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HomeMy WebLinkAboutLewis Amendment 12-15-2011 EMPLOYMENT AGREEMENT AMENDED THIS AGREEMENT, (hereinafter referred to as the "Agreement") was made and entered into the 23rd day of December, 2004, by and between the City of Atascadero, County of San Luis Obispo, State of California, a municipal corporation (hereinafter referred to as the "City") and James Lewis (hereinafter referred to as "Lewis") . Consistent with the provisions of AB 1344, this Agreement is hereby amended to include the addition of Item F under Section 3, effective this 151 day of December, 2011. SECTION 1 EMPLOYMENT A. The City agrees to and shall employ Lewis as the Assistant City Manager of the City of Atascadero. Lewis agrees to perform the functions and duties of the position of Assistant City Manager of the City of Atascadero as described by state law, the Municipal Code of the City of Atascadero, the job description of the position of Assistant City Manager as developed by the City Manager of the City, and all other duties and functions as the City Manager of the City shall from time to time assign. B. Lewis agrees to perform all such functions and duties to the best of his abilities and in a competent and efficient manner. Lewis agrees to focus his full professional time, ability and attention to City business during the term of this Agreement and agrees not to engage in any other business pursuits whatsoever or, directly or indirectly, render any services of a business, commercial or professional nature to any other person or organization, whether for compensation or otherwise, without the prior written consent of the City Manager. SECTION 2 TERM A. Lewis shall serve at the will and pleasure of the City Manager. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City Manager to terminate the employment of Lewis at any time and for any reason, or for no reason, subject only to the provisions specified in Section 3 of this Agreement. B. This Agreement shall become effective on October 11, 2004, and unless otherwise terminated under the provisions of Section 3, shall remain in effect indefinitely. C. Nothing in this Section shall or is intended to prevent, limit or otherwise interfere with the right of the City or Lewis to terminate the employment of Lewis prior to the expiration of this Agreement, or any extension thereof, in accordance with Section 3 of this Agreement. SECTION 3 TERMINATION A. The City Manager and Lewis may agree mutually in writing to terminate Lewis' employment. B. The City may terminate Lewis' employment at any time without cause. In the event that Lewis is terminated by the City, and Lewis is otherwise ready, willing and able to perform his duties under this Agreement, the City shall pay Lewis severance compensation equal to six (6) months of salary and benefits. In consideration of this severance payment, Lewis agrees that he shall not be entitled to any other payment or compensation of any kind from the City in connection with the termination of his employment. C. Lewis may terminate his employment at any time for any reason by providing 90 days prior written notice to the City Manager. In the event that Lewis provides such written notice, he shall be entitled to receive at the termination of this employment only such accrued unused and other such benefits as may be due and payable under applicable City rule, regulation or policy, and/or under applicable local, state or federal law. Lewis shall not, however, be entitled to any severance pay or other compensation at the termination of his employment. During the period subsequent to Lewis' submiss-on of his notice terminating his employment, he shall continue to perform his duties as Assistant City Manager pursuant to this Agreement unless removed from those duties and/or terminated by the City Manager pursuant to the terms of this Agreement. However, in the event that Lewis is then removed from those duties and/or terminated by the City Manger, Lewis shall continue to receive compensation in the form of salary and benefits through the completion of the 90 (ninety) day notice period. D. The City Manager may terminate Lewis' employment for cause. In the event that Lewis is terminated for cause, he shall not be entit-ed to the payment of any severance pay or compensation, other than the payment of accrued unused vacation leave. In the event that Lewis is terminated for cause, Lewis shall be entitled to prior written notification of the reason(s) for the termination, the facts upon which such reason(s) are based, copies of all supportinq evidence and investigations regarding the facts and reason (s) for the termination, and the right to respond, orally or in writing or both, to the City Manager within five (5) working days of receipt of the notice of such termination. Furthermore, if requested by Lewis, Lewis shall have the right to a hearing before the City of Atascadero City Council, which shall be a hearing de novo. In the event the decision to terminate for cause is reversed by the City Council. and the City Manager terminates Lewis' employment without cause, the terms of Subsection B hereof shall apply. E. The City Manager and/or Lewis may terminate this Agreement in the event that Lewis has been unable to perform the essential functions of his position due disability for a period of three (3) months and it is medically determined that Lewis is permanently disabled from performing the essential functions of his position. 1. A determination that Lewis is permanently disabled shall be made by the City Manger based upon competent medical evidence and evaluation and in accord with the applicable state and federal laws pertaining to the protection of disabled persons. In the event that the City becomes a member of the California Public Employees Retirement System (Cal PERS) , any determination that Lewis is permanently disabled shall be made in accord with the laws governing the city' s membership in Cal PERS. 2. In the event it is determined by the City Manger that a question exists as to Lewis' ability to perform the essential functions of his position, based upon objective facts, the City Manager may require Lewis to undergo a fitness for duty examination. Nothing in this subsection shall obligate Lewis to waive his right to privacy under California Civil Code § 56. 10 (c) (8) , nor shall the City seek any report pursuant to this subsection beyond that to which it would be entitled under California Civil Code § 56. 10 (c) (8) . F. In the event Lewis is convicted of a crime involving an abuse of his office or position as defined in California Government Code section 53243. 4, Lewis shall be required to fully reimburse the City in accordance with California Government Code sections 53243, 53243. 1, and/or 53243. 2 . SECTION 4 SALARY AND COMPENSATION A. Effective upon the commencement of this Agreement, the City shall pay to Lewis a base salary within Range 53 of the Salary Schedule, which may be adjusted as needed pursuant to Section E. This salary shall be paid on a pro rata basis in regular installments pursuant to the City' s normal payroll procedures. B. The City Manager may set forth annually in writing certain goals consisting of duties and responsibilities above and beyond Lewis' ordinary duties and responsibilities. In the event that Lewis achieves such goals, he may be entitled to receive other compensation in addition to his regular salary and benefits. The City Manager shall set forth the amount of additional compensation to which Lewis would be entitled in the same writing setting forth the annual goals. Any such additional compensation will be at the discretion of the City Manager with the approval of the City council if necessary. C. The City shall deduct or withhold from Lewis' salary any and all sums as Lewis may from time to time direct, or as required by law, including, but not limited to, sums for the payment of federal, state and/or local income taxes and retirement or pension plans. D. In addition to the compensation set forth in Sub-Section A above, Lewis shall be entitled to receive the same benefits granted to executive management employees. As used herein, benefits include, but are not limited to, vacation, sick leave, holiday pay, retirement (PERS) benefits and payments, health insurance, dental insurance, vision insurance, and life insurance. Lewis shall be entitled to the following benefits: a. Eighty (80) hours of Administrative Leave shall be granted per fiscal year, to be used within that fiscal year. b. City will pay a total of five thousand dollars ($5, 000.00) for relocation expenses, travel expenses, lodging, meals, etc. , associated with the move to Atascadero. C. City will pay for employee' s membership in the International City Management Association. d. City will pay a contribution equal to five percent (5" ) of base salary to a deferred compensation program in favor of Employee. All deferred compensation contributions are fully vested in the employee and shall not be available to the City. e. Employee shall begin with a sick leave balance of 160 hours and a vacation leave balance of 80 hours . E. In its sole discretion, the City may increase Lewis' base salary and/or other benefits beyond those set forth in this Agreement in such amounts and/or to such an extent as may be recommended by the City Manager on the basis of a salary review made at least annually by the City Manager. Any such increases shall be subject to the approval of the City of Atascadero City Council as required. F. Lewisshall receive two hundred and fifty dollars ($250.00) each month as an automobile allowance. The allowance is in exchange for (1) Employee making available for his own use a personal automobile, and (2) for his use of his personal automobile for City related business and/or functions during, before and after normal work hours. Employee is not precluded from using City vehicles for City business during before, and after the normal workday. A City vehicle will not be provided to Employee for his e,_clusive use and no City vehicle shall be utilized by Employee for commuting purposes. G. The City Manager shall fix any other terms and conditions of employment relating to Lewis' performance as the City Manager may from time to time determine, provided that such other terms and conditions of employment are not contrary to or inconsistent with the terms set forth in this Agreement, the City' s rules, regulations and ordinances, local, state and/or federal law. H. Any provisions of the City code, rules, regulations and ordinances relating to management employee benefits as they now exist or may later be amended shall also apply to Lewis, in addition to any benefits set forth in this Agreement, except as those provisions of the City code, rules, regulations and ordinances relating to management employee benefits may conflict or be inconsistent with the terms of this agreement, in which case the terms of this Agreement shall control. SECTION 5 PERFORMANCE EVALUATION A. Annually, the City Manager, with the assistance of Lewis, may define such goals and performance objectives which the City Manager determines necessary and shall further establish a relative priority among those various goals and objectives. These goals and objectives shall be reduced in writing and should be reasonably attainable within the time limitations specified by the City Manager and in light of the appropriations provided through the annual operating and capital budgets. B. The City Manager shall review and evaluate Lewis' performance annually. This review and evaluation shall take into account any goals that may have been developed by the City Manager, as well as Lewis' performance of other functions and duties. The City Manager shall provide to Lewis a summary written statement of the evaluation and shall provide Lewis with the opportunity to discuss the evaluation with the City Manager. SECTION 6 GENERAL PROVISIONS A. This Agreement constitutes the sole understanding and agreement of the City and Lewis with respect to the matters set forth herein and supersedes any and all prior negotiations, statements, instructions, representations or agreements, whether written or oral. B. The parties agree and acknowledge that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or by anyone acting on behalf of any party, which are not contained herein and that any agreement, statement or promise not contained in this Agreement shall not be valid or binding on either party. C. Any amendment to this Agreement shall be valid only if in writing approved and signed by both parties, unless otherwise specified in this Agreement. D. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. E. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorney' s fees and costs in addition to any other relief to which that party may be entitled. F. This Agreement shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the date and year first written above. CITY: Lewis: Lkb& &. op -- 4 Wade G. McKinney James w' s City Manager Assi tant City Manager