Resolution No. 94931
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RESOLUTION NO. 9493
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN EMPLOYMENT AGREEMENT BY AND BETWEEN THE CITY OF
VERNON AND MARK WHITWORTH AND TERMINATING THE
EMPLOYMENT AGREEMENT DATED JUNE 21, 2006
WHEREAS, on June 21, 2006, the City Council of the City of
Vernon adopted Resolution No. 9071 approving an Employment Agreement
dated June 21, 2006 with Mark Whitworth ("Whitworth") under which
Whitworth was to provide Fire Chief services; and
WHEREAS, the City of Vernon and Whitworth desire to terminate
the Employment Agreement dated June 21, 2006 and enter into a new
Employment Agreement setting forth the terms and conditions governing
their relationship for the performance of services in the capacity of
Fire Chief; and
WHEREAS, it is the desire of the City Council that there be
close cooperation and coordination between the Fire Chief and the City
Administrator in administering and implementing City Council policy.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
terminates the Employment Agreement dated June 21, 2006 effective
December 3, 2007 and reaffirms its appointment of Whitworth to serve as
the Fire Chief effective July 1, 2006 pursuant to Resolution No. 9071.
SECTION 3: The City Council of the City of Vernon hereby
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approves the Employment Agreement for services with Whitworth, a copy
of which is attached hereto as Exhibit A and incorporated by
Ireference.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for,
land on behalf of, the City of Vernon and the City Clerk is hereby
lauthorized to attest thereto.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Agreement to:
Mark Whitworth
4305 Santa Fe Avenue
Vernon, CA 90058
SECTION 6: Whitworth shall directly coordinate and
cooperate in the administering of City Council policies and practices
in relation to administrative and personnel matters in the Fire
Department with the City Administrator and shall keep the City Council
fully informed of the Department's administration and operation.
SECTION 7: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 3rd day of December, 2007.
ATTEST:
MANU LA GIRON, City Clerk
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Name: Leonis C. Malburg
Title: Mayor
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STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 9493, was
duly adopted by the City Council of the City of Vernon at a regular
meeting of the City Council duly held on Monday, December 3, 2007, and
thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
Vernon
(SEAL)
KANUELA GIR N, ity Clerk
- 3 -
I� � ;
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of December 3, 2007 (the "Effective
Date"), by and between the CITY OF VERNON, a municipal corporation, ("City") and MARK
WHITWORTH, an individual ("Whitworth"), based on the following facts and circumstances:
A. The City and Whitworth desire to enter into an Employment Agreement (the
"Agreement") to set forth each of their obligations and to govern their relationship. Effective as
of the Effective Date, this Agreement shall supersede and replace any prior agreements in their
entirety, either written or oral, and all of prior agreements shall be null and void and of no further
force and effect.
Now, therefore, the parties agree as follows:
1. Employment. Effective as of the Effective Date, and throughout the Term of
Whitworth's employment, subject to the terms of Section 7 below, Whitworth shall be employed
by City to serve as the Fire Chief. Whitworth shall have those duties that are consistent with the
duties of a Fire Chief, and shall perform such duties under the general direction and supervision
of the City Administrator, or his/her authorized designee.
2. Employment Term. Subject to Section 7, Whitworth's employment hereunder
shall be for a term of three (3) years commencing on the Effective Date and expiring at the close
of business on the day prior to the third anniversary of the Effective Date (the "Term"); provided,
however, that every three years, 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 three (3) years, 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. Scope of Work and Salary.
3.1 Whitworth shall be employed full time as the City's Fire Chief.
Whitworth's base salary shall be as set forth in the City's Salary Resolution.
4. Expenses. The City shall, on a monthly basis, pay or reimburse Whitworth for the
reasonable and necessary expenses incurred by Whitworth in connection with the performance of
his duties hereunder if (a) such expenses have been previously approved by the City 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. The following
expenses do not require pre -approval, unless the charges are anticipated to be substantially in
excess of previously approved similar charges: lengthy document typing, outside word
processing services, obtaining documents from research libraries or official agencies, and the
cost of travel and other expenses incurred on business trips to meetings or official appearances
on behalf of the City. Whitworth shall be entitled to reimbursement for any other expenses that
Whitworth incurs in the course of undertaking his services for and on behalf of the City that are
approved by the City Administrator or his/her authorized designee. Whitworth 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, Whitworth shall be reimbursed for any unpaid expenses incurred through the
date of termination that are reimbursable in accordance with this Section 4.
5. Other Benefits. Whitworth 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,
Whitworth 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.
6. Vacations and Holidays. Whitworth may take off such holidays as are recognized
by the City and 170 hours of vacation per year.
7. Termination. This Agreement may be terminated as follows:
7.1 Death. Whitworth's employment shall terminate immediately in the event
of his death.
7.2 Disability. The City may terminate Whitworth's employment for
Disability by giving Whitworth three (3) days' advance written notice. For all purposes under
this Agreement, "Disability" shall mean that Whitworth, 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
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 Whitworth (or his representative) and the City, and
Whitworth 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.
7.3 Termination by City for "Cause." The City may terminate Whitworth's
employment for "Cause". As used in this Agreement, the term "for Cause" shall be limited to a
termination for the following acts by Whitworth: (i) Whitworth'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 Whitworth is determined to have a Disability (as defined
in Section 7.2) or in the event of Whitworth's death, in which case the date of termination shall
be as set forth in Sections 7.2 and 7.1 respectively; (ii) grossly negligent, reckless or willful
misconduct in Whitworth's performance of his duties and failure to cure such conduct within
thirty (30) calendar days following written notice from the City Council describing the
misconduct; (iii) Whitworth's conviction of any felony involving moral turpitude, which
conviction through lapse of time or otherwise is not subject to appeal; or (iv) Whitworth's
material violation of City policies, which violation is not cured within thirty (30) calendar days
following written notice from the City Council describing the violation; provided, however, that
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the City Council may terminate Whitworth immediately, and without notice and opportunity to
cure, if the City Council determines that such violation is so egregious that it is reasonablikely
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.
7.4 Termination by Whitworth for "Good Reason." Subject to the provisions
set forth below, at any time after the date Whitworth commences employment under this
Agreement, upon thirty (30) days' advance written notice to the City of his intent to terminate the
Agreement, Whitworth 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 Whitworth; (ii) the City requires Whitworth to relocate to the City of Vernon or
requires Whitworth to be available in the City of Vernon on a basis that is substantially in excess
of past pattern and practice or otherwise unreasonable; (iii) the City materially breaches any
other provision of this Agreement with Whitworth; or (iv) conduct by the City occurs that would
cause Whitworth to commit fraudulent acts or would expose Whitworth to criminal liability;
provided, however, that it shall not constitute Good Reason unless Whitworth 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.
8. 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 Whitworth:
Mark Whitworth
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 8. Such notices or other
communications shall be effective upon receipt or refusal to accept delivery.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 Whitworth'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.
16. Dispute Resolution.
16.1 Use of JAMS. The City and Whitworth agree that any dispute or
controversy arising out of or relating to any interpretation, construction, performance,
termination or breach of this Agreement or Whitworth'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 16 shall survive the termination of Whitworth's employment with the City and will
apply to any claim, dispute, or controversy that arises during or after the termination of
Whitworth's employment with the City.
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16.2 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.
16.3 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
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 16.3 as if such
replacement was an initial appointment to be made under this Section 16.3 within the time
constraints set forth in this Section 16.3, measured from the date of notice of such vacancy or
inability to the person or persons required to make such appointment.
16.4 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 Whitworth or the City or both all
remedies otherwise available by law, including injunctions.
16.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and
the arbitration process.
16.6 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 16, have consulted with counsel
concerning such terms, and voluntarily agree to them.
City's Initials Whitworth's Initials
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:
Manuela Giron
City Clerk
Approved as to Form:
Jeff A. Harrison
City Attorney
C$I
CITY OF VERNON
a Municipal Corporation
Mayor / Mayor Pro-Tem
Mark Whitworth
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
December 19, 2007
Mr. Mark Whitworth
Fire Department
4305 Santa Fe Avenue
Vernon, California 90058
Re: Employment Agreement
Dear Mr. Whitworth:
Transmitted herewith is a fully executed agreement, as referenced
above, approved by City Council on December 3, 2007, through
Resolution No. 9493.
Very truly yours,
i
e ly Gi o
City Clerk
NG:dr
c: Resolution No. 9493
Agreement File No. 07-137
Exclusively Industfiaf
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of December 3, 2007 (the "Effective
Date"), by and between the CITY OF VERNON, a municipal corporation, ("City") and MARK
WHITWORTH, an individual ("Whitworth"), based on the following facts and circumstances:
A. The City and Whitworth desire to enter into an Employment Agreement (the
"Agreement") to set forth each of their obligations and to govern their relationship. Effective as
of the Effective Date, this Agreement shall supersede and replace any prior agreements in their
entirety, either written or oral, and all of prior agreements shall be null and void and of no further
force and effect.
Now, therefore, the parties agree as follows:
1. Employment. Effective as of the Effective Date, and throughout the Term of
Whitworth's employment, subject to the terms of Section 7 below, Whitworth shall be employed
by City to serve as the Fire Chief. Whitworth shall have those duties that are consistent with the
duties of a Fire Chief, and shall perform such duties under the general direction and supervision
of the City Administrator, or his/her authorized designee.
2. Employment Term. Subject to Section 7, Whitworth's employment hereunder
shall be for a term of three (3) years commencing on the Effective Date and expiring at the close
of business on the day prior to the third anniversary of the Effective Date (the "Term"); provided,
however, that every three years, 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 three (3) years, 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. Scope of Work and Salary_
3.1 Whitworth shall be employed full time as the City's Fire Chief.
Whitworth's base salary shall be as set forth in the City's Salary Resolution.
4. Expenses. The City shall, on a monthly basis, pay or reimburse Whitworth for the
reasonable and necessary expenses incurred by Whitworth in connection with the performance of
his duties hereunder if (a) such expenses have been previously approved by the City 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. The following
expenses do not require pre -approval, unless the charges are anticipated to be substantially in
excess of previously approved similar charges: lengthy document typing, outside word
processing services, obtaining documents from research libraries or official agencies, and the
cost of travel and other expenses incurred on business trips to meetings or official appearances
on behalf of the City. Whitworth shall be entitled to reimbursement for any other expenses that
Whitworth incurs in the course of undertaking his services for and on behalf of the City that are
approved by the City Administrator or his/her authorized designee. Whitworth 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, Whitworth shall be reimbursed for any unpaid expenses incurred through the
date of termination that are reimbursable in accordance with this Section 4.
5. Other Benefits. Whitworth 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,
Whitworth 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.
6. Vacations and Holidays. Whitworth may take off such holidays as are recognized
by the City and 170 hours of vacation per year.
7. Termination. This Agreement may be terminated as follows:
7.1 Death. Whitworth's employment shall terminate immediately in the event
of his death.
7.2 Disability. The City may terminate Whitworth's employment for
Disability by giving Whitworth three (3) days' advance written notice. For all purposes under
this Agreement, "Disability" shall mean that Whitworth, 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
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 Whitworth (or his representative) and the City, and
Whitworth 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.
7.3 Termination by for "Cause." The City may terminate Whitworth's
employment for "Cause". As used in this Agreement, the term "for Cause" shall be limited to a
termination for the following acts by Whitworth: (i) Whitworth'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 Whitworth is determined to have a Disability (as defined
in Section 7.2) or in the event of Whitworth's death, in which case the date of termination shall
be as set forth in Sections 7.2 and 7.1 respectively; (ii) grossly negligent, reckless or willful
misconduct in Whitworth's performance of his duties and failure to cure such conduct within
thirty (30) calendar days following written notice from the City Council describing the
misconduct; (iii) Whitworth's conviction of any felony involving moral turpitude, which
conviction through lapse of time or otherwise is not subject to appeal; or (iv) Whitworth's
material violation of City policies, which violation is not cured within thirty (30) calendar days
following written notice from the City Council describing the violation; provided, however, that
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the City Council may terminate Whitworth 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.
7.4 Termination by Whitworth for "Good Reason." Subject to the provisions
set forth below, at any time after the date Whitworth commences employment under this
Agreement, upon thirty (30) days' advance written notice to the City of his intent to terminate the
Agreement, Whitworth 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 Whitworth; (ii) the City requires Whitworth to relocate to the City of Vernon or
requires Whitworth to be available in the City of Vernon on a basis that is substantially in excess
of past pattern and practice or otherwise unreasonable; (iii) the City materially breaches any
other provision of this Agreement with Whitworth; or (iv) conduct by the City occurs that would
cause Whitworth to commit fraudulent acts or would expose Whitworth to criminal liability;
provided, however, that it shall not constitute Good Reason unless Whitworth 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.
8. 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 Whitworth:
Mark Whitworth
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 8. Such notices or other
communications shall be effective upon receipt or refusal to accept delivery.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 Whitworth'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.
16. Dispute Resolution.
16.1 Use of JAMS. The City and Whitworth agree that any dispute or
controversy arising out of or relating to any interpretation, construction, performance,
termination or breach of this Agreement or Whitworth'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 16 shall survive the termination of Whitworth's employment with the City and will
apply to any claim, dispute, or controversy that arises during or after the termination of
Whitworth's employment with the City.
1i
16.2 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.
16.3 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
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 16.3 as if such
replacement was an initial appointment to be made under this Section 16.3 within the time
constraints set forth in this Section 16.3, measured from the date of notice of such vacancy or
inability to the person or persons required to make such appointment.
16.4 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 Whitworth or the City or both all
remedies otherwise available by law, including injunctions.
16.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and
the arbitration process.
16.6 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 16, have consulted with counsel
concerning such terms, and voluntarily agree to them.
City's Initials iWwohW'sials
E
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:
App
CITY OF VERNON
a Municipal Corporation
By:
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Mayor
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Jef H * son .
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Mark Whitworth
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4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
November 18, 2009
Mr. Mark Whitworth
4305 Santa Fe Avenue
Vernon, CA 90058
Subj ect: Notice of Non -Renewal
Dear Mr. Whitworth:
With reference to our recent conversation, I refer to the Employment Agreement
entered into as of December 3, 2007, by and between the City of Vernon, a municipal
corporation and Mark Whitworth, an individual. Per section 2. Employment Term of
your Employment Agreement and specifically the automatic renewal of your
Employment Agreement, please accept this letter as our formal notice to you that we
will not be renewing the Employment Agreement effective December 3, 2010.
Very truly yours,
Donal O'Callaghan
City Administrator
DO:rmt
cc: Larry Wiener, City Attorney
Nelly Giron, City Clerk `f'
Personnel 6
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