public Employees Retirement System (“CalPERS”) for service credit if Employee retires from the City of Gilroy consistent with CalPERS regulations. Section 5: Use of City Pool Vehicle For the term of this agreement, Employer agrees to assign Employee, a city pool vehicle to utilize for City of Gilroy business. In addition, Employee may take vehicle home (Morgan Hill, CA) and may drive vehicle to and from work. Section 6: General Business Expenses Employer agrees to budget for and to pay for professional dues and subscriptions of the Employee necessary for continuation and full participation in the League of California Cities and ICMA. Subject to budgeting approved by the City Council, Employer will also pay for professional dues and subscriptions of the Employee necessary for his membership and participation in other similar national, regional, state, and local associations, and organizations necessary and desirable for the Employee's continued professional participation, growth, and advancement, and for the good of the Employer. Employer agrees to budget for and to pay for travel and subsistence expenses of Employee for professional and official travel, meetings, and occasions to adequately continue the professional development of Employee and to pursue necessary official functions for Employer, through the League of California Cities, and the ICMA, and committees of the League of California Cities and ICMA in which Employee serves as a member. Subject to budgeting approved by the City Council, Employer will also pay for travel and subsistence expenses of Employee for professional and official travel, meetings and occasions of other similar national, regional, state, and local governmental groups and committees in which Employee serves as a member. DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING 3 C. Subject to budgeting approved by the City Council, Employer also agrees to budget for and to pay for travel and subsistence expenses of Employee for short courses, institutes, and seminars that are necessary for the Employee's professional development and for the good of the Employer. At least annually, the Employee will provide Employer with a written report of such professional development activities. D. Employer recognizes that certain expenses of a non-personal but job-related nature are incurred by Employee and agrees to reimburse or to pay said general expenses. Subject to appropriation, the finance director is authorized to disburse such moneys upon receipt of duly executed expense or petty cash vouchers, receipts, statements or personal affidavits. Section 7: Performance Evaluation Employer shall provide a written performance appraisal to Employee not less than annually. The appraisal process shall be in accordance with specific job criteria to be developed jointly by Employer and Employee. Job criteria may be added, modified or deleted by the Employer, in consultation with Employee. At a minimum the appraisal process shall include the opportunity for both parties to: (1) prepare a written evaluation, (2) meet and discuss the evaluation, and (3) present a written summary of the evaluation results. The final written evaluation should be completed and delivered to the Employee within 30 days after the evaluation meeting. Receipt of a performance appraisal does not guarantee an increase in compensation. Section 8: Hours of Work It is recognized that the Employee must devote a great deal of time outside the normal hours of business for the City, and to that end Employee shall be allowed to establish an appropriate work schedule. Section 9: Outside Activities The employment provided for by this Agreement shall be the Employee's sole employment. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to Employer and the community, subject to prior approval by the City Council, Employee may elect to accept limited teaching, consulting or other business opportunities which do not interfere with nor create a conflict of interest (or the appearance of a conflict of interest) with the performance of his duties or obligations under this Agreement, or place the City, the City Council or the Employee in an unfavorable light. Section 10: Involuntary Termination For the purpose of this agreement, involuntary termination of employment shall occur: A. Upon the death or continued inability of Employee to perform the essential functions and duties of the job for a period greater than twelve-work weeks in any twelve-month period, whether such inability results from Employee's physical or mental disability, or a serious health condition, unless a longer disability period is agreed to by the City Council. DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING 4 B. Following a vote by a majority of the City Council to terminate the Employee which vote occurs at a duly authorized public meeting. If the City Council is not able to provide Employee with thirty (30) days’ notice, the Employer shall continue to compensate the employee as described by this agreement for a period of thirty (30) days. C. If the Employee resigns following an offer made by a majority of the City Council to accept resignation. Section 11: Severance A. If after the commencement of the Term of this Agreement set forth in Section 1 above, employment under this Agreement is involuntarily terminated as defined in Section 10 above, for reasons other than death or disability as provided in Section 10A above, and for reasons that do not constitute “Cause” as defined below, provided that Employee signs a release of claims for the benefit of Employer, and its officers, agents and representatives, Employer shall pay to Employee (in addition to any other amounts that may be due to Employee for salary earned as of the date of termination, or accrued but unused vacation or leaves), as consideration for such release, a lump sum cash payment as severance in an amount equal to six months base salary in effect at the time of termination. In addition, and provided that Employee is eligible to and elects to continue his health insurance and life insurance benefits, Employer will pay on Employee's behalf the premiums for such benefits for the same six-month period. At Employee's option, payment of such funds may be made (i) by lump sum payment upon the eighth (8 th) day after Employee signs the release of claims; (ii ) by lump s um payment up on the later of the eighth (8th) day after Employee signs the release of claims or the first (1st) business day of January thereafter; or (iii) in six (6) equal monthly installments starting the last day of the month after Employee signs the release of claims. Employer shall make all required employment and tax withholdings and deductions prior to making any payments to Employee pursuant to the provisions of this Section 11A. B. Concurrently with Employee’s execution of the release identified in Section 11.A above, and so long as Employee represents and warrants, in writing, to Employer that Employee is unaware of any facts which support Employee’s involuntarily termination for reasons that may or in fact constitute or lead to a finding of “Cause” as defined below, and there are no facts known to Employer which may or in fact constitute or lead to a finding of “Cause” as defined below, Employer shall execute a release of claims for the benefit of Employee and his heirs, estate, administrators and executors, consistent in scope to the release of claims signed by Employee. C. If Employee is involuntarily terminated as defined in Section 8 for reasons constituting "Cause", then Employer is not obligated to pay severance under this section. "Cause" constitutes the conviction (including entry of guilty plea or plea of nolo contendere) of any misdemeanor or felony criminal act committed in the course of employment, a crime of moral turpitude, or crime which resulted in personal gain to the Employee; gross neglect or willful failure to perform the duties of the City Administrator, which neglect or failure persists for thirty (30) days after the date of receipt of written notice from Employer to Employee. D. Employee agrees that the payment of severance payments by the City under this section shall constitute his sole remedy for any claim based upon the termination of his employment with City. DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING 5 Section 12: Resignation In the event that Employee voluntarily resigns his position with Employer, he shall provide a minimum of 30 days’ notice unless the parties agree otherwise. In the event of resignation, Employer shall owe Employee nothing other than amounts that may be due to Employee for salary earned as of the date of termination and accrued but unused vacation or leaves. Upon notice of resignation, Employer shall have the option of relieving Employee of his duties and responsibilities prior to the effective date of resignation, provided that Employer continues to pay all amounts due to Employee for salary and benefits through and including the date of resignation. Section 13: Indemnification A. To the fullest extent permitted by law, Employer shall defend, save harmless and indemnify Employee against any and all claims, losses, damages, judgments, interest, settlements, fines, court costs and other reasonable costs and expenses of legal proceedings including attorneys fees, and any other liabilities incurred by, imposed upon, or suffered by Employee in connection with or resulting from any claim, action, suit, or proceeding, actual or th reatened, arising out of or in connection with the performance of his duties. Said duty to defend, indemnify and save harmless shall include, without limitation, any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, that is asserted by a third-party other than the Employer and arises out of an alleged act or omission occurring in the performance of Employee's duties or resulting from his exercise of judgment or discretion in connection with the performance of his duties or responsibilities, unless the act or omission involved Employee's criminal act, intentional misconduct, or willful or wanton misconduct. The Employee shall promptly give written notice of any claim, threatened claim or litigation. Provided that prompt written notice is given, Employee may request, and the Employer shall not unreasonably refuse to provide independent legal representation with legal counsel selected by Employer at Employer's expense and subject to Employee's approval of the choice of legal counsel, which approval shall not be unreasonably withheld. Legal representation, provided by Employer for Employee, shall extend until a final determination of the legal action including all appeals brought by either party, and will be provided under a reservation of rights to not pay any judgment, compromise or settlement if it is established by a judicial decision or jury verdict after completion of all appeals that the claim arose out of an act that fell outside the scope of Employee's duties and employment or was the result of a criminal act, or willful or wanton misconduct of the Employee. B. The duty of defense shall include reimbursement of any out-of-pocket expenses incurred by Employee in connection with his service as a witness, party or other participant in litigation, whether such service occurs during or after the termination of Employment. C. Any duty of Employer to defend or indemnify Employee is contingent upon Employee's full, open and honest cooperation with defense counsel for Employer and Employee. Said duties of defense, indemnity and cooperation shall survive the termination of employment under this Agreement. DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING 6 D. Employer may elect, at its expense, to obtain policies of insurance that provide coverage for liabilities that are the subject to the foregoing indemnification and defense provisions. The contractual indemnity and defense provisions set forth above are in addition to any defense or indemnity that may be provided to Employee under any contract of insurance, and are not intended to in any way limit , waive or relinquish any right to defense or coverage from a third-party insurer. Section 14: Bonding Employer shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. Section 15: Notices Notice pursuant to this Agreement shall be given by depositing in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Gilroy, Attention: Mayor, 7351 Rosanna Street, Gilroy, CA 95020 (2) EMPLOYEE: Jimmy Forbis, 17010 Holiday Drive, Morgan Hill, CA, 95037 Alternatively, notice required pursuant to this Agreement may be personally given by hand-delivery to the designated person. Notice shall be deemed given as of the date of personal service or as the date of deposit of such written notice in the course of transmission in the United States Postal Service. Section 16: General Provisions A. Integration. This Agreement sets forth and establishes the entire understanding and agreement between the Employer and the Employee relatin g to the employment of the Employee by the Employer. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any provision of this agreement during the life of the agreement. Such amendments shall be incorporated and made a part of this agreement. B. Binding Effect. This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Severability. The invalidity or partial invalidity of any portion of this Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they have been executed by both parties subsequent to the expungement or judicial modification of the invalid provision. D. This agreement was the subject of negotiation in which each side w as advised by professional advisors of his/its own choosing. Accordingly, any presumption that any provision of this agreement should be construed for or against one side or the other is expressly disclaimed. DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 FINAL AGREEMENT FOLLOWING 4.3.23 COUNCIL MEETING 7 E. This Agreement is entered into under the laws of the State of California, and venue for any action concerning this Agreement shall be limited to the Superior Court of the County of Santa Clara. Employer and Employee have both read and understand and agree to the provisions of California Government Code Sections 53243 through 53243.4, which are required by law to be included in this Agreement. Said provisions are incorporated into this Agreement by reference as though set out in full herein. Executed at Gilroy, California, on the date and year first ab ove written. EMPLOYEE: EMPLOYER: JIMMY FORBIS MARIE BLANKLEY, MAYOR By: ____________________________ By: _____________________________ APPROVED AS TO FORM: ATTEST: _________________________________ ________________________________ City Attorney City Clerk DocuSign Envelope ID: 92395061-7D4E-4905-A599-452A649E0214 4/10/2023 4/11/2023 4/11/2023 4/11/2023