CC SR 20200218 E - City Manager Employment Agreement
CITY COUNCIL MEETING DATE: 02/18/2020
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to approve a three -year contract of employment with
Mr. Ara M. Mihranian, AICP, as City Manager
RECOMMENDED COUNCIL ACTION:
(1) Approve that certain attached “CITY MANAGER EMPLOYMENT AGREEMENT
BETWEEN CITY OF RANCHO PALOS VERDES & ARA MICHAEL MIHRANIAN,
AICP,” and authorize the Mayor to execute the same on behalf of the City of
Rancho Palos Verdes, the Successor Agency to the Dissolved Rancho Palos
Verdes Redevelopment Agency and the Rancho Palos Verdes Improvement
Authority.
FISCAL IMPACT: $299,952 per year, with no fiscal impact in FY19-20. The $2,032
difference from the budgeted amount will be offset by savings from vacant positions
throughout the year.
Amount Budgeted: $297,920
Additional Appropriation: N/A
Account Number(s): 101-400-1410-XXXX (General Fund – City Manager/Salary & Benefits)
ORIGINATED BY: William W. Wynder, City Attorney
REVIEWED BY: Kit Fox, AICP, Interim Deputy City Manager
APPROVED BY: Ara Mihranian, AICP, Interim City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. City Manager Employment Agreement between City of Rancho Palos
Verdes & Ara Michael Mihranian, AICP (page A-1)
EXECUTIVE SUMMARY:
After conducting a careful executive search for a new full-time City Manager and
having interviewed four (4) qualified candidates, the City Council has unanimously
selected Mr. Ara M. Mihranian, AICP, to be the next City Manager. Each candidate
was brought to the City Council's attention by Ms. Bobbi C. Peckham, President of
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Peckham & McKenney, Inc., whom the City Council previously selected to
represent the City's interests in the executive search process.
BACKGROUND AND DISCUSSION:
Mr. Mihranian has been serving as the Interim City Manager while the City Council went
through a formal executive search process. Prior to his service as Interim City Manager,
Mr. Mihranian served as the City’s Director of Community Development commencing in
2016. Mr. Mihranian joined the City as an associate planner in 1998 after holding the
same position in Malibu.
As a senior and principal planner, Mr. Mihranian was responsible for some of the most
high-profile development projects in Rancho Palos Verdes, including Terranea Resort
and the Marymount College Campus Master Plan. Mr. Mihranian was named Deputy
Director of Community Development in 2010, spearheading the implementation of the
Palos Verdes Nature Preserve Public Use Master Plan. In recent years, Mr. Mihranian
oversaw the completion of the City’s General Plan update and the Natural Communities
Conservation Plan/Habitat Conservation Plan.
Mr. Mihranian grew up in Santa Monica and Northridge and earned a bachelor’s degree
in urban planning from Arizona State University. He is a member of the American
Institute of Certified Planners (AICP).
The City Council has negotiated a contract with Mr. Mihranian, a copy of which is
attached to this report. The salient provisions of the contract are briefly summarized
below:
1. The Agreement will commence on February 19, 2020.
2. The term of the Agreement is for three calendar years from and after the
effective date of February 19, 2020. The City Manager will serve as an “at will”
employee thereby affording the City Council the right to terminate the
Agreement, at any time, for its convenience.
3. Were the Council to elect to terminate the Agreement for its convenience, six
(6) months of salary and benefits will be afforded as severance.
4. The annual base salary that the City will pay to Mr. Mihranian is $210,000. The
salary may be adjusted by the Council, in its sole discretion, following an
annual performance and salary evaluation.
5. The City Council will also consider whether to afford Mr. Mihranian an
“employee retention payment,” again in its sole discretion, in connection with the
annual salary review.
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6. Mr. Mihranian will receive an automobile and electronic devices allowance in
total amount of $700.00 per month.
7. Mr. Mihranian will receive vacation , sick leave, health and other benefits that
are afforded to other City department head employees.
CONCLUSION:
Staff recommends that the City Council approve the City Manager’s contract and
authorize the Mayor to execute the same.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative action is available for
the City Council’s consideration:
1. Take such other action as the City Council deems appropriate consistent
with the requirements of law.
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CITY MANAGER EMPLOYMENT AGREEMENT
BETWEEN
CITY OF RANCHO PALOS VERDES & ARA MICHAEL MIHRANIAN, AICP
This CITY MANAGER EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into this 19 111 day of February, 2020, by and between the City Council of the CITY
OF RANCHO PALOS VERDES, acting as the legally constituted governing body of the City of
Rancho Palos Verdes, the Successor Agency to the Dissolved Rancho Palos Verdes
Redevelopment Agency and the Rancho Palos Verdes Improvement Authority (hereinafter
referred to collectively as the "City"), and Mr. ARA MICHAEL MIHRANIAN, AICP, an
individual (hereinafter referred as the "City Manager").
WHEREAS, it is the desire of City's City Council (hereinafter the "Council") to employ
an individual to serve in the position of City Manager as prescribed by state law and as set forth
in Title 2, Chapter 2.08, of City's Municipal Code; and
WHEREAS, it is the desire ofthe City's City Council to (1) secure and retain the services
of City Manager, (2) to provide inducement for him or her to maintain such employment, and (3)
to provide a mechanism for terminating City Manager's services, if and when necessary; and
WHEREAS, based on City Manager's executive and administrative qualifications and
ability, City's City Council desires to employ City Manager to serve as the city manager for the
City; and
WHEREAS, City Manager desires to accept employment as such from City.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, City
and City Manager hereby agree as follows:
AGREEMENT ---------
1.0 EMPLOYMENT & DUTIES
1.1 City hereby employs Mr. ARA MICHAEL MIHRANIAN, AICP, as City
Manager to perform the functions and duties specified in City's Municipal Code, and in the
Government Code of the State of California, and to perform such other legally permissible and
proper duties and functions as City's Council shall, from time to time, direct or assign. City
Manager acknowledges that the assigned duties shall also include services to the Successor
Agency to the Dissolved Rancho Palos Verdes Redevelopment Agency and the Rancho Palos
Verdes Improvement Authority.
1.2 City Manager shall focus his professional time, ability, and attention to City's
business during the term of this Agreement. City Manager shall not spend more than ten (1 0)
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hours per month in teaching, counseling, or other non-employer connected business activities
without prior approval of the City's City Council.
1.3 City Manager shall not engage, without the express prior written consent of the
City's City Council, in any other business duties or pursuits whatsoever or, directly or indirectly,
render any services of a business, commercial, or professional nature to any other person or
organization, whether for compensation or otherwise, that is or may be competitive with City,
that might cause a conflict-of-interest with City, or that otherwise might interfere with the
business or operation of City or the satisfactory performance of City Manager's duties.
2.0 TERM
2.1 Commencement & Effective Date. City Manager shall commence his services at
8:00a.m., Pacific standard time, on February 19, 2020 which shall also be deemed the Effective
Date of this Agreement. On the Effective Date, that certain INTERIM CITY MANAGER
EMPLOYMENT AGREEMENT, made and effective as of November 22, 2019, shall terminate
according to its terms.
2.2 Employment Status. City Manager is an "at-will" employee serving at the
pleasure of City, acting through its City Council, and subject to summary dismissal without any
right of notice or hearing, including any so-called "Skelly" meeting. Except as provided in
Section 2.3 below, City may terminate the employment of City Manager at any time, with or
without cause, upon compliance with the provisions set forth in Sections 3.0 or 4.0 of this
Agreement, and upon the affirmative vote ofthree (3) members of City's City Council.
2.3 Waiver of Certain Termination Rights. City Manager expressly waives any rights
afforded under City's personnel system or policies, and any rights afforded to City Manager
under the Rancho Palos Verdes Municipal Code (except as noted Section 2.4 hereinafter) or
under State or Federal law, including Government Code §§ 54950 et seq. ("Brown Act"), to any
form of pre-or post-termination hearing, appeal, or other administrative process pertaining to
termination, except those rights City Manager may have under the California or United States
constitutions to a name-clearing hearing.
2.4 Termination Limitation. City and City Manager agree that the scope of City's
limitation upon its right to terminate the employment of City Manager shall be modified from
that provided in City's Municipal Code Title 2, Chapters 2.08.120, which is hereby waived by the
parties, and 2.08.140, which is hereby modified to require the following:
"Notwithstanding the provisions of Sections 2.08.110 (Removal-
Procedure) through 2.08.140 (Removal-Limitation), the city manager
shall not be removed from office, other than for misconduct in office,
during or within a period of 60 days next succeeding any general
municipal election held in the city at which election a member of the city
council is elected. The purpose of this section is to allow any newly
elected member of the city council or a reorganized city council to
observe the actions and ability of the city manager in the performance of
the powers and duties of his office. After the expiration of the 60-day
period, the provisions of Sections 2.08.110 (Removal-Procedure)
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through 2.08.140 (Removal-Limitation) as to the removal of the city
manager shall apply and be effective."
2.5 Term. The term of this Agreement shall be for three (3) years commencing from
and after the Effective Date, subject to Sections 2.2, 2.3, and/or 2.4 of this Agreement, and
ending at midnight Pacific standard time on February 18, 2023, unless termination of this
Agreement is effected as provided herein. The term of the Agreement may be extended by
mutual agreement ofthe parties in the manner as provided in Section 13.0 ofthis Agreement.
2.6 Termination by City Manager. If City Manager determines to terminate this
Agreement, he shall be required to give a minimum of sixty (60) days' advance written notice to
Council prior to the effective date of his termination, unless a shorter period is acceptable to
Council, and City Manager shall not be eligible for severance pay in the event of his voluntary
resignation.
3.0 SEVERANCE
3.1 Severance. City Manager shall have the severance rights provided hereinafter.
The severance rights provided in this Section 3.0 shall constitute the sole and only entitlement of
City Manager in the event of termination, and City Manager expressly waives any and all other
rights except as provided herein. Nothing in this paragraph shall be construed as precluding City
Manager's right to contest the appropriateness of termination for cause in Los Angeles County
Superior Court or any court of competent jurisdiction or otherwise enforce the provisions of this
Agreement.
3.3 Termination For Cause. If the Council terminates City Manager for cause, as
defined m Section 4.0, City shall not be required to make the severance payment provided
herein.
.1 Written Statement Describing Cause; Name-Clearing Hearing. In the
event City Manager is terminated for cause, City shall provide City Manager with a written
statement describing the cause for termination and shall afford City Manager a name-clearing
hearing before City's City Council at a reasonable time upon written notice to the City Clerk
within seven (7) days of receiving the written statement.
.2 No Severance Payment While Under Investigation. In the event City
Manager is under investigation for any of the reasons set forth in Section 4.0, City may withhold
part or all of any severance payment afforded City Manager herein until it is determined if
charges will be filed, and if charges are filed, until final judgment is rendered; provided,
however, that City may not withhold the severance payment (if any), in whole or in part, beyond
twelve (12) months of the initiation of an investigation and/or the filing of charges, whichever
shall last occur.
3.4 Termination Without Cause & For the Convenience of City. Notwithstanding
Title 2, Chapter 2.08.150(D) of City's Municipal Code, in the event City's City Council
terminates City Manager for its convenience, and without cause, before the expiration of the term
of employment, City shall provide City Manager with the shorter of: (1) six ( 6) months' base
salary; and (2) continuation of City Manager's health benefits as of the time of termination, for
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six (6) months or until City Manager finds other employment, whichever occurs first; or (2) an
amount equal to the monthly salary of City Manager multiplied by the number of months left on
the unexpired term of the contract. However, if the unexpired term of this Agreement is greater
than six (6) months, the maximum severance amount shall be an amount equal to the monthly
salary of City Manager multiplied by six ( 6) .
. 1 City is currently a member of the California Joint Powers Insurance
Authority ("CJPIA") which makes available to the City Manager up to six (6) months of base
salary and COBRA benefits in effect at the time of termination under the terms of the CJPIA's
"Chief Executive Separation Payment" coverage, the terms of which may vary from time-to-
time, and are incorporated by reference. The terms of such Chief Executive Separation
Payment coverage in effect at the time of termination of City Manager's employment will
govern. If, at the time of termination of City Manager's employment, City is no longer a
member of the CJPIA, or the CJPIA no longer offers such Chief Executive Separation Payment
coverage, then City will only be obligated to provide the Severance Payment described in part (a)
above.
.2 Any severance payment provided for herein shall be conditioned upon
City Manager's execution of a general release of claims, a copy of which is attached hereto as
Exhibit "A," and payment shall not occur until after the expiration of the release revocation
period contained therein. In the event City Manager declines to execute or revokes the general
release of claims, no severance payment shall be made.
3.5 Application of Government Code §§ 53260-261. Government Code §§ 53260-
261 provides that all contracts of employment with a city must include a provision limiting the
maximum cash settlement for the termination of the contract to the monthly salary (excluding
benefits) multiplied by the number of months left on the unexpired term, but not more than
eighteen (18) months if the unexpired term exceeds 18 months. The severance payments
provided herein are expressly limited by this provision [(e.g., if termination occurred with six (6)
months left in the term, severance would be equal to the monthly base salary multiplied by six
(6) rather than twelve (12), provided City Manager executes and does not revoke a general
release of claims].
3.6 Application of Government Code § 53243.3. If this Agreement provides for: (1)
paid leave for the official pending an investigation; (2) funds for the legal criminal defense of the
official; or (3) any cash settlement related to City Manager's termination, such sums shall be
fully reimbursed by City Manager to City if the City Manager is convicted of a crime involving
abuse of his or her office or position. All provisions of Government Code § 53243.3 shall take
precedence over the terms of this Agreement.
3. 7 Application of Government Code § 3 511.2. Notwithstanding any other provisions
of this Agreement, it shall be prohibited for this Agreement to provide an automatic renewal
hereof that provides for an automatic compensation increase in excess of a cost-of-living
adjustment or a maximum cash settlement in excess of certain limits. Government Code §
3 511.2 is hereby incorporated into the terms of this Agreement as follows:
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"On or after January 1, 2012, any contract executed or renewed between a local
agency and a local agency executive shall not provide for the following:
(a) An automatic renewal of a contract that provides for an automatic increase in
the level of compensation that exceeds a cost-of-living adjustment.
(b) A maximum cash settlement that exceeds the amounts determined pursuant to
Article 3.5 (commencing with Section 53260) of Chapter 2 ofPart 1 of Division 2
of Title 5." [i.e., a cash settlement that exceeds 18 months of the Salary and
benefits]
3.8 No Severance if Termination Initiated By City Manager. City Manager expressly
agrees that he shall not be entitled to any severance payment as the result of the termination of
this Agreement if such termination is initiated by City Manager.
3.9 Payment. Any severance payment required under Section 3.0 shall be paid within
ten (1 0) days following the execution of a general release of claims, provided City Manager has
not revoked the release.
4.0 TERMINATION FOR CAUSE
City shall not be obligated to make any severance payment as described in Section 3.0
above, if City Manager is terminated for cause. For the purposes of this Agreement "cause" for
termination shall include, but not be limited to, the following: (1) loss of mental capacity for
more than six (6) consecutive months as determined by a court of competent jurisdiction; (2)
persistent, habitual or willful neglect of duty; (3) insubordination (which shall be defined as a
repeated failure to carry out a directive or directives of City's City Council made by Council as a
body); (4) corrupt or willful misconduct in office; (5) willful malfeasance, or conviction of an
illegal act (excepting minor traffic or moving violations) amounting to an act of moral turpitude
(a conviction following a plea of nolo contendere is deemed a conviction); (6) willful destruction
or misuse of City property; (7) habitual intoxication while on duty, whether by alcohol,
prescription or non-prescription drugs, and in the case of prescription drugs, where they are
being used in a manner not authorized by City Manager's treating physician; (8) inexcusable
absence without an authorized leave of absence; (9) willful political activity involving the
support of candidates for City's City Council or Municipal Code amendments; (10) theft or
attempted theft; (11) financial mismanagement; (12) material dishonesty; (13) willful violation
of Federal, State or City discrimination and harassment laws concerning race, religious creed,
color, national origin, ancestry, physical handicap, marital status, sexual orientation, sex or age
concerning either members of the general public or City's employee(s) while acting in the course
and scope of employment, while on City premises or time, and/or while acting without the prior
approval or direction of the City's City Council; (14) willful and unlawful retaliation against any
City officer or employee or member of the general public who in good faith reports, discloses,
divulges or otherwise brings to the attention of any appropriate authority any facts or information
relative to actual or suspected violations of any law occurring on the job or related directly
thereto; (15) willful violation of any conflict of interest or incompatibility of office laws; (16)
performance of material outside business interests that conflict directly with the activities and
duties as City Manager, but not including educational or professional training programs
conducted by City Manager whether for personal financial gain or not; (17) refusal to take or
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subscribe to any oath or affirmation which is required by law; or (18) engaging in conduct
tending to bring embarrassment or disrepute to City.
5.0 SALARY
5.1 Annual Compensation. City agrees to compensate City Manager for his services
rendered hereunder at an annual salary of TWO HUNDRED TEN THOUSAND DOLLARS
($210,000.00) as may be adjusted, from time-to time, in accordance with Section 5.3 hereinafter,
or as this Agreement may be amended. Such salary shall be payable in installments at the same
time as other Department Head employees of City are paid. City Manager shall pay his
contribution to FICA, MediCare, and SDI.
5.2 Annual Salary Review. City and City Manager agree to conduct an annual salary
review concurrently with the annual performance evaluation set forth in Section 6.2 hereinafter.
Such annual salary review shall include consideration of those benefits afforded City Manager in
this Agreement.
5.3. Discretionary City Manager Retention Payment. Commencing with the 2020
annual salary review, City's City Council agrees to consider whether to afford City Manager a
performance-based employee retention payment. The determination of whether, and in what
amount, if any, to afford a City Manager employee retention payment shall be in the sole and
unfettered discretion of City's City Council and shall not be the subject of any right of appeal or
revww.
5.4 Effectuating Salary Adjustment. City and City Manager agree that the affirmative
vote of three (3) members of Council shall be required to effectuate an increase in the salary paid
to City Manager paid pursuant to this Agreement. This provision shall not be interpreted to
require a separate affirmative vote of three (3) members of Council to approve the additional
benefits specified in Section 9.0 of this Agreement.
5.4 Deferred Compensation. City participates in a so-called "Section 457" deferred
compensation plan with the International City/County Management Association ("ICMA") to
which City Manager may participate. In addition, City shall contribute five percent (5%) of City
Manager's base salary into a "Section 401(a)" ICMA defined contribution plan.
6.0 PERFORMANCE EVALUATION
6.1 Purpose. The performance review and evaluation process set forth herein is
intended to provide review and feedback to City Manager so as to facilitate a more effective
management of City. Nothing herein shall be deemed to alter or change the employment status of
City Manager (as set forth in Section 2.2 above), nor shall this Section 6.0 be construed as
requiring "cause" to terminate this Agreement, or the services of City Manager thereunder.
6.2 Annual Evaluation. Council shall review and evaluate the performance of City
Manager annually between December 1 and December 31 of each calendar year commencing in
2020. Such review and evaluation shall be conducted concurrently with an annual salary review,
and in accordance with the purpose noted above. It shall be the obligation of City Manager and
the City Clerk to notify Council of the need to conduct the evaluation required by this Section.
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6.3 Written Summary. City and City Manager agree to jointly prepare a written
summary of each performance evaluation of City Manager, and to include the same in his or her
personnel file within two (2) weeks following conclusion of the review and evaluation process,
and shall schedule at least one (1) closed personnel session with City Manager to deliver and
discuss the evaluation.
7.0 HEALTH, LIFE AND DISABILITY INSURANCE
7.1 Scope. City shall provide to City Manager with medical, dental, vision, life and
long term disability insurance plans and/or programs as follows:
7.2 City shall provide City Manager with such medical, dental, vision, life and long
term disability insurance plans as set forth in the City's Management Employee Personnel Rules
and Resolution No. 97-93, as they now exist, or as the same may be amended or up-dated from
time to time by resolution of City's Council.
8.0 AUTOMOBILE
8.1 Car Allowance. City Manager shall be afforded a Seven Hundred Dollar
($700.00) per month vehicle allowance in full compensation for the usage of City Manager's
personal vehicle for City-related business.
9.0 VACATION, SICK LEAVE, EXECUTIVE LEAVE & OTHER BENEFITS
9.1 Vacation Leave. City Manager shall accrue vacation leave at the rate of twenty
(20) days per year. The vacation leave granted to City Manager may be used by City Manager at
his discretion, always considering the best interests of City. City Manager shall notify the Mayor
and City's Council whenever vacation leave is to be taken. If not used, said vacation leave shall
continue to accrue up to a maximum of Three Hundred Twenty (320) hours. Upon termination of
City Manager's employment under this Agreement, City shall pay City Manager, at the rate of
compensation then being earned by City Manager, for all accrued and unused vacation leave.
9.2 Sick Leave. As of the effective date of this Agreement, City Manager shall be
entitled to such sick leave as set forth in the City's Management Employee Personnel Rules and
Resolution No. 97-93, as they now exist, or as the same may be amended or up-dated from time
to time by resolution of City's Council. City Manager shall not be allowed to "cash out" any
portion of his accrued sick leave during the tenure of his employment with City.
9.3 Bereavement Leave. City Manager shall be entitled to such bereavement leave as
is currently afforded Department Head employees as the same may be modified for all
Department Head employees by resolution of City's Council from time to time.
9.4 Jury Duty. City Manager shall receive full pay and benefits while responding to a
jury summons or serving on a jury for up to ten (1 0) court days. Any compensation for such jury
duty (except travel pay) shall be remitted to City.
9.5 Holidays. From and after the effective date of this Agreement, City Manager
shall be entitled to such holidays as are currently afforded Department Head employees as the
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same may be modified for all Department Head employees by resolution of City's Council from
time to time.
9.6 Administrative Leave. As of the effective date of this Agreement, City Manager
shall accrue administrative leave at the maximum rate of Eighty (80) hours per year.
Administrative leave shall not be carried over from year-to-year, and shall not be considered an
accrued benefit for purposes of calculating accrued benefits under Section 3.2 of this Agreement.
9.7 Retirement. City shall provide City Manager with membership in the California
Public Employees Retirement System ("CalPERS") using the 2.5% at age 55 formula. City shall
pay all portions of the annual CalPERS contribution.
9.8 Department Head Benefits. Except as provided in Section 9.9, below, City
Manager shall receive the same general employment benefits that have been approved by City's
Council for other Department Head employees, as set forth in the City's Management Employee
Personnel Rules and Resolution No. 97-93, as they now exist, or as the same may be amended or
up-dated from time to time by City's Council.
9.9 No Additional Benefits. City Manager shall not be entitled to any cost of living
adjustments ("COLA") to compensation, if any, as are afforded Department Head employees or
as the same may be modified for all Department Head employees by resolution of City's Council
from time to time.
10.0 PROFESSIONAL DEVELOPMENT
10.1 Dues, Subscriptions, and Professional Development. City agrees to budget and
to pay for the professional dues and subscriptions of City Manager necessary for his participation
in national, regional, state and local associations and organizations necessary and desirable for
his professional participation, growth and advancement, and for the good of the City. The City
hereby agrees to budget and to pay the travel and subsistence expenses of City Manager for
professional and official travel, meetings and occasions adequate to the professional
development of City Manager and to adequately pursue necessary official and other functions for
the City including, but not limited to, the Annual Conference of the International City
Management Association, the State League of Municipalities and such other national, regional,
state and local governmental groups, including the American Planning Association, and
committees thereof which City Manager serves as a member.
10.2 Community participation is a necessary part of City Manager's duties and as such,
City shall pay all necessary dues, fees, and expenses for City Manager to belong to one local
civic service club to be selected by City Manager.
11.0 TRAVEL & MEETING EXPENSES
11.1 Out-of-Town Meeting & Seminars. City agrees to reimburse City Manager the
actual cost for registration, air or ground travel, lodging, and meals and other expenses incurred
by City Manager while attending overnight out-of-town meetings or seminars related to his
employment with City. To be eligible to receive reimbursement for meals and lodging for out-of-
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town meetings or seminars City Manager must have budgeted funds available for such, and shall
notify the Council in advance of attending such meetings and seminars.
11.2 Local Meetings & Seminars. City agrees to reimburse City Manager the actual
cost of registration, meals, and other expenses necessarily incurred while in attendance at local
meetings or seminars related to his employment with City.
11.3 Incidental Expenses. City agrees to reimburse City Manager the actual cost of
those incidental expenses necessarily incurred by City Manager while engaged in the business of
City upon the presentation of an appropriate receipt therefore.
12.0 BONDING
The City shall bear the full cost of any fidelity or other bonds required of the City
Manager by the Council or as required under any law or ordinance.
13.0 AMENDMENT OF AGREEMENT
City agrees that any amendment, alteration, extension, or modification to this Agreement
shall be in writing, signed by the parties hereto, approved by the affirmative vote of three (3)
members ofthe City Council with the written consent of City Manager.
14.0 INDEMNIFICATION
For the purpose of indemnification and defense of legal actions, City Manager shall be
considered an employee of the City and entitled to the same rights and subject to the same
obligations as are provided for all other employees of the City as set forth in Sections 825
through 825.6 and Sections 995 throughout 996.6 of the California Government Code.
15.0 GENERAL PROVISIONS
15.1 Entire Agreement. This Agreement represents the entire agreement between the
parties and supersedes any and all other agreement, either oral or in writing, between the parties
with respect to the employment of City Manager by City and contains all of the covenants and
agreements between the parties with respect to that employment. Each party to this agreement
acknowledges that no representations, inducements, promises or agreements, orally or otherwise,
have been made by either party, or anyone acting on behalf of either party, which are not
embodied herein, and that no other agreement, statement of promises not contained in this
Agreement shall be valid or binding upon either party.
15.2 Heirs and Assigns. This Agreement shall be binding upon, and inure to the benefit
of, the heirs at law and executors of the City Manager.
15.3 Effect of Waiver. The failure of either party to insist on strict compliance with
any of the terms, covenants, or conditions of 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
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power at any one time or times be deemed a waiver or relinquishment of that right or power for
all or any other times.
15.4 Partial Invalidity. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or invalidated in any way.
15.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, in full force and effect as of the date of
execution.
15.6 Independent Legal Advice. City and City Manager represent and warrant to each
other that each has received, to the extent desired, legal advice from independent and separate
legal counsel with respect to the legal effect of this Agreement and, City and City Manager
further represent and warrant that each has carefully reviewed this entire Agreement and that
each and every term thereof is understood and that the terms of this Agreement are contractual
and not a mere recital. This Agreement shall not be construed against the party or its
representatives who drafted it, or who drafted any portion thereof.
15.7 Conflicts Prohibited. During the term ofthis Agreement, City Manager shall not
engage in any business or transaction or maintain a financial interest which conflicts, or
reasonably might be expected to conflict in any manner, with the proper discharge of his or her
duties under this Agreement. City Manager shall comply with all requirements of law, including
but not limited to, Sections 87100 et seq., Section 1090 and Section 1125 of the Government
Code, and all other similar statutory and administrative rules. Whenever any potential conflict
arises or may appear to arise, the obligation shall be on City Manager to seek legal advice
concerning whether such conflict exists and City Manager's obligations arising therefrom.
15.7 Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be personally served or shall be sufficiently given when served upon the other party as
sent by United States Postal Service, postage prepaid and addressed as follows:
To City:
Attn: Mayor
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
w/copy to:
City Attorney
c/o Aleshire & Wynder, LLP
2361 Rosecrans Avenue, Suite 475
El Segundo, CA 90245
To City Manager:
Ara Michael Mihranian, AICP
(Address on File With the City Clerk)
Notices shall be deemed given as of the date of personal service or upon the date of
deposit in the course oftransmission with the United States Postal Service.
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01203 0004 630527.4 www A-10
IN WITNESS WHEREOF , the CITY OF RANCHO PALOS VERDES has caused this
Agreement to be signed and executed on its behalf by its Mayor, and duly attested by its officers
thereunto duly authorized , and City Manager has signed and executed this Agreement, both in
duplicate.
CITY OF RANCHO PALOS VERDES
Mayor
Dated: --------------------
ATTEST:
City Clerk
APPROVED AS TO FORM:
/()!)_)~
City Attorney
CIT ~
i
Dated: Z. · \2. ·Z.OZ..o
[END OF SIGNATURES -END OF AGREEMENT]
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01203.0004 630527.4 www A-11
EXHIBIT "A"
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
This Agreement of Separation, Severance, and General Release (hereinafter referred to as the
"AGREEMENT") is entered into by and between the City of Rancho Palos Verdes, a general law city
& municipal corporation (hereinafter referred to as "THE CITY"), and , an individual
(hereinafter referred to as "EMPLOYEE").
RECITALS
WHEREAS, EMPLOYEE was hired by THE CITY as an at-will City Manager effective
------serving at the pleasure of the City Council of THE CITY pursuant to a written contract,
a copy of which is attached hereto as Exhibit "A" ("THE CONTRACT"). EMPLOYEE is currently
_years old.
WHEREAS, THE CITY and EMPLOYEE desire that EMPLOYEE resign and enter into a
severance agreement whereby EMPLOYEE receives severance compensation in exchange for
executing a general release and waiver of any and all claims that EMPLOYEE may have against THE
CITY, including but not limited to its elected and non-elected officials, employees, attorneys, and
agents. Accordingly, the parties hereto intend by this AGREEMENT to mutually conclude any and all
employment relationships between THE CITY and EMPLOYEE by means ofEMPLOYEE' s voluntary
separation as of , __ . This AGREEMENT sets forth the full and complete terms and
conditions concluding EMPLOYEE's employment relationship with the CITY and any obligations
related thereto, including any provided under THE CONTRACT.
WHEREAS, in accordance with this AGREEMENT and with applicable state and federal laws,
EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post-employment
rights, including but not limited to, EMPLOYEE's rights under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), the Employee Retirement Income Security Act of 1974
("ERISA"), and the Health Insurance Portability and Accountability Act of 1996 ("HIP AA'').
NOW THEREFORE, and in consideration for the promises, waivers and releases contained
herein, the Parties agree as follows:
AGREEMENT
1. RECITALS
All of the Recitals listed above are material provisions ofthis AGREEMENT and are deemed
true by the Parties and incorporated herein by this reference.
2. CONSIDERATION
In exchange for the waivers and releases set forth herein, THE CITY shall provide EMPLOYEE
the following consideration:
2.1 EMPLOYEE shall receive payment to him or her at the time of his voluntary
separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or all other
01203.0004 630528.2 www A-12
wage compensation/benefits owed to EMPLOYEE upon separation of employment, as required by law
or THE CONTRACT or any other agreement with THE CITY.
2.2. In exchange for the waivers and releases set forth herein, THE CITY shall also
cause to be paid to EMPLOYEE an additional compensatory payment by means of severance,
settlement and release in the f01m of a lump sum amount of and
cents ($ .00), as set f01ih in THE CONTRACT in the fonn of a check made payable to
EMPLOYEE to be mailed to EMPLOYEE at EMPLOYEE's home address on file with THE CITY via
certified mail return receipt requested within thirty (3 0) business days after the EFFECTIVE DATE (as
defined below) of this AGREEMENT. This payment shall be subject to normal and applicable state and
federal withholdings as determined appropriate by THE CITY.
2.3 In exchange for the severance payment provided for herein, EMPLOYEE, and
on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases,
acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials,
employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through,
under, or in concert with any of them, and each of them (hereinafter refened to as "THE CITY
PARTIES"), from any and all claims, charges, complaints, contracts, understandings, liabilities,
obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages,
actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown,
suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which
EMPLOYEE ever had, relating to or arising out of any act, omission, occunence, condition, event,
transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the
beginning of time up to and including _, __ (hereinafter refened to collectively as
"CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or local
constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges
that the CLAIMS forever bmTed by this AGREEMENT specifically include, but are not limited to,
claims based upon any alleged breach of THE CONTRACT or any other agreement of employment,
any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA,
COBRA or HIP AA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful
termination in violation of public policy, any alleged breach of any express or implied contract for
continued employment, any alleged employment discrimination or unlawful discriminatory act, or any
claim or cause of action including, but not limited to, any and all claims whether arising under any
federal, state or local law prohibiting breach of employment contract, wrongful termination, or
employment discrimination based upon age, race, color, sex, religion, handicap or disability, national
origin or any other protected category or characteristic, and any and all rights or claims arising under the
California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor
Standards Act, the California Fair Employment and Housing Act, California Government Code sections
12, 900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, and any
other federal, state, or local human rights, civil rights, or employment discrimination or employee rights
statute, rule, or regulation, with the sole exception being any workers' compensation claims.
3. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER
ADEAANDOWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA'')
makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to
the nature and privileges of an individual's employment on the basis that the individual is age forty
( 40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the "OWBPA,"
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29 U.S.C. § 626, et. seq., Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and
prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and
voluntary. By entering into this AGREEMENT, EMPLOYEE acknowledges that he or she
knowingly and voluntarily, for just compensation in addition to anything of value to which
EMPLOYEE was already entitled, waives and releases any rights EMPLOYEE may have under the
ADEA and/or OWBPA. EMPLOYEE further acknowledges that he or she has been advised and
understands, pursuant to the provisions ofthe ADEA and OWBPA, that:
(a) This waiver/release is written in a manner understood by EMPLOYEE;
(b) EMPLOYEE is aware of, and/or has been advised of, his rights under the
ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently
may have under the ADEA, OWBPA and/or similar age discrimination laws;
(c) EMPLOYEE is entitled to a reasonable time of at least twenty-one (21) days
within which to review and consider this AGREEMENT and the waiver and release of any rights he
may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the
exercise ofhis own discretion, sign or reject this AGREEMENT at any time before the expiration of
the twenty-one (21) days;
(d) The waivers and releases set forth in this AGREEMENT shall not apply to
any rights or claims that may arise under the ADEA and/or OWBP A after the EFFECTIVE DATE
of this AGREEMENT;
(e) EMPLOYEE has been advised by this writing that he should consult with an
attorney prior to executing this AGREEMENT;
(f) EMPLOYEE has discussed this waiver and release with, and been advised
with respect thereto by, EMPLOYEE's counsel of choice, and that he or she does not need any
additional time within which to review and consider this AGREEMENT;
(g) EMPLOYEE has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT;
(h) Notice of revocation within the seven (7) day revocation period must be
provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby
revoke my acceptance of our Agreement of Severance and General Release;" and
(i) This AGREEMENT shall not be effective until EMPLOYEE has signed the
AGREEMENT and provided proof of same to THE CITY, and seven (7) calendar days have passed
since EMPLOYEE's execution and no revocation has been served by EMPLOYEE ("EFFECTIVE
DATE").
4. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE understands
that California Civil Code § 1542 reads as follows:
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"General Release--Claims Extinguished"
"A general release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the time of
executing the release and that, if known by him or her, would have materially
affected his or her settlement with the debtor or released party."
EMPLOYEE hereby waives the protection of California Civil Code§ 1542.
5. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might require a more
detailed specification of the claims being released pursuant to the provisions of Paragraphs 2, 3, and 4
above.
6. NON-CONFIDENTIALITY OF AGREEMENT
EMPLOYEE acknowledges that THE CITY is a public entity, and as such, that THE CITY
shall endeavor to but cannot promise to or otherwise keep the terms and conditions of this
AGREEMENT confidential.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each
other party as follows:
7.1. Advice of Counsel: The parties hereto have received independent legal advice
from their respective attorneys concerning the advisability of entering into and executing this
AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge that
they have been represented by counsel of their own choice in the negotiation of this AGREEMENT,
that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them
by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of
this AGREEMENT and of its legal effect.
7.2. No Fraud in Inducement: No party (nor any officer, agent, employee,
representative, or attorney of or for any party) has made any statement or representation or failed to
make any statement or representation to any other party regarding any fact relied upon in entering into
this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of
any other party in executing this AGREEMENT, or in making the settlement provided for herein,
except as expressly stated in this AGREEMENT.
7.3. Independent Investigation: Each pmiy to this AGREEMENT has made such
investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters
pertaining thereto, as it deems necessary.
7.4. Mistake Waived: In entering into this AGREEMENT, each party assumes the
risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that
any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed
from it, or that its understanding of the facts or of the law was incorrect, such pmiy shall not be entitled
to any relief in connection therewith, including without limitation on the generality of the foregoing any
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alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be,
and is, final and binding between the parties, regardless of any claims of misrepresentation, promise
made without the intent to perform, concealment of fact, mistake of fact or law, or any other
circumstance whatsoever.
7. 5. Later Discovery: The parties are aware that they may hereafter discover claims
or facts in addition to or different from those they now know or believe to be true with respect to the
matters related herein. Nevetiheless, it is the intention of the parties that EMPLOYEE fully, finally and
forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist
or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of such
intention, the releases given here shall be, and remain, in effect as full and complete releases of all such
matters, notwithstanding the discovery or existence of any additional or different claims or facts relative
thereto.
7.6. Indemnification: EMPLOYEE agrees to indemnifY and hold hannless THE
CITY or THE CITY PAR TIES from, and against, any and all claims, damages, or liabilities sustained
by them as a direct result of the violation or breach of the covenants, warranties, and representations
undetiaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees that
he or she shall be exclusively liable for the payment of all taxes for which he or she is responsible, if
any, as a result of his or her receipt of the consideration referred to in Paragraph 3 of this
AGREEMENT. In addition, EMPLOYEE agrees fully to indemnifY and hold the CITY PARTIES
harmless for payment of tax obligations as may be required by any federal, state or local taxing
authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this
AGREEMENT.
7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute all such
further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out
the provisions of this AGREEMENT. EMPLOYEE shall provide THE CITY with consultation
services (including deposition or trial testimony) in any litigation involving THE CITY which is
reasonably related to acts or occurrences transpiring during his employment. Said services shall be
provided as needed by THE CITY at a rate of $100.00 per hour.
7.8. Return of Confidential Information and Property: Prior to the separation date,
EMPLOYEE shall submit a written inventory of, and return to the City Clerk, all City keys, equipment,
computer identification cards or codes, and other equipment or materials or confidential documents
provided to or obtained by EMPLOYEE during the course ofhis or her employment with THE CITY.
7.9 No Pending Claims and/or Actions: EMPLOYEE represents that he has not
filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or
federal agency or court; that he will not do so at any time hereafter for any claim arising up to and
including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or court assumes
jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of
EMPLOYEE, whenever or where ever filed, he or she will request such agency or court to withdraw
from the matter forthwith.
7.10. Ownership ofClaims: EMPLOYEE represents and warrants as a material term
of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released or granted, or
purported to assign, transfer, release or grant, any of the CLAIMS disposed ofby this AGREEMENT.
In executing this AGREEMENT, EMPLOYEE further warrants and represents that none of the
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CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred
in any fashion to any other person and/or entity.
7.11 Enforcement Fees and Costs: Should any legal action be required to enforce the
terms of this AGREEMENT; the prevailing pmiy shall be entitled to reasonable attorneys' fees and
costs in addition to any other relief to which that pmiy may be entitled.
7.12 Authority: Each party represents to the other that it has the right to enter into this
AGREEMENT, and that it is not violating the tern1s or conditions of any other AGREEMENT to which
they are a party or by which they are bound by entering into this AGREEMENT. The pmiies represent
that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and
agreed that the individuals signing this AGREEMENT on behalf of the respective pmiies have actual
authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this
AGREEMENT has been signed.
8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an admission by
THE CITY of any liability of any kind. THE CITY denies any liability in connection with any claim
and intends hereby solely to avoid potential claims and/or litigation and buy its peace.
8.2. Governing Law: This AGREEMENT has been executed and delivered within
the State of California, and the rights and obligations ofthe parties shall be construed and enforced in
accordance with, and governed by, the laws ofthe State of California.
8.3. Full Integration: This AGREEMENT is the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions. This AGREEMENT may be amended only by a further agreement
in writing, signed by the parties hereto.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the
benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials,
attorneys, assigns, heirs, and successors in interest.
8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and
preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the
parties agree that same shall not be construed against any party.
8.6. Severability: In the event that any term, covenant, condition, provision or
agreement contained in this AGREEMENT is held to be invalid or void by any court of competent
jurisdiction, the invalidity of any such term, covenm1t, condition, provision or agreement shall in no way
affect any other term, covenant, condition, provision or agreement and the remainder of this
AGREEMENT shall still be in full force and effect.
8. 7. Titles: The titles included in this AGREEMENT are for reference only and are
not part of its terms, nor do they in any way modifY the terms of this AGREEMENT.
8.8. Counterparts: This AGREEMENT may be executed in counterparts, and when
each party has signed and delivered at least one such counterpart, each counterpmi shall be deemed an
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original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT,
which shall be binding upon and effective as to all parties.
8.9. Notice: Any and all notices given to any pmiy under this AGREEMENT shall
be given as provided in this paragraph. All notices given to either party shall be made by certified or
registered United States mail, or personal delivery, at the noticing party's discretion, and addressed
to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given on the
date of personal service or three (3) consecutive calendar days following deposit of the same in the
United States mail.
As to EMPLOYEE:
At EMPLOYEE's home address on file with THE CITY.
As to THE CITY:
Mayor
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and
executed on its behalfby its Mayor and duly attested by its City Clerk, EMPLOYEE has signed and
executed this Agreement, and the attorneys for THE CITY and EMPLOYEE, if any, have approved
as to form as of the dates written below.
DATED: __________ __ EMPLOYEE
By: __________________________ _
[NAME]
THE CITY
DATED: ____________ _ By: __________________________ _
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By: -------------------
City Attorney
[EMPLOYEE's LAW FIRM]
By: __________________ _
[Counsel]
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