City of Culver City, California
Agenda Item Report
Meeting Date: 03/28/11 Item Number: C-3
CITY COUNCIL AGENDA ITEM: Approval of an Executive Employment Agreement
for Carol Schwab Continuing her Appointment as City Attorney.
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: Meetings and Agendas – City Council (03/23/11)
Department Approval:
Serena Wright (03/21/11)
City Attorney Approval:
Heather Baker (03/22/11)
Chief Financial Officer Approval:
Jeff Muir (by M. Noller) (03/23/11)
City Manager Approval:
John M. Nachbar (03/23/11)
RECOMMENDATION:
Staff recommends the City Council approve an executive employment agreement for
Carol Schwab continuing her appointment as City Attorney effective March 31, 2011.
BACKGROUND/DISCUSSION:
As authorized by the City Council after the closed session held on Monday, March
14, 2011, a proposed executive employment agreement (“Agreement”) has been
negotiated with Carol Schwab to continue her service as City Attorney.The proposed
agreement does not change the current compensation and provides for the same
basic terms and conditions as set forth in the current City Manager Employment
Agreement. A copy of the proposed Agreement has been included in the agenda
packet.
FISCAL ANALYSIS:
Fiscal impact is within the parameters established by City Council. There are
adequate appropriations in the City Council Adopted Budget for Fiscal Year
2010/2011 to cover the costs of this contract.
City of Culver City, California
Agenda Item Report
ATTACHMENTS:
Executive Employment Agreement
MOTION:
That the City Council:
1. Approve an Executive Employment Agreement forCarol Schwab continuing her
appointment as City Attorney effective March 31, 2011; and,
2. Authorize the Assistant City Attorney to review/prepare the necessary
documents; and,
3. Authorize the Mayor to execute such documents on behalf of the City.
Contract No. 2011-046
CAROL A. SCHWAB, CITY ATTORNEY
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement is entered into on this 28 th day of March 2011,
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 by offering certain compensation, benefits and other
incentives.
3. To ensure that Employee shall do her utmost to promote
the City's interests, and devote such time and effort as necessary to
properly perform her 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.
5. To establish a framework for a working relationship
built on mutual respect among the City Council, City Manager, Staff
1 Contract No. 2011-046
and the Community.
B. Employee desires to accept such employment with City on the terms
and conditions set forth in this Agreement.
C. 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 is appointed by and serves at the pleasure of the City
Council in an at-will capacity. Employee shall exercise the powers and perform the duties
of the position of City Attorney as set forth in the City Charter, Culver City Municipal
Code, resolutions, policies, and other 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. This Agreement shall continue in full force and effect unless and until
modified by City and Employee in writing or unless and until such time as
Employee's employment relationship is terminated in accordance with
Section 3.
2 Contract No. 2011-046
B. Unless approved in advance or otherwise directed by the City Council,
Employee shall not engage in any activity, consulting service or enterprise,
for compensation or otherwise, which in the determination of the City
Council, actually or potentially in conflict with or inimical to, or which
interferes with, his duties and responsibilities to Employer.
3. TERMINATION OF AGREEMENT:
A. By City Council action, City may terminate this Agreement, at
any time, with or without cause, upon thirty (30) days written notice to
Employee. If City terminates this Agreement for any reason other than
reasons set forth in Section 4 of this Agreement, City shall provide severance
pay to Employee on the effective date of such termination in an amount
equal to the Employee's base salary and benefits for a six-month period at
Employee's rate of pay on the effective date of such termination. Such
severance benefit shall inure to the benefit of Employee's heirs, or
assignees, unless otherwise prohibited by law. Under no circumstance shall
the City terminate this Agreement within ninety (90) days immediately
following a regular municipal election.
B. Employee may terminate this Agreement at any time upon thirty
(30) days written notice to the City. Upon Employee's termination of this
Agreement, Employee shall not be entitled to any severance pay, with the
exception of all unused accruals as outlined in the Culver City Management
Group Memorandum of Understanding ("CCMG MOU"). Contract No. 2011-046
C. In the event Employee is unable to perform her duties, with or
without reasonable accommodation, 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.
4. 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) Consistently and repeatedly refuses and/or willfully fails
to perform the duties of his position;
(ii) Consistently and repeatedly refuses and/or willfully fails
to carry out the orders, directions or decisions of the City
Council; or
(iii) Commits any material act of dishonesty, malfeasance,
moral turpitude, fraud, or theft.
B. City reserves the right to take appropriate disciplinary action for
Cause.
C. Employee shall be provided written notice of City's intent to take
disciplinary action for Cause at least ten (10) calendar days prior to the City
Council meeting at which a final decision will be made. Employee shall be
provided an opportunity to respond to the notice of intended action. Any
decision or action of the City Council following such response shall be final. Contract No. 2011-046
D. Due to the salaried and exempt nature of Employee's position
under the Fair Labor Standards Act (FLSA), if Employee is relieved of duty
during the pendency of the above process, Employee shall continue to
receive full pay and benefits until final action of the City Council has been
taken.
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,
including vacation and sick leave accrual, provided to other Management employees as
described in the adopted CCMG MOU for the 2005-2010 period, and as may be amended
in the future.
A. Salary and Other Compensation
Salary. Employee shall continue in the City's Classification and
Salary Plan. Employee's base annual salary shall be $218,418.
Employee's base annual salary, except as it may be adjusted
for "cost-of-living" provided in subsection (B) below, shall constitute the
"Salary" for this position for the term of the Agreement. Payment of
Employee's Salary shall be made in biweekly installments in the same
manner as other employees of the City.
B. CPI. Effective March 2012, and each twelve (12) month
anniversary thereafter, Employee shall be entitled to receive an increase in
the base salary identified in subsection (A) above, by an amount equal to the
5 Contract No. 2011-046
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 (12) months or any
negotiated salary adjustment contained in the CCMG MOU, whichever is
greater. However, employee agrees to suspend any salary increase
described in this subsection until such time as a salary increase is provided
to employees covered by the CCMG MOU.
C. Administrative Leave. Employee shall be entitled to ten (10)
days of Administrative Leave during each year of this Agreement. Any
unused Administrative Leave at the end of each year of this Agreement shall
be forfeited.
D. Auto Allowance. Employee shall receive three hundred
seventy-five dollars ($375) per month automobile allowance as full
reimbursement of use of her personal vehicle for City related business and
commuting purposes.
E. Deferred Compensation. Employee shall receive deferred
compensation in the amount agreed upon in the CCMG MOU. 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. In accordance with City policy, Employee
shall be provided with a cellular phone or a monthly stipend, in accordance
with City policy in order to be accessible by City officials. Contract No. 2011-046
G. Professional Development/State Bar Dues. City shall pay
Employee's California State Bar membership dues to the extent payment of
those dues is necessary for Employee to practice law in the State of
California. City shall also pay dues for membership in the City Attorney's
Association of Los Angeles County, Culver Marina Bar Dues and costs for
attendance at professional conferences, twice per year, including but not
limited to the League of California Cities Annual Conference and City
Attorneys Conference.
H. Employee Retirement Contribution. Employee shall pay the full
8% CalPERS employee contribution rate.
6. PERFORMANCE EVALUATION:
The City Council shall review and evaluate the performance of
Employee at least once per year thereafter for the remainder of the term of
this Agreement. At a minimum, the annual review shall take place on or
about the anniversary date of this Agreement. Said reviews and evaluations
shall be in accordance with specific written criteria developed by the City
Council in consultation with the Employee, 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. The City Council
and/or Employee may desire additional performance evaluations between
anniversary dates. Such evaluations shall be less formal and may be
conducted without written comments or reports. Contract No. 2011-046
7. OTHER TERMS AND CONDITIONS OF EMPLOYMENT:
A. Other Conditions, The City Council may, from time-to-time in
writing, fix other terms and conditions of employment relating to Employee,
provided such terms and conditions are not inconsistent with or in conflict
with the provisions of this Agreement, the City Charter, Culver City Municipal
Code, or other applicable law.
B. Communications with the City Council. It will be the obligation
of the Employee to be accessible to the Mayor and all Members of the City
Council on as equal a basis as reasonably possible and to communicate
information to the Mayor and all Members of the City Council in a similar and
equal manner at approximately the same time.
C. Notification of Leave from Office. Employee shall provide the
City Council with reasonable notice prior to taking two (2) or more
consecutive vacation or administrative days off.
D. Indemnification. City shall 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 Manager, in accordance with the provisions of applicable law, including
Government Code Section 825, and shall further provide Employee a
defense in accordance with the provisions of applicable law, including
California Government Code Section 995, et seq., 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 Contract No. 2011-046
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
subsection shall be deemed to reduce the City's obligation to defend or
indemnify Employee under applicable Federal, State or local law.
8. GENERAL PROVISIONS:
A. Entire Agreement. This Agreement represents the entire
Agreement between the City and Employee regarding the matters described
hereunder, and all preliminary negotiations and agreements are deemed a
part of this Agreement. No verbal agreement or implied covenant shall be
held to vary the provisions of this Agreement. This Agreement shall bind
and inure to the benefit of the Parties to this Agreement, and any subsequent
successors, heirs and assigns.
B. Modification. This Agreement may not be modified, nor may
any of the terms, provisions or conditions be modified or waived or otherwise
affected, except by a written amendment signed by all parties hereto.
C. 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 his
home address as shown in City's personnel files. Contract No. 2011-046
D. 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.
E. Resolution of Disputes. Should a dispute arise between the
Parties specifically 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 Parties agree that any disputes resolved by arbitration shall
be final and binding. Any other disputes arising out of this Agreement, not
specifically referenced herein, shall not be subject to the provisions of this
Section.
F. Governing Law. The terms of this Agreement shall be
interpreted according to the laws of the State of California. If litigation arises
out of this Agreement, then venue shall be in the Superior Court of Los
Angeles County.
G. Effective Date. The effective date of this Agreement is the date
it is signed on behalf of the City.
EMPLOYEE
By:
Name: Carol A. Schwab
Title: City Attorney
(Signatures Continued on Page 11)
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Dated: Contract No. 2011-046
(Signatures Continued from Page 10)
CITY OF CULVER CITY
Dated: By:
Christopher Armenta,
Mayor, City of Culver City
ATTEST: APPROVcD,AS TO FORM:
Martin R. Cole, City Clerk HeatIffer Baker, AssisMt City Attorney
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