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HomeMy WebLinkAboutGabriel Gonzalez - Employment AgreementFINAL AGREEMENT Employment Agreement This Employment Agreement is made and entered into this 7th day of March, 2016, by and between the CITY OF GILROY, California, a municipal corporation, (hereinafter called "Employer ") and GABRIEL GONZALEZ, (hereinafter called "Employee "), both of whom agree as follows: Section 1 : Term This agreement shall remain in full force and effect from March 22, 2016 until terminated as provided in Sections 8, 9 or 10 of this agreement. Section 2: Duties and Authority Employer employs Gabriel Gonzalez 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 $210,000.00 payable in monthly installments on the last business day of the month. B. Consideration shall be given on an annual basis to increase compensation, however, there is no guarantee or promise of any increase or the amount thereof. 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. Upon commencing employment, the Employee shall begin to accrue vacation at the rate of 10 days per working year (accrued at rate of 0.833 days per month). Employee shall accrue vacation at the same rate and schedule as other department head employees of the City of Gilroy. C. Upon commencing employment, the Employee shall have a bank of 44 hours paid personal leave benefits, which shall be replenished to the extent it has been used as of the first day of each fiscal year. C. Upon commencing employment, the Employee shall have a bank of 56 hours of paid administrative leave benefits, which shall be replenished to the extent it has been used as of the first day of each fiscal year. D. 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, including, without limitation, unused personal leave days and administrative leave days, to the fullest extent provided by state law and City of Gilroy policy. 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. 1RSHV56533.2 032408-04706124 FINAL AGREEMENT Section 5: Monthly Vehicle Allowance Employer agrees to pay to Employee, during the term of this Agreement and in addition to other salary and benefits herein provided, the sum of $4,200.00 per year, payable monthly, as a vehicle allowance to be used to purchase, lease, or own, operate and maintain a vehicle. Employee shall be responsible for paying for liability, property damage, and comprehensive insurance coverage upon such vehicle and shall further be responsible for all expenses attendant to the purchase, operation, maintenance, repair, and regular replacement of said vehicle. The Employer shall reimburse the Employee at the IRS standard mileage rate for any business use of the vehicle beyond the greater Gilroy area. For purposes of this Section, use of the car within the greater Gilroy area is defined as travel to locations within a 50 mile radius of Gilroy City Hall. Section 6: Retirement The Employer agrees to enroll the Employee into the California Public Employee Retirement System (CaIPERS) retirement plan for which the Employee qualifies on employment start date in accordance with the Public Employee Pension Reform Act. Based on Employee's work history, it has been determined that Employee qualifies as a "New" member of CaIPERS and will, therefore, be enrolled in the CaIPERS 2% at 62 plan. The Employer will pay the CaIPERS employer contribution and the Employee will pay the employee contribution as required. The current CaIPERS employee rate for "New" members is 6.25% and is a pre -tax payroll deduction from the Employee's payroll in accordance with IRC 4102. In the future, CaIPERS may adjust the employee rate to conform to the Public Employee Pension Reform Act requirement that "New" members contribute at least 50% of the total normal cost of the CaIPERS benefit. In addition to the Employer's payment to the state or local retirement system referenced above, Employer agrees to execute all necessary agreements provided by ICMA Retirement Corporation (ICMA -RC) or other Section 457 deferred compensation plan for Employee's continued participation in said supplementary retirement plan. Section 7: 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. 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 1RSH1756533.2 2 032408- 04706124 FINAL AGREEMENT 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 8: 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. B. Following a vote by a majority of the City Council to terminate the Employee or to suspend Employee without pay for a period of greater than thirty (30) days, which vote occurs at a duly authorized public meeting. C. If the Charter is amended to eliminate the position of City Administrator, eliminate fifty percent (50 %) or more of the City Administrator's duties or re- assigns fifty percent (50 %) or more of the City Administrator's duties to other job positions. Termination shall be deemed to occur upon the effective date of such amendment; provided, however, that a Charter Amendment that simply retitles the City Administrator position to City Manager does not constitute involuntary termination. 'D. If without the agreement of Employee, the Employer reduces the base salary, compensation or any other financial benefit of the Employee, unless such reduction is applied in no greater percentage than the average reduction of all department heads. Termination shall be deemed to occur upon the effective date of such reduction. E. If the Employee resigns following an offer made by a majority of the City Council to accept resignation. F. If Employee resigns following a breach by Employer of any material provision of this Agreement, which breach is not cured within 30 days after written notice being given of such breach. Written notice of a breach of contract shall be provided in accordance with the provisions of Section 17 of this Agreement. Section 9: 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 8 above, for reasons other than death or disability as provided in Section 8A 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 1RSH1756533.2 032408 -04706124 FINAL AGREEMENT 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 (8th) day after Employee signs the release of claims; (ii) by lump sum payment upon the later of the eighth (8t) day after Employee signs the release of claims or the first (1S) 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 9A. B. Concurrently with Employee's execution of the release identified in Section 9.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; material violation of any City Rule or Regulation; 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 City 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. Section 10: 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 E_ mployee 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 11: 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. 1RSH1756533.2 4 032408 -04706124 FINAL AGREEMENT Section 12: 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 13: 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 14: Moving and Relocation Expenses A. Employee agrees to establish residence within the corporate boundaries of the City of Gilroy within six (6) months of commencing employment, and thereafter to maintain residence within the corporate boundaries of the City of Gilroy. B. Employer shall reimburse Employee for the expenses of moving his personal property from Los Banos, California to Gilroy, California in an amount not to exceed $1,000.00 and upon presentation of expense receipts. Reimbursable moving expenses include packing, moving, storage costs, unpacking, and insurance charges. C. Employer shall pay Employee an interim housing supplement/reimbursement in a total maximum amount of $12,000.00 to provide temporary housing in the City of Gilroy for a period commencing on the start date of employment, and continuing for a maximum of five (5) months. Reimbursement shall occur on presentation of interim housing cost receipts. Section 1S: Indemnification D. 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 threatened, 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, 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 1RSH1756533.2 5 032408 - 04706124 FINAL AGREEMENT 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. E. Any settlement or compromise of any claim must be made with prior approval of Employer, which approval shall not be unreasonably withheld or delayed in order for indemnification, as provided in this Section, to be available. F. 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. G. 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. B. 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 16: Bonding Employer shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. Section 17: 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: Gabriel Gonzalez, 760 Sandhill Crane Drive, Los Banos, 93635 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 18: General Provisions A. Integration. This Agreement sets forth and establishes the entire understanding and agreement between the Employer and the Employee relating 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 1RSH1756533.2 6 032408 - 04706124 FINAL AGREEMENT 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 was 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. 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. The required provisions of California Government Code 53243- 53243.4, which are hereby agreed to and expressly made a part of this Agreement. Executed at Gilroy, California, on the date and year first above written. EMPLOYEE: EMPLOY GABRIEL GONZALEZ PERFjtY V)/OODWARD, MA By: Approved as to Form: City Attorney 1RSH1756533.2 % 032408 -04706124