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RPVCCA_CC_SR_2014_01_08_02_City_Manager_Transition_AgreementCrTYOF RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: SUBJECT: REVIEWED: HONORABLE MAYOR AND CITY COUNCIL MEMBERS CAROL W. LYNCH, CITY ATTORNEY JANUARY 8, 2014 APPROVAL OF THE CITY MANAGER'S TRANSITION AGREEMENT AND GENERAL RELEASE AND APPOINTMENT OF CAROLYNN PETRU AS THE ACTING CITY MANAGER CAROLYN LEHR, CITY MANAGER ~ RECOMMENDATIONS: 1) Approve the City Manager's Transition Agreement and General Release; 2) Authorize the Mayor and City Clerk to execute the City Manager's Transition Agreement and General Release on behalf of the City; and, 3) Appoint Carolynn Petru as the Acting City Manager from February 1, 2014 until a new City Manager is selected by the City Council. BACKGROUND On December 12, 2013, City Manager Carolyn Lehr advised the City Council that she did not wish to extend her employment with the City beyond the term of the current agreement, which ends on June 30, 2014, after seven years of service as the City Manager. A copy of the City Manager's email is attached to this report. To provide for a smooth transition of the City Manager's duties during this transition period, and to document the City's Agreement with the City Manager, the City Attorney's Office has prepared a Transition Agreement and General Release. The Agreement makes it clear that the City Manager will perform all of the day-to-day functions of that position through the end of January, but after January 31 5 \ the City Manager will be focusing on assisting the City with the transition and will perform special projects that are assigned to her by the City Council. Since the City Manager will not be performing all of the day-to-day functions of that position after January 31 5 \ Mayor Duhovic is proposing that the City Council appoint Deputy City Manager Carolynn Petru to serve as the Acting City Manager, commencing February 1, 2014 until the City Council appoints a new City Manager. This action would comply with the provisions of the Municipal Code and, due to Ms. Petru's long tenure with the City and experience as Deputy City Manager, will further ensure a smooth transition and uninterrupted operation of the City. 2-1 DISCUSSION When a city manager announces the end of his or her employment with a city, there often is an agreement as to how the transition period will be handled. When formalized, such agreements often include a provision whereby the employee releases the City from all liability pertaining to the end of the employment relationship. The agreement that is attached to this report contains these provisions as well as provisions concerning her rights under the federal Age Discrimination in Employment Act of 1967. Bob May of the California Joint Powers Insurance Authority ("Authority") has reviewed the agreement on behalf of the Authority and concurs with Staffs recommendation that the Agreement be approved by the City Council. Accordingly, the City Attorney's Office recommends that the Agreement be approved this evening. Because the City Manager will be focusing on the transition and special projects after January 31 5 \ Mayor Duhovic recommends that the City Council appoint Deputy City Manager Carolynn Petru as the Acting City Manager until the City Council appoints a new City Manager. Typically, it takes several months to complete the recruitment process to find a new city manager. Because of the additional duties that are undertaken by an existing staff member who becomes the acting city manager, the existing employee's compensation often is adjusted accordingly during that period of time. FISCAL IMPACT If the compensation of the Deputy City Manager is increased while she serves as the Acting City Manager, there would be a corresponding fiscal impact. CONCLUSION Staff recommends that the City Council approve the attached agreement and appoint Carolynn Petru as the Acting City Manager. ATTACHMENTS Email from City Manager Carolyn Lehr City Manager's Transition Agreement and General Release 2-2 Subject: FW: My Future Plans From: Carolyn Lehr [mailto:clehr@rpv.com] Sent: Thursday, December 12, 2013 4: 11 PM To: CC Cc: Carol W. Lynch Subject: My Future Plans Mr. Mayor and Members of the City Council, As the Council is aware, my City Manager contract runs through June 30, 2014. At a time when the average tenure of a city m.anager in California is about three years, by the end of my term, I will have had the honor of serving the City of Rancho Palos Verdes for seven years. This is indeed a testament to our ability to work together on behalf of the 42,000 residents we serve. Since I joined the City in 2007, I've delighted in working for a total of ten different Councilmembers! Over the years, visionary Councilmembers-together with a dynamic and engaged citizenry and supported by an extremely dedicated and talented City staff--forged such generational achievements as the award-winning coastal landmark that is Terranea Resort; the acquisition of thousands of additional acres of trails and open space in partnership with the Palos Verdes Peninsula Land Conservancy; the strategic planning and safeguarding of funding to ensure safe maintenance of City infrastructure; and construction of critical storm drain projects such as Mccarrell Canyon and San Ramon to protect life and property. Although these are just a few examples, none of this would be feasible without strict adherence to fiscal discipline and the support of our citizen advisory boards. As fulfilling as it has been for me to be a part of such exciting times in our City, the rapidly approaching end of my term reminds me that I must carefully weigh what is in the best interest of Rancho Palos Verdes and its need for consistent, professional management-together with my own family's needs. Many of you are aware that my husband recently took a position with a technology firm in Silicon Valley, where our family enjoyed living for many years in earlier times. While it has been difficult for me to conclude that I should not ask this Council to extend my employment contract, I recognize that I want to spend time at my home in northern California. With that, I respectfully ask that the City Council seek out a successor City Manager. I look forward to working out an arrangement with the Council in the coming weeks that provides for a smooth transition of City Managers-allowing ample time for the City Council to conduct a recruitment, and giving my full commitment to any assistance I can offer to this Mayor and City Council. I wish to demonstrate the gratitude that I feel for having spent such a significant part of my professional career in service to the outstanding community and public organization that is the City of Rancho Palos Verdes. With Deepest Respect, Carolyn Lehr City Manager NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient of this communication, or an employee or agent responsible for delivering this 1 2-3 communication to the intended recipient, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. 2 2-4 TRANSITION AGREEMENT AND GENERAL RELEASE This Transition Agreement and General Release ("Agreement") is entered into by and between Carolyn R. Lehr ("Employee"), an individual, and the City of Rancho Palos Verdes, a California municipal corporation ("Employer" or "City"), as of the date set forth below. Recitals A. Employee is employed as the City Manager for Employer. B. Employee is appointed by, and serves at the pleasure of, the City Council as an at- will employee. Either Employee or Employer may end the employment relationship at any time, with or without cause. C. Employee and Employer have entered into a Fourth Amended and Restated Employment Agreement, as of July 5, 2011, as modified by the First Amendment to that agreement as of September 23, 2011 ("Employment Agreement"). Pursuant to its terms, unless sooner terminated, the Employment Agreement terminates on June 30, 2014. D. On December 12, 2013, Employee notified the City Council that she does not want to extend her current Employment Agreement beyond June 30, 2014. The content of Employee's letter to Employer is set forth in Exhibit "A" hereto. Accordingly, the parties mutually understand and agree that there will be no extension to the term of the Employment Agreement, and that their employment relationship will cease at the conclusion of the Employment Agreement on June 30, 2014. E. Employer and Employee desire to provide for a smooth transition for both the City and Employee. Employee desires to ensure continuity at the City during this transition, as requested by the City Council and as outlined in this Agreement. NOW THEREFORE, in consideration of the above recitals and of the mutual promises set forth below, the parties hereby agree: 1. Conclusion of Employment. A. The parties mutually agree that their employment relationship will end at the conclusion of the Employment Agreement, specifically on June 30, 2014. Unless Employee sooner resigns or Employer sooner terminates the employment relationship, as provided in the Employment Agreement, Employee will continue as City Manager through June 30, 2014. B. Prior to the conclusion of employment, the parties have agreed to a transition plan, as outlined below. Employee acknowledges and agrees that the professional courtesies and consideration she will receive during the transition period, including Employer's forbearance in ending the employment relationship for any period of time R6876.1076. l 667625vl l 1 2-5 after the date of this Agreement, along with the other terms of this Agreement, constitutes adequate consideration for this Agreement. 2. Transition Plan. A. To facilitate a smooth transition in the Office of City Manager, Employee shall continue to fulfill all of her regular duties as City Manager through January 31, 2014. After January 31, 2014, and through the conclusion of employment, Employee will not be required to perform all of her day-to-day regular duties, some of which may be delegated to other members of City Staff, but will perform special projects that are assigned by the City Council and will continue to receive her full pay and benefits, to the maximum extent permitted by law. During this period, the City Council may appoint an Acting City Manager to handle certain day-to-day City Manager functions. B. While the employment relationship continues after January 31, 2014, Employee will be available to assist in the transition of any matters on which she worked or is familiar with, to perform specific projects that are assigned by the City Council, and to consult on other matters within her knowledge or expertise. Employee will be available to attend meetings, either in person or by telephone, with reasonable notice from Employer. In the event Employee will be unavailable on a particular day, she may use appropriate accrued leave time for such absence. C. Employee will be permitted reasonable time during regular work hours to pursue alternate employment, including time for interviews, without the requirement to use paid leave time for partial days. Employee will inform the Mayor and will make prior arrangements when Employee will be away for more than one day for these purposes. D. As provided under the Employment Agreement, Employee agrees to remain in the exclusive employment of Employer. In the event Employee secures alternate employment while the Employment Agreement remains in effect, Employee shall resign employment with the City to accept such alternate employment. In that event, requirements for prior written notice to City and 60 day written notice of such resignation, per the Employment Agreement, will be deemed waived by Employer. E. The parties agree that the requirements of the Rancho Palos Verdes Municipal Code for removal of the City Manager are either inapplicable to this transition or are waived or satisfied by this Agreement. F. Employee shall receive leave payments, as follows: Employee shall receive a cash payment for all properly accrued and unused leave time to which she is entitled, under and pursuant to Employer's rules for such payments, through the conclusion of employment. Such payment will be payable following the conclusion of employment. R6876.1076.1667625vl 1 2 2-6 G. Except for any unpaid salary through the conclusion of her employment, and except for accrued and vested retirement benefits, and except as provided in Paragraph 2 F above, Employee agrees that she is owed no other salary, wages or benefits, including any cash equivalent or conversion, and that no other payment is due her arising from or in any manner related to her employment, as of the date she executes this Agreement. 3. Release. A. In consideration of the performance of the provisions contained in this Agreement, including the benefits and consideration received by Employee under the Transition Plan, Employee hereby forever relieves, releases, and discharges Employer, its City Council, and each member thereof, and its officers, employees, and agents ("Releasees") from any and all claims, debts, obligations, causes of action, demands, liabilities, costs, or expenses of whatsoever kind or nature, whether known or unknown, suspected or unsuspected, arising from or relating to Employee's employment with Employer and the termination of that employment. Employee further agrees that she will not institute or file any action or actions, causes of action (in law or in equity), suits, debts, liens, claims, demands, known or unknown, against any or all of the Releasees in state or federal court, or with any state, federal or local government administrative agency, or private organization, or otherwise, arising from or attributable to any employment practice of, or alleged wrongdoing by, the Employer, its Council Members, agents, and all persons acting by, through, under, or in concert with the Employer, relating in any way to Employee's employment or the termination of that employment, or the manner by which the employment was terminated. It is understood that this Agreement is a bar to any such action or proceeding. This release does not extend to rights that may not be waived as a matter of law, including unwaivable rights the Employee may have, if any, under the California Labor Code. B. Employee specifically acknowledges that she is aware of, and familiar with, the provisions of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND 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 HA VE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. II Employee, being aware of this Statute and its meaning and effect, expressly waives and relinquishes all rights and benefits she may have as well as any other rights or benefits derived from any statutes or common law principles of similar effect arising out of her employment with Employer and/or the termination of her employment with Employer. C. Employee is fully aware of and understands all of her rights under the Age Discrimination in Employment Act of 1967 (29 U.S.C. Sections 621-634) ("ADEA"). R6876.1076.1667625vl 1 3 2-7 Being fully aware of any potential claims she may have against Releasees, based upon the provisions of the ADEA, Employee knowingly and voluntarily releases Releasees from any and all claims she may have against them based upon any aspect of her employment with Employer including the cessation of her employment. Employee has been given the opportunity to take twenty-one (21) calendar days to consider the terms and effects of this Agreement prior to executing it. Unless earlier accepted, rejected or withdrawn, this Agreement will expire twenty-one (21) days after it is given to Employee. To the extent that Employee has taken less than twenty-one (21) days to consider this Agreement, Employee acknowledges that she has had sufficient time to consider the Agreement and consult with counsel. She further acknowledges that she does not require any additional time and waives any right to additional time. Employer and Employee agree that any changes to this Agreement prior to its execution, whether material or immaterial, do not restart the running of the twenty-one (21) day consiqeration period. Employee understands that the terms of this Agreement are not effective until eight (8) calendar days after its execution. Employee may revoke this Agreement within seven (7) calendar days of its execution. Revocation shall not be effective unless it is communicated in writing to and actually received by Employer within seven (7) calendar days after the execution of this Agreement. If Employee revokes this Agreement, Employer shall be relieved of all of its obligations under this Agreement. D. The parties understand and agree that the releases contained in this Agreement are intended to cover all claims and liability for acts and omissions occurring prior to the execution of this Agreement, to the maximum extent permitted by law. This Agreement does not release claims and liability based on acts and omissions occurring after execution of this Agreement or with respect to the rights created in this Agreement. 4. Advice and Expense of Counsel. A. Employee acknowledges that she has been advised to consult with an attorney prior to executing this Agreement and that she has been provided with adequate time to do so. Employee has advised Employer that she has consulted with an attorney for this purpose. B. Each party shall bear its own costs and attorney's fees incurred in connection with all matters leading to and including the negotiation and execution of this Agreement. 5. Representations and Warranties. A. Employee acknowledges that she has read this Agreement carefully, fully understands its terms, nature, and effect and is executing this Agreement freely, knowingly, and voluntarily. In executing this Agreement, Employee does not rely on any inducements, promises, or representations by Employer or any person other than the terms and conditions of this Agreement. R6876.1076.1667625vl I 4 2-8 B. The parties acknowledge and agree that the facts with respect to this Agreement may hereafter turn out to be other than or different from the facts now known to them or believed by them to be true, and the parties therefore expressly assume the risk of the facts being different and agree that this Agreement shall be in all respects effective and not subject to termination or rescission by reason of any such different facts. C. Employee acknowledges and warrants that as of the date of this Agreement she is in good physical and mental condition, that she is fully competent to manage her business affairs, and that she is not suffering from any physical or mental disability of any type. D. The parties represent and warrant that each of them is the sole and lawful owner of all right, title, and interest in and to every claim, right, and other matter which each party releases herein, and that each party has not otherwise heretofore assigned or transfE;rred, or purported to assign or transfer, to any person or entity, any claims or other matters herein released. E. The parties and individuals executing this Agreement represent and warrant that each of them has the authority to execute this Agreement on behalf of the party on whose behalf said person is purporting to execute this Agreement. F. Employee represents and warrants that no action of any kind is currently pending against Employer in any federal or state court or before any administrative agency relative to Employee's employment or the cessation of that employment. G. Each party agrees that such party will not take any action which would interfere with the performance of this Agreement by any other party hereto or which would adversely affect any of the rights provided for herein. 6. Mutual Cooperation. A. On or before the date the employment relationship ends, Employee shall return all keys, documents, files, equipment, and property belonging to Employer that are in her possession or under her control. B. Employer will return any property belonging to Employee that remains on Employer's premises, provided Employee provides information sufficient to identify and locate such property. C. Employee shall cooperate with Employer as may be reasonably necessary in the transition of her responsibilities. Prior to the end of employment, Employee shall do so as part of her regular duties. After employment ends, Employee shall be available for such purposes at her sole option and as her schedule permits. D. An agreed statement as to Employee's transition is attached hereto as Exhibit "A" and is incorporated herein by this reference. R6876.1076.1667625vl 1 5 2-9 7. Written Modifications. This Agreement supersedes any prior written or verbal adjustment of this matter and constitutes a complete resolution of all claims or potential claims by Employee against the Employer. There shall be no modification of this Agreement except in writing signed by both parties. 8. Attorney's Fees to Enforce Agreement. In the event suit is initiated by either party to enforce the terms of this Agreement, or for damages for breach of the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. 9. No Admission of Liability. It is understood and agreed that this Agreement shall not constitute or be construed as an admission of liability on the part of any of the parties herein released. 10. Governing Law. This Agreement and the rights and obligations created by this Agreement shall be governed by the laws of the State of California, without reference to any law that may require application of the laws of another jurisdiction. Venue for any lawsuit that is filed to enforce the provisions of this Agreement shall be in Los Angeles County Superior Court. 11. Agreement Binding. This Agreement is binding upon, and shall inure to the benefit of, the heirs, executors, administrators, representatives, successors, and assigns of the respective parties hereto and each of them. 12. Integration. This Agreement constitutes a single integrated written contract expressing the entire agreement of the parties hereto relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any party hereto, except as specifically set forth in this Agreement. All prior discussions and negotiations have been and are merged and integrated into, and are superseded by, this Agreement. 13. Severability. In the event that any provision or partial provision of this Agreement should be held to be void, voidable, or unenforceable, the remaining portions herein shall nevertheless remain in full force and effect. 14. Facsimile Signatures and Counterparts. The parties agree that this Agreement will be considered signed by a party when the signature of that party is delivered by facsimile transmission. Such signature shall be treated in all respects as having the same effect as an original signature. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. R6876.1076.1667625vl I 6 2-10 THIS DOCUMENT CONTAINS A RELEASE OF ALL CLAIMS. YOU ARE URGED TO CONSULT AN ATTORNEY AND TO READ IT CAREFULLY BEFORE SIGNING. DATED: ------- DATED: ------- ATTEST: EMPLOYEE Carolyn R. Lehr CITY OF RANCHO PALOS VERDES ("EMPLOYER") By: ____________ _ Its: ------------ Mayor ---------- City Clerk R6876.1076.1667625vl 1 7 2-11 Exhibit "A" Mutually Agreed Statement for City Manager Transition Following more than six and a half years of service as Rancho Palos Verdes City Manager, Carolyn R. Lehr has announced that she will be leaving the City at the end of her current Employment Agreement, which ends on June 30, 2014. Ms. Lehr has agreed to perform duties and projects designated by the City Council and to help the City smoothly transition to a new City Manager. Ms. Lehr issued the following statement: "As the Council is aware, my City Manager contract runs through June 30, 2014. At a time \\'.hen the average tenure of a city manager in California is about three years, by the end of my term, I will have had the honor of serving the City of Rancho Palos Verdes for seven years. This is indeed a testament to our ability to work together on behalf of the 42,000 residents we serve. Since I joined the City in 2007, I've delighted in working for a total of ten different Councilmembers! Over the years, visionary Councilmembers- together with a dynamic and engaged citizenry and supported by an extremely dedicated and talented City staff--forged such generational achievements as the award-winning coastal landmark that is Terranea Resort; the acquisition of thousands of additional acres of trails and open space in partnership with the Palos Verdes Peninsula Land Conservancy; the strategic planning and safeguarding of funding to ensure safe maintenance of City infrastructure; and construction of critical storm drain projects such as McCarrell Canyon and San Ramon to protect life and property. Although these are just a few examples, none of this would be feasible without strict adherence to fiscal discipline and the support of our citizen advisory boards. "As fulfilling as it has been for me to be a part of such exciting times in our City, the rapidly approaching end of my term reminds me that I must carefully weigh what is in the best interest of Rancho Palos Verdes and its need for consistent, professional management-together with my own family's needs. Many of you are aware that my husband recently took a position with a technology firm in Silicon Valley, where our family enjoyed living for many years in earlier times. While it has been difficult for me to conclude that I should not ask this Council to extend my employment contract, I recognize that I want to spend time at my home in northern California. With that, I respectfully ask that the City Council seek out a successor City Manager. "I look forward to working out an arrangement with the Council in the coming weeks that provides for a smooth transition of City Managers-allowing ample time for the City Council to conduct a recruitment, and giving my full commitment to any assistance I can offer to this Mayor and City Council. I wish to demonstrate the gratitude that I feel for having spent such a significant part of my professional career in service to the outstanding community and public organization that is the City of Rancho Palos Verdes." R6876. I 076.1667625vl 1 8 2-12 In response to Ms. Lehr's announcement, Mayor Jerry Duhovic made the following statement on behalf of the City Council: "We understand and acknowledge the City Manager's need to make this personal decision at this time. We appreciate all of her hard work, dedication and years of service to the City of Rancho Palos Verdes and applaud her desire to assist the City in a smooth, seamless, transition. "During her tenure, the City Manager has provided positive leadership and has built a strong city organization. We sincerely wish her the best in all of her future endeavors. "The City Council will take the necessary steps to ensure continuity at City Hall and will soon begin the process of engaging a new City Manager". R6876.I 076. l 667625vl I 9 2-13