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Resolution No. 92171 RESOLUTION NO. 9217 2 _ 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF 4 AN EMPLOYMENT AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND BRUCE V. MALKENHORST, JR. FOR LEGAL 5 SERVICES C.1 7 WHEREAS, commencing in April 2004,,Bruce V. Malkenhorst, Jr. 8 ("Malkenhorst") has served in various positions within the City 9 Attorney Division of the City Administration/City Clerk Department and 10 currently is serving in the position of Assistant City Attorney II; and 11 WHEREAS, the City of Vernon and Malkenhorst desire to enter 12 into an Employment Agreement for legal services setting forth the terms 13 and conditions governing their relationship; and 14 WHEREAS, the City Council of the City of Vernon does not 15 intend to change Malkenhorst's status as an employee for purposes of 16 all benefits generally available to City employees, including, without 17 limitation, participation in the California Public Employees Retirement 18 System, group health and life insurance and such additional benefit 19 programs that may be established by the City for its employees; and 20 WHEREAS, on January 16, 2006, the Personnel Committee Section 21 of the City Council of the City of Vernon recommended that an 22 Employment Agreement be executed with Malkenhorst effective January 17, 23 2007. 24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 25 CITY OF VERNON AS FOLLOWS: 26 SECTION 1: The City Council of the City of Vernon hereby 27 finds and determines that the recitals contained hereinabove are true 28 Hand correct. 1 SECTION 2: The City Council of the City of Vernon hereby 2 approves the Employment Agreement for legal services with Malkenhorst 3 in substantially the same form as the copy which is attached hereto as 4 Exhibit A and incorporated by reference. The City retains Malkenhorst 5 as the Assistant City Attorney II on the terms and conditions 6 contained in the Employment Agreement. 7 SECTION 3: The City Council of the City of Vernon hereby 8 authorizes the Mayor to execute said Agreement for, and on behalf of, 9 the City of Vernon and the Acting City Clerk is hereby authorized to 10 attest thereto. 11 SECTION 4: The City Council of the City of Vernon hereby 12 authorizes the Acting City Administrator, or his designee, to make 13 whatever nonsubstantive, administrative and/or text changes, upon 14 advice of counsel, to the Agreement. 15 SECTION 5: The City Council of the City of Vernon hereby 16 directs the Acting City Clerk, or his designee, to send one fully 17 executed Agreement to: 18 Bruce V. Malkenahorst, Jr. Assistant City Attorney 19 4305 Santa Fe Avenue 20 Vernon, CA 90058 21 SECTION 6: The Acting City Clerk of the City of Vernon 22 shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. 23 24 APPROVED AND ADOPTED this 17th day of January, 2007. 25 ,n ` LEONIS C. MALBURG, Mayor 26 ATTEST:, 27 28 BRUCE-V. AKLKtNHORST, JR. Acting City Clerk 2 _ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9217, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, January 17, 2007, and thereafter was duly signed by the Mayor of the City of Vernon. ? BRUC V. MALKENHORST, JR. Acting City Clerk I (SEAL) - 3 - EXHIBIT 0 EMPLOYMENT AGREEMENT This Employment Agreement is entered into as of January 17, 2007 (the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation, ("City") and BRUCE V. MALKENHORST, JR., an individual ("Malkenhorst), based on the following facts and circumstances: A. The City and Malkenhorst desire to enter into this Employment Agreement (the "Agreement") to provide for Malkenhorst's performance of legal services on behalf of the City and to set forth each of their obligations and to govern their relationship. Now, therefore, the parties agree as follows: l . Employment. Effective as of the Effective Date, and throughout the Term of Malkenhorst's employment, subject to the terms of Sections 8 and 9 below, Malkenhorst shall be employed by City to serve as the City's Assistant City Attorney II. Malkenhorst shall act exclusively as an attorney for the City and shall have those legal duties that are consistent with the duties of an Assistant City Attorney of a municipal corporation in the State of California, and shall perform such duties under the general direction and supervision of the City Council and the City Attorney, or his authorized designee. Malkenhorst represents that he remains an active member in good standing with the State Bar of California. 2. Employment Term. Subject to Section 8, Malkenhorst's employment hereunder shall be for a term of one (1) year commencing on the Effective Date and expiring at the close of business on the day prior to the first anniversary of the Effective Date (the "Term"); provided, however, that every year, on the anniversary of the Effective Date, this Agreement shall automatically, and without the need for any action or notice by either party, renew for an additional term of one year, on the same terms and conditions as this Agreement, unless either party to this Agreement notifies the other in writing to the contrary at least thirty (30) days prior to the applicable anniversary date. 3. Place of Emplonnent. Malkenhorst may perform the services required hereunder from any location that Malkenhorst deems reasonable and appropriate; provided, however, that the City may require that Malkenhorst be physically present in Vernon on occasions that reasonably require his presence. 4. Scope of Work and Salary. 4.1 Hours and Base Salary. Malkenhorst shall provide 100 hours of services a month as Assistant City Attorney H. Malkenhorst's base salary shall be $21,032 per month. 4.2 Additional Hours and Salary. Notwithstanding the above, Malkenhorst agrees to be reasonably available for additional hours of service as requested by the City Attorney, or his authorized designee, as reasonably required to perform his duties as Assistant City Attorney II, and shall be paid at the rate of $365 per hour for each hour (or portion thereof) that he works in a month in excess of 100 hours. 4.3 Increases. Malkenhorst's base salary and hourly rate for additional services shall each be increased at the same time and in the same percentage increase as salary increases are generally granted to other City employees. 4.4 Records and Pay Periods. Malkenhorst shall submit records of his hours, including a description of the amount of time each project was worked on each day, which time records are to be submitted monthly. Malkenhorst shall be paid every two weeks in accordance with the City's regular payroll practices, and his compensation shall be subject to all standard withholding deductions. 5. Expenses. The City shall, on a monthly basis, pay or reimburse Malkenhorst for the reasonable and necessary expenses incurred by Malkenhorst in connection with the performance of his legal duties hereunder if (a) such expenses have been previously approved by the City Attorney or reimbursement is otherwise appropriate in accordance with the City's established policies, and (b) the City receives such verification thereof as the City may reasonably require. Malkenhorst shall be entitled to reimbursement for any other expenses that Malkenhorst incurs in the course of undertaking his services for and on behalf of the City that are approved by the City Attorney or his authorized designee. Malkenhorst may use the services of City employees in connection with the performance of his duties hereunder, including, without limitation, the performance of clerical or typing duties. Upon any termination of this Agreement, Malkenhorst shall be reimbursed for any unpaid expenses incurred through the date of termination that are reimbursable in accordance with this Section 5. 6. Other Benefits. Malkenhorst shall be entitled to all of the benefits available generally to City employees, including, without limitation, participation in Cal PERS (with contributions by the City in the same manner as made for other City employees), and group health and life insurance provided to other City employees, and such additional benefit programs that may be established by the City for its employees. The City shall have the right to amend, reduce or completely terminate any or all such plans by duly authorized action respecting all employees covered by such plans as a group. Upon any termination of this Agreement, Malkenhorst shall be entitled to all benefits through the date of termination, and to rights under benefit plans beyond the date of termination in accordance with the provisions of the plans, including COBRA in accordance with law. 7. Vacations and Holidays. Malkenhorst may take off such holidays and vacation days as are reasonable; provided, however, that he shall be obligated to provide 100 hours of services per month notwithstanding any such vacations or holidays. 8. Termination. This Agreement may be terminated as follows: 8.1 Death. Malkenhorst's employment shall terminate immediately in the event of his death. 8.2 Disabili . The City may terminate Malkenhorst's employment for Disability by giving Malkenhorst three (3) days' advance written notice. For all purposes under this Agreement, "Disability" shall mean that Malkenhorst, at the time such notice is given, has been unable to substantially perform his duties under this Agreement for a period of not less than N three (3) consecutive months (or after four (4) months in the aggregate during a twelve-month period, whether consecutive or not) as the result of his incapacity due to physical or mental illness. A determination of Disability shall be made by the City Council in consultation with a physician reasonably satisfactory to Malkenhorst (or his representative) and the City, and Malkenhorst shall cooperate with the efforts to make such determination. Any such determination shall be conclusive and binding on the parties for the purposes of this Agreement. 8.3 Termination by City for "Cause". The City may terminate Malkenhorst's employment for "Cause". As used in this Agreement, the term "for Cause" shall be limited to a termination for the following acts by Malkenhorst: (i) Malkenhorst's refusal or inability to perform any material duties contemplated by this Agreement for a period of thirty (30) consecutive business days (except in the event that Malkenhorst is determined to have a Disability (as defined in Section 8.2) or in the event of Malkenhorst's death, in which case the date of termination shall be as set forth in Sections 8.2 and 8.1 respectively); (ii) grossly negligent, reckless or willful misconduct in Malkenhorst's performance of his duties and failure to cure such conduct within 30 calendar days following written notice from the City Council describing the misconduct; (iii) Malkenhorst's conviction of any felony involving moral turpitude, which conviction through lapse of time or otherwise is not subject to appeal; or (iv) Malkenhorst's material violation of City policies, which violation is not cured within 30 calendar days following written notice from the City Council describing the violation; provided, however, that the City Council may terminate Malkenhorst immediately, and without notice and opportunity to cure, if the City Council determines that such violation is so egregious that it is reasonably likely to subject the City to a risk of substantial liability. The determination of Cause shall be made by the City Council in its reasonable discretion. 8.4 Termination by Malkenhorst for "Good Reason". Subject to the provisions set forth below, at any time after the date Malkenhorst commences employment under this Agreement, upon thirty (30) days' advance written notice to the City of his intent to terminate the Agreement, Malkenhorst shall have the right to terminate his employment under this Agreement for "Good Reason". For purposes of this Agreement, "Good Reason" is defined as any one of the following: (i) the City fails to comply with the provisions hereof governing compensation and benefits to Malkenhorst; (ii) the City fails to maintain Malkenhorst in the position of Assistant City Attorney II or Assistant City Attorney I; (iii) the City materially breaches any other provision of this Agreement with Malkenhorst; or (iv) conduct by the City occurs that would cause Malkenhorst to commit fraudulent acts or would expose Malkenhorst to criminal liability; provided, however, that it shall not constitute Good Reason unless Malkenhorst shall have provided the City with written notice of its alleged actions constituting Good Reason (which notice shall specify in reasonable detail the particulars of such Good Reason) and the City has not cured any such alleged Good Reason within thirty (30) days of the City's receipt of such written notice. 9. Change in Position. Notwithstanding anything to the contrary set forth in this Agreement, the City Council may, at any time, without the need for action or consent by Malkenhorst, elect to change Malkenhorst's position from Assistant City Attorney II to Assistant City Attorney I, with such change to be effective upon 30 days prior written notice, which notice shall be given following a determination and vote by the City Council to make such change. Upon the effective date of such change, Malkenhorst's base salary shall be adjusted following a Kj determination and vote by the City Council and Malkenhorst shall remain obligated to perform additional services as described in Section 4.2. Effective upon such change, Malkenhorst shall continue to report directly to the City Attorney. All other terms and provisions of this Agreement shall remain in full force and effect, including, without limitation, the benefits and expense reimbursements, which shall not be decreased and which will not require any additional contribution or payment by Malkenhorst. 10. Notices. For purposes of this Agreement, notices and other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by United States certified mail, return receipt requested, postage prepaid, or by reputable overnight courier, addressed as follows: If to Malkenhorst: Bruce V. Malkenhorst, Jr. 4305 Santa Fe Avenue Vernon, California 90058 If to the City: City of Vernon 4305 Santa Fe Avenue Vernon, California 90058 Attn: City Clerk or to such other address or the attention of such other person as the recipient party has previously furnished to the other party in writing in accordance with this Section 10. Such notices or other communications shall be effective upon receipt or refusal to accept delivery. 11. Integration. This Agreement represents the entire agreement and understanding between the parties as to the subject matter hereof and supersedes all prior or contemporaneous agreements, whether written or oral. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by the parties hereto. 12. Waiver. Failure or delay on the part of either party hereto to enforce any right, power, or privilege hereunder shall not be deemed to constitute a waiver thereof. Additionally, a waiver by either party of a breach of any promise hereof by the other party shall not operate as or be construed to constitute a waiver of any subsequent breach by such other parry. 13. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule, such invalidity, illegality or unenforceability will not affect any other provision, but this Agreement will be reformed, construed and enforced to limit the non - enforceable term to the extent required to make it enforceable and, if necessary, such term shall be severed from the Agreement. 4 14. Headings. The headings of the Sections contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of any provision of this Agreement. 15. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal substantive laws, and not the choice of law rules, of the State of California. 16. Counterparts, Facsimile. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute but one and the same document. Facsimile signatures to this Agreement shall be enforceable. 17. Attorneys' Fees. In the event of any conflict, dispute, claim, or other issue arising out of or related to the terms of this Agreement or the relationship between the parties, or any other matter related to a dispute between the parties in connection with the conduct of either of them related to or arising out of Malkenhorst's employment by the City, the prevailing party in such matter shall be entitled to recover from the non -prevailing party all of the prevailing party's costs (including, without limitation, costs of investigation and defense, court costs, and reasonable attorneys' fees and costs), in addition to such other remedies as are ordered. 18. Dispute Resolution. 18.1 Use of JAMS. The City and Malkenhorst agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance, termination or breach of this Agreement or Malkenhorst's employment with the City or termination of such employment, will be settled by final and binding arbitration by a panel of arbitrators to be held in Los Angeles County, California, in accordance with the rules of the Judicial Arbitration & Mediation Services, Inc. ("JAMS"). Without limiting any other provision herein, this Section 18 shall survive the termination of Malkenhorst's employment with the City and will apply to any claim, dispute, or controversy that arises during or after the termination of Malkenhorst's employment with the City. 18.2 Procedure. The arbitration shall take place before a panel of three retired judges of the Superior Court of the State of California (the "Arbitrators") under the auspices of JAMS. Such arbitration shall be initiated by the parties, or either of them, within ten (10) calendar days after either party sends notice of a demand to arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. 18.3 Selection of Arbitrators. Each party shall select a retired judge from the JAMS panel, and the two selected judges shall mutually agree on the third retired judge from the JAMS panel. If one of the parties does not select a retired judge from the JAMS panel within 14 calendar days after receipt of the Arbitration Notice, JAMS will select the second judge, and the judge selected by JAMS and the judge selected by the other party will select the third judge for the panel. The third judge is to be selected within 10 calendar days following the selection of the 5 first two judges. The three judges will together serve as the Arbitrators. In the event of any subsequent vacancies or inabilities to perform among the Arbitrators appointed, the Arbitrators involved shall be replaced in accordance with the provisions of this Section 18.3 as if such replacement was an initial appointment to be made under this Section 18.3 within the time constraints set forth in this Section 18.3, measured from the date of notice of such vacancy or inability to the person or persons required to make such appointment. 18.4 The Decision. Any party may be represented by counsel or other authorized representative. In rendering a decision(s), the Arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of California and the terms of this Agreement. The decision of the Arbitrators shall be based on the evidence introduced at the hearing, and shall be based on, and accompanied by, a written statement of decision explaining the factual and legal basis for the decision as to each of the principal controverted issues. The agreement of two of the three Arbitrators as to the resolution of the dispute shall be a conclusive resolution. The Arbitrators shall deliver the written decision to the parties within 30 calendar days following the date of the selection of the last of the Arbitrators. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the Superior Court of the State of California, subject only to challenge on the grounds set forth in the California Code of Civil Procedure Section 1286.2. The validity and enforceability of the decision of the Arbitrators is to be determined exclusively by the California courts. The Arbitrators shall have the authority to grant Malkenhorst or the City or both all remedies otherwise available by law, including injunctions. 18.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and the arbitration process. 18.6 Waiver. The parties hereby acknowledge that they have voluntarily waived their right to a trial by the court or by a jury, have negotiated the terms of this Agreement, including, without limitation, this Section 18, have consulted with counsel concerning such terms, and voluntarily agree to them. City's Initials Malkenhorst's Initials Z Each of the parties has executed this Employment Agreement, in the case of the City by its duly authorized representative, as of the day and year first above written. ATTEST: CITY OF VERNON a Municipal Corporation By: B� Acting City Clerk Mayor Approved as to Form: By: Jeff Harrison City Attorney 7 Bruce V. Malkenhorst, Jr. LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem WM. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman February 12, 2007 Mr. Bruce V. Malkenhorst, Jr. Assistant City Attorney 4305 Santa Fe Avenue Vernon, California 90058 Re: Employment Agreement Dear Mr. bla-k enho sit - MARK C. WHITWORTH Fire Chief LEWIS J. POZZEBON Director of Environmental Health S. KEVIN WILSON Director of Community Services SHARON L. DUCKWORTH City Treasurer DONAL O'CALLAGHAN Director of Light & Power Transmitted herewith is a fully executed agreement, as referenced above, approved by City Council on January 17, 2007, through Resolution No. 9217. ry truly yours, elly G' n Acting City Clerk NG:dr c: Martha Valenzuela Resolution No. 9217 Agreement File No. 07-009 Xglugludo wubugwal EMPLOYMENT AGREEMENT This Employment Agreement is entered into as of January 17, 2007 (the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation, ("City") and BRUCE V. MALKENHORST, JR., an individual ("Malkenhorst), based on the following facts and circumstances: A. The City and Malkenhorst desire to enter into this Employment Agreement (the "Agreement") to provide for Malkenhorst's performance of legal services on behalf of the City and to set forth each of their obligations and to govern their relationship. Now, therefore, the parties agree as follows: 1. Employment. Effective as of the Effective Date, and throughout the Term of Malkenhorst's employment, subject to the terms of Sections 8 and 9 below, Malkenhorst shall be employed by City to serve as the City's Assistant City Attorney II. Malkenhorst shall act exclusively as an attorney for the City and shall have those legal duties that are consistent with the duties of an Assistant City Attorney of a municipal corporation in the State of California, and shall perform such duties under the general direction and supervision of the City Council and the City Attorney, or his authorized designee. Malkenhorst represents that he remains an active member in good standing with the State Bar of California. 2. Employment Term. Subject to Section 8, Malkenhorst's employment hereunder shall be for a term of one (1) year commencing on the Effective Date and expiring at the close of business on the day prior to the first anniversary of the Effective Date (the "Term"); provided, however, that every year, on the anniversary of the Effective Date, this Agreement shall automatically, and without the need for any action or notice by either party, renew for an additional term of one year, on the same terms and conditions as this Agreement, unless either party to this Agreement notifies the other in writing to the contrary at least thirty (30) days prior to the applicable anniversary date. 3. Place of Employment. Malkenhorst may perform the services required hereunder from any location that Malkenhorst deems reasonable and appropriate; provided, however, that the City may require that Malkenhorst be physically present in Vernon on occasions that reasonably require his presence. 4. Scope of Work and Salary 4.1 Hours and Base Salary. Malkenhorst shall provide 100 hours of services a month as Assistant City Attorney II. Malkenhorst's base salary shall be $21,032 per month. 4.2 Additional Hours and Salary. Notwithstanding the above, Malkenhorst agrees to be reasonably available for additional hours of service as requested by the City Attorney, or his authorized designee, as reasonably required to perform his duties as Assistant City Attorney II, and shall be paid at the rate of $365 per hour for each hour (or portion thereof) that he works in a month in excess of 100 hours. 4.3 Increases. Malkenhorst's base salary and hourly rate for additional services shall each be increased at the same time and in the same percentage increase as salary increases are generally granted to other City employees. 4.4 Records and Pay Periods. Malkenhorst shall submit records of his hours, including a description of the amount of time each project was worked on each day, which time records are to be submitted monthly. Malkenhorst shall be paid every two weeks in accordance with the City's regular payroll practices, and his compensation shall be subject to all standard withholding deductions. 5. Expenses. The City shall, on a monthly basis, pay or reimburse Malkenhorst for the reasonable and necessary expenses incurred by Malkenhorst in connection with the performance of his legal duties hereunder if (a) such expenses have been previously approved by the City Attorney or reimbursement is otherwise appropriate in accordance with the City's established policies, and (b) the City receives such verification thereof as the City may reasonably require. Malkenhorst shall be entitled to reimbursement for any other expenses that Malkenhorst incurs in the course of undertaking his services for and on behalf of the City that are approved by the City Attorney or his authorized designee. Malkenhorst may use the services of City employees in connection with the performance of his duties hereunder; including, without limitation, the performance of clerical or typing duties,. Upon any termination of this Agreement, Malkenhorst shall be reimbursed for any unpaid expenses incurred through the date of termination that are reimbursable in accordance with this Section 5. 6. Other. Benefits. Malkenhorst shall be entitled to all of the benefits available generally to City employees; including, without limitation, participation in Cal PERS (with contributions by the City in the same manner as made for other City employees), and group health and life insurance provided to other City employees, and such additional benefit programs that may be established by the City for its employees. The City shall have the right to amend, reduce or, completely terminate any or all such plans by duly authorized action respecting all employees covered by such plans as a group. Upon any termination of this Agreement, Malkenhorst shall be entitled to all benefits through the date of termination, and to rights under benefit plans beyond the date of termination in accordance with the provisions of the plans, including COBRA in accordance with law. 7. Vacations and Holidays. Malkenhorst may take off such holidays and vacation days as are reasonable; provided, however, that he shall be obligated to provide 100 hours of services per month notwithstanding any such vacations or holidays. 8. Termination. This Agreement may be terminated as follows: 8.1 Death. Malkenhorst's employment shall terminate immediately in the event of his death. 8.2 Disability. The City may terminate Malkenhorst's employment for Disability by giving Malkenhorst three (3) days' advance written notice. For all purposes under this Agreement, "Disability" shall mean that Malkenhorst, at the time such notice is given, has been unable to substantially perform his duties under this Agreement for a period of not less than 2 three (3) consecutive months (or after four (4) months in the aggregate during a twelve-month period, whether consecutive or not) as the result of his incapacity due to physical or mental illness. A determination of Disability shall be made by the City Council in consultation with a physician reasonably satisfactory to Malkenhorst (or his representative) and the City, and Malkenhorst shall cooperate with the efforts to make such determination. Any such determination shall be conclusive and binding on the parties for the purposes of this Agreement. 8.3 Termination by City for "Cause". The City may terminate Malkenhorst's employment for "Cause". As used in this Agreement, the term "for Cause" shall be limited to a termination for the following acts by Malkenhorst: (i) Malkenhorst's refusal or inability to perform any material duties contemplated by this Agreement for a period of thirty (30) consecutive business days (except in the event that Malkenhorst is determined to have a Disability (as defined in Section 8.2) or in the event of Malkenhorst's death, in which case the date of termination shall be as set forth in Sections 8.2 and 8.1 respectively); (ii) grossly negligent, reckless or willful misconduct in Malkenhorst's performance of his duties and failure to cure such conduct within 30 calendar days following written notice from the City Council describing the misconduct; (iii) Malkenhorst's conviction of any felony involving moral turpitude, which conviction through lapse of time or otherwise is not subject to appeal; or (iv) Malkenhorst's material violation of City policies, which violation is not cured within 30 calendar days following written notice from the City Council describing the violation; provided, however, that the City Council may terminate Malkenhorst immediately, and without notice and opportunity to cure, if the City Council determines that such violation is so egregious that it is reasonably likely to subject the City to a risk of substantial liability. The determination of Cause shall be made by the City Council in its reasonable discretion. 8.4 Termination by Malkenhorst for "Good Reason". Subject to the provisions set forth below, at any time after the date Malkenhorst commences employment under this Agreement, upon thirty (30) days' advance written notice to the City of his intent to terminate the Agreement, Malkenhorst shall have the right to terminate his employment under this Agreement for "Good Reason". For purposes of this Agreement, "Good Reason" is defined as any one of the following: (i) the City fails to comply with the provisions hereof governing compensation and benefits to Malkenhorst; (ii) the City fails to maintain Malkenhorst in the position of Assistant City Attorney II or Assistant City Attorney I; (iii) the City materially breaches any other provision of this Agreement with Malkenhorst; or (iv) conduct by the City occurs that would cause Malkenhorst to commit fraudulent acts or would expose Malkenhorst to criminal liability; provided, however, that it shall not constitute Good Reason unless Malkenhorst shall have provided the City with written notice of its alleged actions constituting Good Reason (which notice shall specify in reasonable detail the particulars of such Good Reason) and the City has not cured any such alleged Good Reason within thirty (30) days of the City's receipt of such written notice. 9. Change in Position. Notwithstanding anything to the contrary set forth in this Agreement, the City Council may, at any time, without the need for action or consent by Malkenhorst, elect to change Malkenhorst's position from Assistant City Attorney II to Assistant City Attorney I, with such change to be effective upon 30 days prior written notice, which notice shall be given following a determination and vote by the City Council to make such change. Upon the effective date of such change, Malkenhorst's base'salary shall be adjusted following a determination and vote by the City Council and Malkenhorst shall remain obligated to perform additional services as described in Section 4.2. Effective upon such change, Malkenhorst shall continue to report directly to the City Attorney. All other terms and provisions of this Agreement shall remain in full force and effect, including, without limitation, the benefits and expense reimbursements, which shall not be decreased and which will not require any additional contribution or payment by Malkenhorst. 10. Notices. For purposes of this Agreement, notices and other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by United States certified mail, return receipt requested_, postage prepaid, or by reputable overnight courier, addressed as follows: If to Malkenhorst: Bruce V. Malkenhorst, Jr. 4305 Santa Fe Avenue Vernon, California 90058 If to the City: City of Vernon 4305 Santa Fe Avenue Vernon, California 90058 Attn: City Clerk or to such other address or the attention of such other person as the recipient party has previously furnished to the other party in writing in accordance with this Section 10. Such notices or other communications shall be effective upon receipt or refusal to accept delivery. 11. Integration. This Agreement represents the entire agreement and understanding between the parties as to the subject matter hereof and supersedes all prior or contemporaneous agreements, whether written or oral. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by the parties hereto. 12. Waiver. Failure or delay on the part of either party hereto to enforce any right, power, or privilege hereunder shall not be deemed to constitute a waiver thereof. Additionally, a waiver by either party of a breach of any promise hereof by the other party shall not operate as or be construed to constitute a waiver of any subsequent breach by such other party. 13. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule, such invalidity, illegality or unenforceability will not affect any other provision, but this Agreement will be reformed, construed and enforced to limit the non - enforceable term to the extent required to make it enforceable and, if necessary, such term shall be severed from the Agreement. 11 14. Headings. The headings of the Sections contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of any provision of this Agreement. 15. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal substantive laws, and not the choice of law rules, of the State of California. 16. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute but one and the same document. Facsimile signatures to this Agreement shall be enforceable. 17. Attorneys' Fees. In the event of any conflict, dispute, claim, or other issue arising out of or related to the terms of this Agreement or the relationship between the parties, or any other matter related to a dispute between the parties in connection with the conduct of either of them related to or arising out of Malkenhorst's employment by the City, the prevailing party in such matter'shall be entitled to recover from the non -prevailing party all of the prevailing party's costs (including, without limitation, costs of investigation and defense, court costs, and reasonable attorneys' fees and costs), in addition to such other remedies as are ordered. 18. Dispute Resolution. 18.1 Use of JAMS. The City and Malkenhorst agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance, termination or breach of this Agreement or Malkenhorst's employment with the City or termination of such employment, will be settled by final and binding arbitration by a panel of arbitrators to be held in Los Angeles County, California, in accordance with the rules of the Judicial Arbitration & Mediation Services, Inca ("JAMS"). Without limiting any other provision herein, this Section 18 shall survive the termination of Malkenhorst's employment with the City and will apply to any claim, dispute, or controversy that arises during or after the termination of Malkenhorst's employment with the City. 18.2 Procedure. The arbitration shall take place before a panel of three retired judges of the Superior Court of the State of California (the "Arbitrators") under the auspices of JAMS. Such arbitration shall be initiated by the parties, or either of them, within ten (10) calendar days after either party sends notice of a demand to arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. 18.3 Selection of Arbitrators. Each party shall select a retired judge from the JAMS panel, and the two selected judges shall mutually agree on the third retired judge from the JAMS panel. If one of the parties does not select a retired judge from the JAMS panel within 14 calendar days after receipt of the Arbitration Notice, JAMS will select the second judge, and the judge selected by JAMS and the judge selected by the other party will select the third judge for the panel. The third judge is to be selected within 10 calendar days following the selection of the 5 first two judges. The three judges will together serve as the Arbitrators. In the event of any subsequent vacancies or inabilities to perform among the Arbitrators appointed, the Arbitrators involved shall be replaced in accordance with the provisions of this Section 18.3 as if such replacement was an initial appointment to be made under this Section 18.3 within the time constraints set forth in this Section 18.3, measured from the date of notice of such vacancy or inability to the person or persons required to make such appointment. 18.4 The Decision. Any party may be represented by counsel or other authorized representative. In rendering a decision(s), the Arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of California and the terms of this Agreement. The decision of the Arbitrators shall be based on the evidence introduced at the hearing, and shall be based on, and accompanied by, a written statement of decision explaining the factual and legal basis for the decision as to each of the principal controverted issues. The agreement of two of the three Arbitrators as to the resolution of the dispute shall be a conclusive resolution. The Arbitrators shall deliver the written decision to the parties within 30 calendar days following the date of the selection of the last of the Arbitrators. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the Superior Court of the State of California, subject only to challenge on the grounds set forth in the California Code of Civil Procedure Section 1286.2. The validity and enforceability of the decision of the Arbitrators is to be determined exclusively by the California courts. The Arbitrators shall have the authority to grant Malkenhorst or the City or both all remedies otherwise available by law, including injunctions. 18.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and the arbitration process. 18.6 Waiver. The parties hereby acknowledge that they have voluntarily waived their right to a trial by the court or by a jury, have negotiated the terms of this Agreement, including, without limitation, this Section 18/qave consulted with counsel concerning such terms, and voluntarily agree to them. City's Initials Malke orst's Initials 6 Each of the parties has executed this Employment Agreement, in the case of the City by its duly authorized representative, as of the day and year first above written. ATTEST: By: ANUELA GIRO Acting City Clerk Approved as to Form: By: Jr1arrijon A t ng City Attorney 7 CITY OF VERNON a Municipal Corporation HILARIO GbNZAItS Mayor Pro-Tem