City of Culver City, California
Agenda Item Report
Meeting Date: 12/13/10 Item Number: C-3
CITY COUNCIL AGENDA ITEM: Approval of an Amendment to the Existing
Executive Employment Agreement for City Attorney Carol Schwab, Effective
December 31, 2010, Extending the Term of the Agreement for 90 Days.
Contact Person/Dept.:
Serena Wright
Phone Number:
(310) 253-5640
Fiscal Impact: Yes [x] No [] General Fund: Yes [x] No []
Public Hearing: [] Action Item: [] Attachments: [x]
Commission Action Required: Yes [] No [x] Date: _______________
Public Notification: (E-Mail) Agenda and Meetings – City Council (12/09/10)
Department Approval:
Serena Wright (12/08/10)
City Attorney Approval:
Heather Baker (12/09/10)
Chief Financial Officer Approval:
Jeff Muir (by M. Noller) (12/08/10)
City Manager Approval:
John M. Nachbar (12/09/10)
RECOMMENDATION:
Staff recommends the City Council approve an amendment to the existing executive
employment agreement for City Attorney Carol Schwab, effective December 31,
2010, extending the term of the Agreement for 90 days.
BACKGROUND/DISCUSSION:
On December 1, 2005, the City Council approved an executive employment
agreement (Agreement) with Carol Schwab continuing her service as City Attorney
with a contract term through June 30, 2009. On March 17, 2008, the City Council
amended the Agreement to extend the term an additional 18 months to December
31, 2010.
The proposed amendment, for tonight’s consideration, modifies Section 2.A of the
Agreement by extending the term of the Agreement for 90 days. This extension will
give the City Council and City Attorney time to discuss and negotiate specific terms
of an ongoing Agreement. During this extended time period, all current provisions of
the existing Amended Agreement shall remain in full force and effect. All other terms
and conditions, including salary and benefits, remain unchanged.
City of Culver City, California
Agenda Item Report
FISCAL ANALYSIS:
There is no fiscal impact associated with the approval of this amendment.
ATTACHMENTS:
1. 2005 Executive Employment Agreement
2. 2008 Amendment to Executive Employment Agreement
3. 2010 Proposed Amendment
MOTION:
That the City Council:
1. Approve an amendment to the existing Executive Employment Agreement for
City Attorney Carol Schwab effective December 31, 2010, extending the Term of
the Agreement for 90 days; and
2. Authorize the Human Resources Director and Assistant City Attorney to
review/prepare the necessary documents; and,
3. Authorize the Mayor to execute such documents on behalf of the City.
MEETING DATE: 12/13/10
AGENDA ITEM: Approval of Amendment to the Existing Executive
Employment Agreement for City Attorney Carol Schwab
Effective December 31, 2010.
ATTACHMENTS
Pages
1. 2005 Executive Employment Agreement 1-11
2. 2008 Amendment to Executive Employment Agreement 12-13
3. 2010 Proposed Amendment 14-15/4-7-1 0-AcApt EsQ—C
.. ••. -CAROL .A . SCHWAB, CITY ATTORNEY
(2005-217)
This Employment Agreement is entered into on this 'I St day of December
2005, by and between the City of Culver City, California, a municipal corporation,
hereinafter referred to as "City', and Carol A. Schwab, hereinafter known as "Employee".
The City and the Employee are collectively referred to as The Parties" and agree as
follows:
RECITALS
A. The City Council of the City desires to enter into this Agreement:
1. To continue the services of Employee as
City Attorney, and provide inducement for her to remain in such
employment
2. To encourage the highest standards of public service on
the part of Employee and provide assurances to Employee regarding
her Employment.
3. To ensure that Employee shall do her utmost to promote
the City's interests, and shall devote such time and effort as
necessary to properly perform her full time duties.
4. To establish an equitable process for terminating
Employee's services at such time as she may be unable to fully
discharge her duties, or when City may desire to otherwise terminate
her employment in accordance with this Agreement.
B. Employee desires to accept such continued employment with City on
the terms and conditions set forth in this Agreement.
1C. The City further desires to continue to provide certain benefits and
compensation and other conditions of employment to Employee.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions contained herein, the Parties agree as follows:
1. EMPLOYMENT AND DUTIES:
The City hereby agrees to continue to employ Employee as City Attorney of
the City of Culver City. Employee shall exercise the powers and perform the duties of
the position of City Attorney, as set forth in the Charter, Municipal Code, resolutions,
policies, and rules and regulations of City, and shall exercise such other powers and
perform such other lawful duties as the City Council may from time-to-time assign to
Employee.
2. TERM OF AGREEMENT:
A. The term of this Agreement shall commence on December 1, 2005
and end on July 1, 2009.
B. Employee agrees to remain in the exclusive employ of City and not to
become otherwise employed while this Agreement is in effect. Occasional
teaching, advising or writing performed outside of normal business hours or
on Employee's personal time shall not be contrary to the exclusivity
requirement of this paragraph.
C. Six months prior to the natural termination of this Agreement, the City
Council shall meet with Employee to discuss whether to renew or renegotiate
the terms of this Agreement. Should the Parties be unable to reach
agreement on terms to extend this Agreement, Employee shall be given the
opportunity to resign or retire in a timely fashion, and Ctty shall commence
2recruitment to replace Employee, as this-Agreement shall be perrnitted:to ,
lapse.
3. TERMINATION OF AGREEMENT:
A. This agreement may be terminated by the City upon written notice by four
(4) or more members of the City Council that Employee's services are no
longer desired, with the understanding that such notice will be provided at
least one hundred eighty (180) days in advance of the effective date. Should
the City Council exercise this provision, and Employee is otherwise willing
and able to perform the duties of her position, Employee may continue to
work for the balance of the period, or shall receive a lump-sum cash payment
equal to one hundred eighty (180) days total compensation. Employee shall
also receive payment for any accrued vacation, sick leave and floating
holidays remaining in Employee's account as of the date of separation.
B. In the event Employee is unable to perform her duties due to
incapacity or illness, as verified appropriately by the City's physician,
Employee shall be permitted to use her leave as permitted by law, and the
Council may also grant any other form of leave it deems appropriate, until
such time as the necessary notice period given by the Employee has
expired.
C. Employee may terminate this Agreement by written notice to City at
least one hundred eighty (180) days in advance of her resignation or
retirement from City employment. The Parties may mutually agree to modify
the notice time requirements of this Subsection,
34. DISCIPLINE AND/OR TERMINATION FOR CAUSE:
A. This Agreement may be terminated by the City Council for "Cause.'
For purposes of this Agreement, "Cause" shall be defined as
circumstances where Employee:
(i) Refuses or willfully fails to perform the duties of her
position;
(ii) Refuses or willfully fails to carry out the orders,
directions or decisions of City Council;
(iii) Commits any material act of dishonesty, malfeasance,
moral turpitude, fraud, or theft; or,
(iv) Violates any City policy or other regulation.
B. City reserves the right to take appropriate disciplinary action for
Cause, as specified herein. City may suspend or take other disciplinary
action against Employee at any time during the term of this Agreement.
C. Due to the salaried and exempt nature of Employee's position under
the Fair Labor Standards Act (FLSA), if Employee is relieved of duty,
Employee shall continue to receive full pay and benefits pending resolution of
the disciplinary issue.
D. Employee shall be provided written notice of City's intent to take
disciplinary action for Cause at least thirty (30) calendar days prior to the City
Council meeting at which a final decision will be made. Employee will be
provided an opportunity to respond to the notice of intended action, and shall
have until five (5) days prior to the Council meeting to provide a written
response to the charges. The hearing before the City Council will be a
4closed-session;aspemiittedunder the Government -Code--under-the
personnel exception, unless Employee requests, in writing at least ten (10)
days prior to the meeting, that the hearing be conducted in public session.
Any decision or action of the City Council following such hearing shall be
final.
5. SALARY AND COMPENSATION:
Employee shall be compensated as set forth below, and paid
pursuant to the payroll procedures and provisions affecting Management employees of the
City. Except as specifically provided herein, Employee shall receive all the benefits
provided to other Management employees as described in the adopted Memorandum of
Understanding (MOU) for the 2001-2005 (new date) period, and as may be amended in
the future.
A. Salary and Executive Compensation Plan. Employee shall continue
to be placed in the Executive Compensation Plan. Employee's base salary
shall be at Range 660, Step "E.' That base salary, except as it may be
adjusted for "cost-of-living" provided in (B) below, shall constitute the "Salary"
for this position for the term of the Agreement.
B. CPI. Effective December 1, 2005 and each twelve (12) month
anniversary thereafter, City agrees to increase the base salary identified in
(A) above, by an amount equal to the percentage increase in the Consumer
Price Index (CPI) for Urban Wage Earners and Clerical Workers (1982-
84=100) for the Los Angeles Metropolitan area for the immediately preceding
twelve months or any negotiated salary adjustment contained in the
5Management Group MOU, whichever is greater. Payment shall be made in
biweekly installment in the same manner as other employees of the City.
C. Administrative Leave. Employee shall be entitled to ten (10)
Administrative Leave days during each year of this Agreement. Employee
shall not be entitled to pay in lieu of use of such Administrative Leave.
D. Auto Allowance. Employee shall receive the three hundred seventy-
five dollars ($375) per month automobile allowance provided for Department
Heads.
E. Deferred Compensation. Employee shall receive deferred
compensation in the amount agreed upon in the IVIanagement MOU.
Employee may request that City increase the amount of this contribution in
an amount equal to and in lieu of any performance bonus amount provided
herein. City contribution to deferred compensation shall not exceed the
maximum annual amount allowed under Internal Revenue Code Section 457,
as amended. Employee shall be responsible for any taxes due in regard to
this deferred compensation.
F. Cellular Telephone. City shall purchase, install, maintain and pay
monthly charges related to business use of a cellular phone or combined
personal communication device and related accessories; and for installation
of same in Employee's personal car, if necessary. Any excessive charges
for the use of such device not related to City business shall be reimbursed by
Employee when identified and requested by City.
G. Professional Development Expenses/State Bar Dues. City shall pay
Employee's California State Bar membership dues to the extent payment of
6• those dues is necessary for Employee to practice law in the State of
California. City shall also pay dues for membership in the City Attorneys
Association of Los Angeles County, Culver-Marina Bar Dues and costs for
attendance at professional conferences, two times per year, including, but
not limited to the League of California Cities Annual and City Attorneys
Conferences.
H. Continuation of Medical Insurance
The City agrees that prior to any decision by the City modifying the terms of
Section III (2) (Retiree Medical Insurance) of the 2001-2005 Culver City
Management Group Employees Memorandum of Understanding as it existed
on the effective date of this Agreement, at Employee's request, the City
Council shall give Employee the opportunity to meet and confer with it in
good faith regarding continuation of such medical benefit upon retirement,
including but not limited to, determination of eligibility criteria.
6. PERFORMANCE EVALUATION:
A. Evaluation. The City Council shall review and evaluate the
performance of Employee at least once per year. At a minimum, such review
shall take place on or about the anniversary date of this Agreement. Said
review and evaluation shall be in accordance with specific criteria developed
jointly by Employee and City Council, and may be amended from time-to-
time. The Mayor shall provide Employee with a written summary of the
findings of the City Council, and provide an adequate opportunity for
Employee to discuss her evaluation with the City Council.
riPavfor Performance. As a result of the perforrnance evaluation
process, the City Council shall consider whether Employee's performance
and accomplishments warrant adjustment to Employee's Executive
Compensation plan. City Council, by majority vote, may determine the
amount of increase or decrease to Executive Compensation in one percent
(1%) steps, to a maximum of ten percent (10%). At no time shall Employee's
Base Salary be reduced. Increase in Executive Compensation may be taken
as direct pay or as deferred compensation as provided in Section 5(e),
above. Decreases in Executive Compensation shall reduce the amount in
the method previously provided.
7. OTHER TERMS AND CONDITIONS OF EMPLOYMENT:
A. Other Conditions. The City Council may, from time-to-time, fix other
terms and conditions of employment relating to Employee, following
consultation with Employee, provided such terms and conditions are not
inconsistent with or in conflict with the provisions of this Agreement, the
Charter, Municipal Code or applicable law.
B. Indemnification. Pursuant to Government Code Section 825(b), City
may exercise its discretion to defend, hold harmless and indemnify Employee
against any tort, professional liability claim or demand or other legal action,
whether groundless or otherwise, arising out of an alleged act or omission
occurring in the course and scope of Employee's duties as City Attorney, in
accordance with the provisions of the California Government Code, including
Government Code Section 825, and shall further provide Employee a
defense in accordance with the provisions of the California Government
c6,
8Code, including California Government Code Section 995, et seg., subject to
- - -
the limitations and qualifications contained in these or other applicable
statutes. City may compromise and settle any such claim or suit and pay the
amount of any settlement or judgment resulting therefrom. The obligation to
defend and indemnify Employee shall survive the termination or expiration of
this Agreement as to liability incurred during the term hereof. Nothing in this
subparagraph shall be deemed to reduce the City's obligation to defend or
indemnify Employee under applicable Federal, State or local law.
C. Bonding. The City shall bear the full costs of any fidelity or other bond
required of Employee under any law, ordinance, regulation, contract, or
covenant.
D. Non-Competition. Employee agrees not to represent any third parts
interests against the City before any staff, Board, Commission or Elected
Officials of the City of Culver City, subject to Employee's resignation,
retirement or dismissal from employment with the City, for a period of three
(3) years.
8. GENERAL PROVISIONS:
A. Entire Agreement. This Agreement contains the entire
agreement between the parties, and supersedes all prior oral agreements,
understandings, commitments and practices between the parties. Each party
to this Agreement acknowledges that no representations, inducements,
promises or agreements, oral or written, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and noother agreement, statement or promise not contained in this Agreement,
shall be valid or binding on either party.
B. Modification. This Agreement may be rescinded or modified only by
written agreement of both Parties.
C. Binding. This Agreement shall be binding upon and inure to the
benefit of Employee's heirs, or assignees.
a Notice. Any notice given to City under this Agreement shall be given
in writing to City, either by personal service or by registered and certified
mail, postage prepaid, addressed to the City of Culver City, City Clerk at
City's principal place of business. Any notice to Employee shall be given in a
like manner, and if mailed shall be mailed to the Employee at her home
address as shown in City's files.
E. Severability. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nonetheless remain in
full force and effect. If any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nonetheless remain in full force
and effect in all other circumstances.
F. Resolution of Disputes. Should a dispute arise between the Parties
concerning the amount of salary or period for which salary is to be paid, the
Parties agree that the dispute shall be submitted to binding arbitration. Such
arbitration shall be conducted by a mutually agreed arbitrator and pursuant to
the rules of the American Arbitration Association. Each Party shall bear one-
half the costs of the arbitration. The arbitrator may award costs and
attorney's fees to the prevailing party as determined by the arbitrator. The
\D
10Dated: I a.c1/11.5-
By: e(Le 'A./1
Name: CAROL A. SCHWAB
Title: City Attorney
Parties agree th-at any disputes resolved by arbitration shall be final .arid.
binding.
G. Governing Law. The governing law shall be that of the State of
California.
H. Effective Date. The eflective date of this Agreement is
December 1, 2005.
EMPLOYEE
CITY OF CULVER CITY
Dated: By: • ALBERT VERA,
Mayor, City of Culver City
ATTEST:
CHRISTOPHER ARMENTA, City ClerkPage 1
rAc
E'J
T
No.2005-217A
CITY OF CULVER CITY
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
WITH: CAROL A. SCHWAB
FOR: EXECUTIVE EMPLOYMENT / CITY ATTORNEY
This First Amendment to Employment Agreement is made and entered into by
and between the CITY OF CULVER CITY, a municipal corporation, hereinafter referred
to as "City," and CAROL A. SCHWAB, hereinafter referred to as "Employee."
WHEREAS, on December 1, 2005, the parties entered into an Executive
Employment Agreement to appoint employee as City Attorney (the "Agreement"); and
WHEREAS, the parties desire to modify and amend a certain provision of the
Agreement; and
WHEREAS, at its meeting of March 17, 2008, the City Council authorized this
Amendment to the Agreement.
NOW THEREFORE, in consideration of the foregoing, City and Employee
mutually agree as follows:
The Term of Agreement shall be amended to extend from July 1, 2009, until
December 31, 2010.
2_ Except as expressly set forth herein, all terms and conditions of the Agreement
shall remain in full force and effect.Contract No.2005-217A
3. This Amendment shaii be effective on March 17, 2008.
EMPLOYEE
_ ") •-• , . . 1
_.,,,
— I., - rw.--
" ' ,
Dated
Li
: . - ,.) —
- 1 CAROL A. SCHWAB
CITY OF CULVER CITY
—
Dated: 14 AP,. 2666
ALAN CORLIN
Mayor, City of Culver City
APP
stant City Attorney
Page 2
\3Anta.
MaidT 3
Contract No.2005-217A2
CITY OF CULVER CITY
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
WITH: CAROL A. SCHWAB
FOR: EXECUTIVE EMPLOYMENT / CITY ATTORNEY
This Second Amendment to Employment Agreement is made and entered into by
and between the CITY OF CULVER CITY, a municipal corporation, hereinafter referred
to as "City," and CAROL A. SCHWAB, hereinafter referred to as "Employee."
WHEREAS, on December 1, 2005, the parties entered into an Executive
Employment Agreement to appoint employee as City Attorney (the "Agreement"); and
WHEREAS, at its meeting of March 17, 2008, the City Council authorized an
Amendment to the Agreement which extended the term of the Agreement; and
WHEREAS, the Agreement and the Amendment to the Agreement are
collectively referred to as the "Amended Agreement;" and
WHEREAS, the parties desire to extend the term of the Amended Agreement to
extend it for 90 days.
NOW THEREFORE, in consideration of the foregoing, City and Employee
mutually agree as follows:
1. Section 2, Term, subsection A, is hereby amended to read as follows:
The Term of the Amended Agreement shall be amended to extend from
December 31, 2010 until March 31, 2011.
2. Except as expressly set forth herein, all terms and conditions of the Amended
Agreement shall remain in full force and effect.
1 4
Page 1Page 2
Contract No.2005-217A2
This Amendment shall be effective on December 31, 2010.
EMPLOYEE
Dated:
CAROL A. SCHWAB
CITY OF CULVER CITY
CHRISTOPHER ARMENTA
Mayor, City of Culver City
Dated:
APPROVED AS TO FORM:
Heather Baker
Assistant City Attorney