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Resolution No. 2012-237RESOLUTION NO. 2012-237 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPOINTING MARK WHITWORTH TO SERVE AS THE CITY ADMINISTRATOR OF THE CITY OF VERNON AND APPROVING AND AUTHORIZING THE EXECUTION OF AN AT -WILL EMPLOYMENT AGREEMENT WHEREAS, Mark Whitworth ("Whitworth") has been employed exclusively in Fire Service from June 26, 1989 to July 21, 2010;, and WHEREAS, on July 21, 2010, in an effort to save costs and temporarily fill an unanticipated vacancy in the office of City Administrator, the City Council of the City of Vernon unanimously appointed Whitworth to serve as the Interim City Administrator at no additional compensation in addition to his then current position of Fire Chief; and WHEREAS, on September 16, 2010, in recognition of his demonstrated abilities and in order to continue to save costs, the City Council of the City of Vernon appointed Whitworth to, serve as the City Administrator at no additional compensation in addition to maintaining his current position of Fire Chief; and WHEREAS, on December 6, 2011, the City Council of the City -of Vernon adopted Resolution No. 2011-199 re -affirming the continued employment of Whitworth as both the City Administrator and City Fire Chief until April 17, 2012, or later if requested by the City Council, all at no additional compensation for the role of City Administrator and compensation provided only for the position of Fire Chief in accordance with the publicly available pay schedule for Fire Chief;/and WHEREAS, by letter dated April 10, 2012, pursuant to Section 4 of Resolution No. 2011-199, Whitworth exercised his option to continue to serve as Fire Chief and be compensated accordingly; and WHEREAS, on November 6, 2012, the City Council appointed the Interim City Clerk to negotiate an at -will employment agreement with Whitworth; and WHEREAS, during the course of the employment contract negotiations, Whitworth has agreed to resign as Fire Chief effective December 29, 2012, and assume employment exclusively as City Administrator effective December 30, 2012; and WHEREAS, by memo dated December 18, 2012, the Interim City Clerk has recommended that the. City enter into an at -will employment agreement with Whitworth to serve exclusively as the City Administrator of.the City of Vernon. 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 above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the At -Will Employment Agreement with Whitworth, effective December 30, 2012, in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Interim City Clerk to execute said Agreement for, and on behalf of, the City of Vernon and Deputy City Clerk, is hereby authorized to attest thereto. _2- SECTION 5: The City Council of the City of Vernon hereby directs the Interim City Clerk, or the Interim City Clerk's designee, to give a'fully executed Agreement to Whitworth. SECTION 6: The Interim City Clerk, or any authorized officer, shall administer the Oath of Office prescribed in the Constitution of the State of California to Whitworth and shall have him subscribe to it and file it with the Human Resources Department. SECTION 7: The Interim City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the Interim City Clerk of the City of Vernon shall cause this resolution and the Interim City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 18th day of December, 2012. Name: Vlliam J Davis Title: Mayor / +I-aT&-r -R T ,n 13 ATTE T: 4 i- W Dana Rded, Interim City Clerk 3_ STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Dana Reed, Interim City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2012-237, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, December 18, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of December, 2012, at Vernon, California. DarV Reed, Interim City Clerk (SEAL) - 4 - AT -WILL EMPLOYMENT AGREEMENT BETWEEN THE CITY OF VERNON AND . MARK WHITWORTH THIS AGREEMENT ("Agreement") is between the City of Vernon ("City") and Mark Whitworth ("Whitworth" or "Employee"). Recitals City desires to employ Whitworth as an at -will employee in the position of City Administrator. Whitworth desires to be the City Administrator and acknowledges that such employment is at -will. Whitworth is currently the City's Fire Chief. Whitworth will resign as Fire Chief effective December 29, 2012. The City Council, pursuant to the authority granted by the City of Vernon Charter, agrees to hire Whitworth, as an at -will employee, subject to the terms and conditions identified below. AGREEMENT Section 1: TERM, TERMINATION AND SEVERANCE A. Employment under this Agreement shall commence on December 30, 2012 and shall remain in full force and effect until December 31, 2014, which term may be extended at the agreement of Whitworth and the City. Whitworth will serve at the will and pleasure of the City Council in accordance with the City Charter, City Municipal Code and this Agreement. B. Consistent with the "at -will" nature of Whitworth's employment, the City Council may remove Whitworth from office at any time during this Agreement, without cause, upon 30 days written notice of such removal. if Whitworth is given written notice of his removal without cause, except for those provisions which survive termination, this Agreement shall automatically terminate concurrently with the effective date of the termination. The City Council may also relieve Whitworth of his duties as City Administrator during the 30-day period, or at any other time. Whitworth understands and acknowledges that as an "at -will" employee, he has no property interest in his continued employment with the City, no right to be terminated or disciplined only for just cause, and no right to appeal or challenge his termination or other disciplinary action the City Council may, in its sole discretion, impose upon Whitworth during his employment. C. In the event this Agreement is terminated by the City Council for any reason other than physical or mental incapacity, or those reasons noted in paragraph D., below, Whitworth shall receive the lesser of either of the following as severance pay: (1) six (6) months of salary, plus applicable benefits or (2) amount equal to the remaining balance to the end of the term of this Agreement, plus benefits. To be eligible for severance pay, Whitworth shall fulfill all of his obligations under this Agreement and shall sign acknowledgment and release of claims against the City. Such acknowledgement and release appears as Attachment "A" to this Agreement. All severance pay shall be paid within thirty (30) calendar days of the date Whitworth executes the acknowledgement and release of claims against the City. Whitworth shall not be entitled to any severance pay if he is terminated for cause or due to retirement. For purposes of this provision, grounds for termination for cause include but are not limited to persistent insubordination, incapacity, dereliction of duty, addiction to a controlled substance or alcohol, conviction of a crime involving moral turpitude or involving personal gain to him, any felony or a material breach of this Agreement. Section 2: DUTIES A. City engages Whitworth as the City Administrator to perform the functions and duties specified in the job description for the position as described in the City Charter and/or City Municipal Code and to perform, or cause to be performed, such other legally permissible and proper duties and functions as the City Council shall, from time to time, assign. B. Whitworth agrees that, to the best of his ability and experience, he will at all times conscientiously perform the duties and obligations required, either express or implied, by the terms of this Agreement, the ordinances, resolutions and adopted policies of the City of Vernon and the laws and regulations of the State of California and the United States. C. As a public employee, Whitworth is required to devote whatever time is necessary to fulfill the employment responsibilities and duties as identified in this Agreement. D. During the term of this Agreement, Whitworth is required to have and maintain a valid California Driver's license. E. Whitworth acknowledges that in connection with the performance of his duties, he will obtain information from City employees and third parties that is of a confidential nature. Whitworth agrees that he will not disclose such confidential information other than to officers and employees of the City who have been authorized to have access to such information. Whitworth further agrees that if he has a question as to the confidentiality of information obtained in the course of his employment, he will contact the City Attorney for advice. Section 3: .EXCLUSIVE EMPLOYMENT Whitworth agrees to focus his professional time, ability and attention to City business during the term of this Agreement. Consequently, Whitworth agrees not to engage in any other business pursuits, whatsoever, directly or indirectly, render any services of a business, commercial, or professional nature to any other person or organization, for compensation, without the prior written consent of the City Council. This does not preclude Whitworth from volunteering his services to other entities or individuals as long as such volunteer services are not in conflict with the services to be provided by Whitworth under this Agreement. Section 4: COMPENSATION Compensation shall be as set from time to time by City Council Resolution but shall not be less than $267,000 annually, payable biweekly in 26 equal installments of $10,269.23 less deductions for taxes, insurance, retirement benefits, voluntary contributions, and any other applicable deductions. In addition, Whitworth shall be entitled to all benefits provided by the City to executive personnel including heads of major City departments. Whitworth's salary shall be reflected in the City's publicly available salary schedule. 2of11 Section 5: PERFORMANCE REVIEWS AND MERIT ADJUSTMENTS Annually, or more frequently at the discretion of the City Council, the City Council will evaluate Whitworth's performance. Based on these performance evaluations, Whitworth may, at the discretion of the City Council, receive a salary adjustment (Merit increase) based on Whitworth's performance as evaluated by the City Council Section 6: BENEFITS A. Retirement As City Administrator, Whitworth will be enrolled in the California Public Employees Retirement System (PERS) retirement plan as a miscellaneous member; as such plan may be amended by the City Council. As of the date of this Agreement, such plan includes the 2.7% @ 55 benefit formula. Whitworth pays an 8% employee contribution. B. Holidays Whitworth shall receive approximately 12 annual paid holidays as identified in the City of Vernon Vacation Resolution for Executive Management classifications. Policies and Procedures for usage will be in accordance with the Vacation Resolution for Executive Management classifications. C. Vacation Whitworth shall receive vacation leave in accordance with the Vacation Resolution for Executive Management classifications. If Whitworth retires, resigns or is terminated, Whitworth shall be required to reimburse City for vacation time that is used, but not earned. Whitworth shall be paid for all earned, but unused vacation time on the books on the date of separation. Whitworth may cash out up to a maximum of one hundred seventy (170) hours of unused, but earned, vacation time annually. D. Sick Leave Whitworth shall accrue sick leave at the rate of 80 hours per year. The annual amount of 80 hours shall be credited at the rate of 3.08 hours per pay period to Whitworth's sick leave account. Any sick leave hours exceeding 480 will be compensated for at the end of the year at 50% of the Whitworth's hourly rate. If Whitworth voluntarily terminates employment with the City, he will be compensated for any sick leave hours in his sick leave bank at the time of separation. Employees that separate from service with more than 20 years of service credit would be compensated at 100% of then current pay rate applied to the accrued sick leave hours. E. Existing Benefits Whitworth may cash out up to 100% of all vacation and sick leave accrued as of December 29, 2012. All sick leave hours, including those in excess of 480 hours, will also be 3of11 cashed out at 100%. At Whitworth's option, the cash out of accrued leave may be through a one-time payment or through multiple payouts. F. Bereavement Leave - Whitworth will be granted bereavement leave with pay for up to 20 hours (2 days) upon the death of Employee's immediate family member. Bereavement leave will be granted pursuant to the applicable Fringe Benefit and Salary Resolution. G. Other Leaves Whitworth will be granted any applicable Workers Compensation Leave, Family Leave, Jury Duty Leave, Witness Leave, and Military Leave in accordance with the Personnel Policies and Procedures Manual. H. Car Allowance City shall pay Whitworth an automobile allowance of $600 per month. I. Flexible Benefits Plan During the term of this Agreement, Whitworth shall have the option to contribute pre-tax dollars to a Flexible Spending Account (FSA) for qualifying medical and dependent care related expenses. Whitworth may contribute up to $2,500.00 for medical care expenses and dependent care related expenses. Such allowance may be modified from time to time by the City Council. Such allowance may be used, at Whitworth's option, for reimbursement of qualifying medical and dependent care expenses, insurance, or any other similar benefit available to employees of the City in the flexible benefits plan. J. Medical and Dental Insurance Whitworth's Medical and Dental Insurance coverage shall be as set from time to time by City Council Resolution, but shall not be less than $1,100.00 per month for himself and all eligible dependents. K. Life Insurance City shall pay for a life insurance policy in the amount equal to Whitworth's annual salary while he is employed by City. In the alternative, the City may, at its discretion, decide to be self insured: L. Vision Care The City shall provide vision care benefits as set by the City Council. M. Long Term Disability Insurance City shall make available a Long Term Disability Insurance policy at Whitworth's expense which provides a maximum monthly benefit of 66 2/3 % of his base salary at the time of injury. 4of11 N. Deferred Compensation City shall allow Whitworth to participate, at his own expense, in the City Deferred Compensation Program. O. Home Computer Whitworth will be provided with a City owned Apple Ipad to be used for City business. The ipad may be stored and used at the Whitworth's home. At the end of employment, Whitworth shall return the City -owned ipad or purchase it for an amount set by the City. P. Dues and Subscriptions The City will pay dues and subscriptions for full participation in national, regional, state and local associations and organizations necessary or desirable for continued professional growth. Such dues and subscriptions must be approved by the City Council Q. Travel The City will pay for travel and accommodations to participate in professional associations and organizations (including training seminars) in accordance with a Travel Policy adopted by the City Council. R. Cell Phone At his option, Whitworth may be provided with a cell phone at City expense to be used for City business. If such cell phone is also used for personal business, then Whitworth shall bear one-half of the monthly service fees. Alternatively, if Whitworth elects to utilize his personal cell phone for City business, then he may submit for reimbursement of charges for calls related to City business. S. Retirement Protection Retirement medical benefits available to Whitworth as of December 29, 2012 shall be available to Whitworth on his date of retirement. Upon retirement, City agrees to temporarily pay Whitworth, the difference between the CalPERS benefits he would have received if CalPERS had accepted all compensation earnable reported for him by the City and had accepted all aspects of his employment with the City, and the amount CalPERS actually pays Whitworth, if any, for a period, not to exceed six (6) years. If Whitworth, or the City, challenges any determination by CalPERS to reduce his benefits and succeeds, Whitworth shall return to the City any reimbursement to him by CalPERS as a result of the appeal up to 100% payback, when reimbursed by PERS. In the event of Whitworth's demise either prior to retirement or during the period Whitworth or the City challenges any determination by CalPERS, Whitworth's eligible dependents shall be entitled to receive the funds which Whitworth would have otherwise received with the same provisions regarding the return of any reimbursement received to the City. 5of11 T. Annual Physical Exam City shall pay for an annual physical examination for Whitworth with a provider contracted by the City. At Whitworth's option, such annual examination may be taken in the form of a CT scan or'similar medical procedure. U. Other Employee Benefits On or about September 4, 2012, the City Council adopted and approved Resolution No. 2012-173 authorizing reimbursement of reasonable legal expenses, not to exceed $25,000.00, for current Vernon employees related to the California Public Employees' Retirement System Office of Audit Services audit of the City. The legal expenses cap is raised to $100,000.00 for Whitworth and remains in effect for the entire period described in Section S above. Section 7: RESIGNATION / RETIREMENT BY WHITWORTH Whitworth may resign at any time. Whitworth may retire, provided he is eligible for retirement, at any time. Whitworth agrees to provide forty-five (45) calendar days advance written notice of the effective date of his resignation or retirement. In the event Employee retires or resigns, Employee shall be entitled to payment for earned, but unused, vacation time, but not to severance pay as delineated in Section 1, paragraph C, above. Section 8: EXECUTIVE COMPENSATION LIMITATIONS If Whitworth is paid leave salary during a pending investigation, any salary provided for that purpose shall be fully reimbursed to the City if Whitworth is convicted of a crime involving an abuse of his office or position. If Whitworth is provided funds for any legal criminal defense during his employment with the City, any funds provided for that purpose shall be fully reimbursed to the City if the Whitworth is convicted of a crime involving an abuse of his office or position. If this Agreement is.terminated, any cash settlement related to the termination that Whitworth may receive from the City shall be fully reimbursed to the City if Whitworth is convicted of a crime involving an abuse of his office or position. Section 9: DISABILITY If Whitworth is permanently disabled or otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity or health for a period of thirty (30) calendar days beyond any earned sick leave, City shall have the option to terminate this Agreement, subject to those provisions which survive termination; however, the City's option to terminate under this Section shall be limited by its obligation to engage in the interactive process for reasonable accommodations and to provide reasonable accommodations as required by law. Nothing in this Section shall be construed to limit or restrict Employee's benefits or rights under workers' compensation or PERS. However, an employee terminated under this section is not eligible for severance pay as delineated in Section 1, paragraph C., above. 6 of 11 In cases of disability, Whitworth shall be compensated for any earned, but unused, vacation leave. Section 10: GENERAL PROVISIONS A. Notice Any notices required by this Agreement shall be in writing and either delivered in person or by first class, certified, return. receipt requested US Mail with.postage prepaid. Such notice: shall be addressed as follows: TO CITY: City Clerk City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 TO EMPLOYEE: Mark Whitworth B. Entire Agreement The text of this Agreement shall constitute the entire and exclusive agreement between the parties. All prior oral or written communications understanding or agreements between the parties, not set forth herein, shall be superseded in total'by this Agreement. No Amendment or modification to this Agreement may be made except by a written agreement signed by the Employee and the City and approved as to form by the City Attorney." C. Assignment This Agreement is not assignable by either the City or Employee. D. . Severability In the event that any provision of this Agreement is finally held or determined to be illegal or void by a court having jurisdiction over the parties, the remainder of this Agreement shall remain in full force and effect unless the parts found to be void are wholly inseparable from the remaining portions of this Agreement. E. Effect of Waiver The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions in this Agreement by the other party shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other time or times. F. Jurisdiction Any action to interpret or enforce the terms of this Agreement shall be held exclusively in a state court in Los Angeles County, California. Employee expressly waives any right to remove 7of11 any such action from Los Angeles County. G. Effective Date This Agreement shall not become effective until it has been signed by Employee, and approved by the City Council. [Signatures Begin on Next Page]. 8 of 11 IN WITNESS WHEREOF, the City of Vernon has caused this Agreement to be signed and executed in its behalf by its City Clerk, and executed by the Employee. City of Vernon, a California charter City and California municipal corporation Dated: By: Dana Reed, Interim City Clerk Approved as to form: Joung H.Yim Liebert Cassidy Whitmore Attorneys for the City of Vernon 9of11 In signing this Agreement, Whitworth understands and agrees that his employment status is that of an at -will employee and that his rights to employment with the City are governed by the terms and conditions of this Agreement rather than the ordinances, resolutions, and policies of the City of Vernon which might otherwise apply to employees of the City. Employee further acknowledges that he was given the opportunity to consult with an attorney prior to signing this Agreement. Dated:, Signed: Mark Whitworth 10 of 11 ATTACHMENT A ACKNOWLEDGEMENT AND RELEASE This is to confirm that on this date I have received severance pay in the amount of $ pursuant to my employment agreement with the City of Vernon. I acknowledge that, in accepting such severance pay, I am releasing the City, its employees, officers and agents, from any and all claims of any kind or nature I had or may have had against the City arising from my employment with the City, including but without limitation, age discrimination claims under the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act, other than those matters which survive termination of the At -Will Employment Agreement between me and the City of Vernon. Other than as limited above, I further acknowledge that this Acknowledgment and Release releases the City from and waivers any claims I may have against the City, its employees, officers and agents, stemming from my employment relationship, including the severance thereof, to the fullest extent permissible under the law. I further acknowledge that this waiver extends to all claims, known and unknown, relative to my employment with and cessation of my employment with the City. I specifically waive the application of Civil Code §1542, which provides: A general release does not extent to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. I have had the opportunity to consult with legal counsel relative to this Acknowledgement and Release and I had a reasonable period of time within which to consider signing this Acknowledgement and Release. I have signed this letter voluntarily and willingly. Dated: Employee 11 of 11 i J OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 9005$ Telephone (323) 583-8811 December 19, 2012 Mark Whitworth Re: At -Will Employment Agreement Dear Mr. Whitworth: Transmitted herewith is an original fully executed employment agreement, approved through Resolution No. 2012-237, approved by City Council on December 18, 2012. If you have any questions regarding this matter, please call Mr. Dana Reed at (323) 583-8811 ext. 363. W yours, .Juarez Records Management Assistant Enclosure c: Joaquin Leon Teresa McAllister Dana Reed Resolution No. 2012-237 Agreement File No. 12-129 Er,,Asivefy IndustnaC AT -WILL EMPLOYMENT AGREEMENT BETWEEN THE CITY OF VERNON AND MARK WHITWORTH THIS AGREEMENT ("Agreement") is between the City of Vernon ("City") and Mark Whitworth ("Whitworth" or "Employee"). Recitals City desires to employ Whitworth as an at -will employee in the position of City Administrator. Whitworth desires to be the City Administrator and acknowledges that such employment is at -will Whitworth is currently the City's Fire Chief. Whitworth will resign as Fire Chief effective December 29, 2012. The City Council, pursuant to the authority granted by the City of Vernon Charter, agrees to hire Whitworth, as an at -will employee, subject to the terms and conditions identified below. AGREEMENT Section 1: TERM, TERMINATION AND SEVERANCE A. Employment under this Agreement shall commence on December 30, 2012 and shall remain in full force and effect until December 31, 2014, which term may be extended at the agreement of Whitworth and the City. Whitworth will serve at the will and pleasure of the City Council in accordance with the City Charter, City Municipal Code and this Agreement. B. Consistent with the "at -will" nature of Whitworth's employment, the City Council may remove Whitworth from office at any time during this Agreement, without cause, upon 30 days written notice of such removal. If Whitworth is given written notice of his removal without cause, except for those provisions which survive termination, this Agreement shall automatically terminate concurrently with the effective date of the termination. The City Council may also relieve Whitworth of his duties as City Administrator during the 30-day period, or at any other time. Whitworth understands and acknowledges that as an "at -will" employee, he has no property interest in his continued employment with the City, no right to be terminated or disciplined only for just cause, and no right to appeal or challenge his termination or other disciplinary action the City Council may, in its sole discretion, impose upon Whitworth during his employment. C. In the event this Agreement is terminated by the City Council for any reason other than physical or mental incapacity, or those reasons noted in paragraph D., below, Whitworth shall receive the lesser of either of the following as severance pay: (1) six (6) months of salary, plus applicable benefits or (2) amount equal to the remaining balance to the end of the term of this Agreement, plus benefits. To be eligible for severance pay, Whitworth shall fulfill all of his obligations under this Agreement and shall sign acknowledgment and release of claims against the City. Such acknowledgement and release appears as Attachment "A" to this Agreement. All severance pay shall be paid within thirty (30) calendar days of the date Whitworth executes the acknowledgement and release of claims against the City. Whitworth shall not be entitled to any severance pay if he is terminated for cause or due to retirement. For purposes of this provision, grounds for termination for cause include but are not limited to persistent insubordination, incapacity, dereliction of.duty, addiction to a controlled substance or alcohol, conviction of a crime involving moral turpitude or involving personal gain to him, any felony or a material breach of this Agreement. Section 2: DUTIES A. City engages Whitworth as the City Administrator to perform the functions and duties specified in the job description for the position as described in the City Charter and/or City Municipal Code and to perform, or cause to be performed, such other legally permissible and proper duties and functions as the City Council shall, from time to time, assign. B. Whitworth agrees that; to the best of his ability and experience, he will at all times conscientiously perform the duties and obligations required, either express or implied, by the terms of this Agreement, the ordinances, resolutions and adopted policies of the City of Vernon and the laws and regulations of the State of California and the United States. C. As a public employee, Whitworth is required to devote whatever time is necessary to fulfill the employment responsibilities and duties as identified in this Agreement. D. During the term of this Agreement, Whitworth is required to have and maintain a valid California Driver's license. E. , Whitworth acknowledges that in connection with the performance of his duties, he will obtain information from City employees and third parties that is of a confidential nature. Whitworth agrees that he will not disclose such confidential information other than to officers and employees of the City who have been authorized to have access to such information. Whitworth further agrees that if he has a question as to the confidentiality of information obtained in the course of his employment, he will contact the City Attorney for advice. Section 3: EXCLUSIVE EMPLOYMENT Whitworth agrees to focus his professional time, ability and attention to City business during the term of this Agreement. Consequently, Whitworth. agrees not to engage in any other business pursuits, whatsoever, directly or indirectly, render any services of a business, commercial, or professional nature to any other person or organization, for compensation, without the prior written consent of the City Council. This does not preclude Whitworth from volunteering his services to other entities or individuals as long as such volunteer services are not in conflict with the services to be provided by Whitworth under this Agreement. Section 4: COMPENSATION Compensation shall be as set from time to time by City Council Resolution but shall not be less than $267,000 annually, payable biweekly in 26 equal installments of $10,269.23 less deductions for taxes, insurance, retirement benefits, voluntary contributions, and any other applicable deductions. In addition, Whitworth shall be entitled to all benefits provided by the City to executive personnel including heads of major City departments. Whitworth's salary shall be reflected in the City's publicly available salary schedule. 2of11 Section 5: PERFORMANCE REVIEWS AND MERIT ADJUSTMENTS Annually, or more frequently at the discretion of the City Council, the City Council will evaluate Whitworth's performance. Based on these performance evaluations, Whitworth may, at the discretion of the City Council, receive a salary adjustment (Merit increase) based on Whitworth's performance as evaluated by the City Council Section 6: BENEFITS A. Retirement As City Administrator, Whitworth will be enrolled in the California Public Employees Retirement System (PERS) retirement plan as a miscellaneous member; as such plan may be amended by the City Council. As of the date of this Agreement, such plan includes the 2.7% @ 55 benefit formula. Whitworth pays an 8% employee contribution. B. Holidays Whitworth shall receive approximately 12 annual paid holidays as identified in the City of Vernon Vacation Resolution for Executive Management classifications. Policies and Procedures for usage will be in accordance with the Vacation Resolution for Executive Management classifications. C. Vacation Whitworth shall receive vacation leave in accordance with the Vacation Resolution for Executive Management classifications. If Whitworth retires, resigns or is terminated, Whitworth shall be required to reimburse City for vacation time that is used, but not earned. Whitworth shall be paid for all earned, but unused vacation time on the books on the date of separation. Whitworth may cash out up to a maximum of one hundred seventy (170) hours of unused, but earned, vacation time annually. D. Sick Leave Whitworth shall accrue sick leave at the rate of 80 hours per year. The annual amount of 80 hours shall be credited at the rate of 3.08 hours per pay period to Whitworth's sick leave account. Any sick leave hours exceeding 480 will be compensated for at the end of the year at 50% of the Whitworth's hourly rate. If Whitworth voluntarily terminates employment with the City, he will be compensated for any sick leave hours in his sick leave bank at the time of separation. Employees that separate from service with more than 20 years of service credit would be compensated at 100% of then current pay rate applied to the accrued sick leave hours. E. Existing Benefits Whitworth may cash out up to 100% of all vacation and sick leave accrued as of December 29, 2012. All sick leave hours, including those in excess of 480 hours, will also be 3of11 cashed out at 100%. At Whitworth's option, the cash out of accrued leave may be through a one-time payment or through multiple payouts. F. Bereavement Leave Whitworth will be granted bereavement leave with pay for up to 20 hours (2 days) upon the death of Employee's immediate family member. Bereavement leave will be granted pursuant to the applicable Fringe Benefit and Salary Resolution. G. Other Leaves Whitworth will be granted any applicable Workers Compensation Leave, Family Leave, Jury Duty Leave, Witness Leave, and Military Leave in accordance with the Personnel Policies and Procedures Manual. H. Car Allowance City shall pay Whitworth an automobile allowance of $600 per month. Flexible Benefits Plan During the term of this Agreement, Whitworth shall have the option to contribute pre-tax dollars to a Flexible Spending Account (FSA) for qualifying medical and dependent care related expenses. Whitworth may contribute up to $2,500.00 for medical care expenses and dependent care related. expenses. Such allowance may be modified from time to time by the City Council. Such allowance may be used, at Whitworth's option, for reimbursement of qualifying medical and dependent care expenses, insurance, or any other similar benefit available to employees of the City in the flexible benefits plan. J. Medical and Dental Insurance Whitworth's Medical and Dental Insurance coverage shall be as set from time to time by City Council Resolution, but shall not be less than $1,100.00 per month for himself and all eligible dependents. K. Life Insurance City shall pay for a life insurance policy in the amount equal to Whitworth's annual salary while he is employed by City. In the alternative, the City may, at its discretion, decide to be self insured. L. Vision Care The City shall provide vision care benefits as set by the City Council M. Long Term Disability Insurance City shall make available a Long Term Disability Insurance policy at Whitworth's expense which provides a maximum monthly benefit of 66 2/3 % of his base salary at the time of injury. 4of11 N. Deferred Compensation City shall allow Whitworth to participate, at his own expense, in the City Deferred Compensation Program. O. Home Computer Whitworth will be provided with a City owned Apple Ipad to be used for City business. The ipad, may be stored and used at the Whitworth's home. At the end of employment, Whitworth shall return the City -owned ipad or purchase it for an amount set by the City. P. Dues and Subscriptions The City will pay dues and subscriptions for full participation in national, regional, state and local associations and organizations necessary or desirable for continued professional growth. Such dues and subscriptions must be approved by the City Council Q. Travel The City will pay for travel and accommodations to participate in professional associations and organ izations.(including training seminars) in accordance with a Travel Policy adopted by the City Council R. Cell Phone At his option, Whitworth may be provided with a cell phone at City expense to be used for City business. If such" cell phone is also used for personal business, then Whitworth shall bear one-half of the monthly service fees. Alternatively, if Whitworth elects to utilize his personal cell phone for City business, then he may submit for reimbursement of charges for calls related to City business. S. Retirement Protection Retirement medical benefits available to Whitworth as of December 29, 2012 shall be available to Whitworth on his date of retirement. Upon retirement, City agrees to temporarily pay Whitworth, the difference between the CaIPERS benefits he would have received if CaIPERS had accepted all compensation earnable reported for him by the City and had accepted all aspects of his. employment with the City, and the amount CaIPERS actually pays Whitworth, if any, for a period, not to exceed six (6) years. If Whitworth, or the City, challenges any determination by CaIPERS to reduce his benefits and succeeds, Whitworth shall return to the City any reimbursement to him by CaIPERS as a result of the appeal up to 100% payback, when reimbursed by PERS. In the event of Whitworth's demise either prior to retirement or during the period Whitworth or the City challenges any determination by CaIPERS, Whitworth's eligible dependents shall be entitled to receive the funds which Whitworth would have otherwise received with the same provisions regarding the return of any reimbursement received to the City. 5 of 11 T. Annual Physical Exam City shall pay for an annual physical examination for Whitworth with a provider contracted by the City. At Whitworth's option, such annual examination may betaken in the form of a CT scan or similar medical procedure. U. Other Employee Benefits On or about September 4, 2012, the City Council adopted and approved Resolution No. 2012-173 authorizing reimbursement of reasonable legal expenses, not to exceed $25,000.00, for current Vernon employees related to the California Public Employees' Retirement System Office of Audit Services audit of the City. The legal expenses cap is raised to $100,000.00 for Whitworth and remains in effect for the entire period described in Section S above. Section 7: RESIGNATION / RETIREMENT BY WHITWORTH Whitworth may resign at any time. Whitworth may retire, provided he is eligible for retirement, at any time. Whitworth agrees to provide forty-five (45) calendar days advance written notice of the effective date of his resignation or retirement. In the event Employee retires or resigns, Employee shall be entitled to payment for earned, but unused, vacation time, but not to severance pay as delineated in Section 1, paragraph C, above. Section 8: EXECUTIVE COMPENSATION LIMITATIONS If Whitworth is paid leave salary during a pending investigation, any salary provided for that purpose shall be fully reimbursed to the City if Whitworth is convicted of a crime involving an abuse of his office or position. If Whitworth is provided funds for any legal criminal defense during his employment with the City, any funds provided for that purpose shall be fully reimbursed to the City if the Whitworth is convicted of a crime involving an abuse of his office or position. If this Agreement is terminated, any cash settlement related to the termination that Whitworth may receive from the City shall be fully reimbursed to the City if Whitworth is convicted of a crime involving an abuse of his office or position. Section 9: DISABILITY If Whitworth is permanently disabled or otherwise unable to perform his duties because of. sickness, accident, injury, mental incapacity or health for period of thirty (30) calendar days beyond any earned sick leave, City shall have the option to terminate this Agreement, subject to those provisions which survive termination; however, the City's option to terminate under this Section shall be limited by its obligation to engage in the interactive process for reasonable accommodations and to provide reasonable accommodations as required by law. Nothing in this Section shall be construed to limit or restrict Employee's benefits or rights under workers' compensation or PERS. However, an employee terminated under this section is not eligible for severance pay as delineated in Section 1; paragraph C., above. 6of11 In cases of disability, Whitworth shall be compensated for any earned, but unused, vacation leave. Section 10: GENERAL PROVISIONS A. Notice Any notices required by this Agreement shall be in writing and either delivered in person or by first class, certified, return receipt requested US Mail with postage. prepaid. Such notice shall be addressed as follows: TO CITY: City Clerk City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 TO EMPLOYEE: Mark Whitworth B. Entire Agreement The text of this Agreement shall constitute the entire and exclusive agreement between the parties. All prior oral or written communications understanding or agreements between the parties, not set forth herein, shall be superseded in total by this Agreement. No Amendment or modification to this Agreement may be made except by a written agreement signed by the Employee and the City and approved as to form by the City Attorney. C. Assignment This Agreement is not assignable by either the City or Employee. D. Severability In the event that any provision of this Agreement is finally held or determined to be illegal or void by a court having jurisdiction over the parties, the remainder of this Agreement shall remain in full force and effect unless the parts found to be void are wholly inseparable from the remaining portions of this Agreement. E. Effect of Waiver The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions in this Agreement by the other party shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other time or times. F. Jurisdiction Any action to interpret or enforce the terms of this Agreement shall be held exclusively in a state court in Los Angeles County, California. Employee expressly waives any right to remove 7of11 any such action from Los Angeles County. G. Effective Date This Agreement shall not become effective until it has been signed by Employee, and approved by the City Council. [Signatures Begin on Next Page]. 8of11 IN WITNESS WHEREOF, the City of Vernon has caused this Agreement to be signed and executed in its behalf by its City Clerk, and executed by the Employee. City of Vernon, a California charter City and CgDfGmka municipal corporation Dated: ATTEST: Ana 1,Mrcia', --✓ Deputy City Clerk By: V 1 `-'� baYia' Reed, Interim City Clerk Approved as to form: Joung H. Yim Liebert Cassidy Whitmore Attorneys for the City of Vernon 9of11 IN WITNESS WHEREOF, the City of Vernon has caused this Agreement to be signed and executed in its behalf by its City Clerk, and executed by the Employee, City of Vernon, a California charter City and California municipal corporation Dated: By: Dana Reed, Interim City Clerk Approved as to form: ( JS�A g H6. Ylm rn L�Jebert Cassidy Mill ore Attorneys for the City of Vernon 9 of 11 In signing this Agreement, Whitworth understands and agrees that his employment status is that of an at -will employee and that his rights to employment with the City are governed by the terms and conditions of this Agreement rather than the ordinances, resolutions, and policies of the City of Vernon which might otherwise apply to employees of the City. Employee further acknowledges that he was given the opportunity to consult with an attorney prior to signing this Agreement. Dated: /0-2- `l l Signed: )OxabW Mark rhitworth 10 of 11 ATTACHMENT A ACKNOWLEDGEMENT AND RELEASE This is to confirm that on this date I have received severance pay in the amount of $ pursuant to my employment agreement with the City of Vernon. I acknowledge that, in accepting such severance pay, I am releasing the City, its employees, officers and agents, from any and all claims of any kind or nature I had or may have had against the City arising from my employment with the City, including but without limitation, age discrimination claims under the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act, other than those matters Which survive termination of the At -Will Employment Agreement between me and the City of Vernon. Other than as limited above, I further acknowledge that this Acknowledgment and Release releases the City from and waivers any claims I may have against the City, its employees, officers and agents, stemming from my employment relationship, including the severance thereof, to the fullest extent permissible under the law. I further acknowledge that this waiver extends to all claims, known and unknown, relative to my employment with and cessation of my employment with the City. I specifically waive the application of Civil Code §1542, which provides: A general release does not extent to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. I have had the opportunity to consult with legal counsel relative to this Acknowledgement and Release and I had a reasonable period of time within which to consider signing this Acknowledgement and Release. I have signed this letter voluntarily and willingly. Dated: Employee 11 of 11 RECEIVED DEC 12 2012 STAFF REPORT CITY CLERKS OFFICE CITY CLERK'S OFFICE DATE: December 18, 2012 TO: Honorable Mayor and City Council FROM: Dana W. Reed, Interim City Clerk RE: AT -WILL EMPLOYMENT AGREEMENT BETWEEN THE CITY OF VERNON AND MARK WHITWORTH Recommendation It is recommended that the City Council find that adoption of the Resolution proposed in this staff report is exempt under the California Environmental Quality Act (CEQA) in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. It is recommended that the City Council adopt a resolution approving the attached at -will employment agreement between the City of Vernon and Mark Whitworth and ordering that it be executed on behalf of the City. It is further recommended that the Interim City Clerk be instructed to administer the Oath of Office required by Article XX, Section 3 of the Constitution of the State of California to Mr. Whitworth on or before December 30, 2012. Background At its regular meeting held on November 6, 2012, the City Council of the City of Vernon appointed Interim City Clerk Dana Reed to negotiate an at -will employment agreement'between the City of Vernon and Mark Whitworth. Between November 6, 2012 and November 20, 2012, the Interim City Clerk met and conferred with Mr. Whitworth on numerous occasions to negotiate the terms of the agreement. At its regular meeting held on November 20, 2012, the Interim City Clerk reported to the Council on the status of the negotiations and received comments and instructions from the Council. Between November 20, 2012 and December 6, 2012 the Interim City Clerk met and conferred with Mr. Whitworth to further negotiate the terms of the agreement. At a special meeting held on December 6, 2012 the Interim City Clerk reported to the Council on the status of the negotiations and received further comments and instructions from the Council. Between December 6, 2012 and December 12, 2012 the Interim City Clerk met and conferred with Mr. Whitworth and agreed upon the terms contained in the attached document.