City of Atwater
Police Chief
Employment Agreement
Section 4.2. Review and Evaluation. The City Manager agrees to review and evaluate Employee’s performance of Employee’s duties as Police Chief, pursuant to the terms of this Agreement (“Review and Evaluation”), on not less than an annual basis and to provide Employee with a written performance review.
The annual Review and Evaluation shall be conducted on or about the anniversary date of this Agreement of each year, or at the City Manager’s discretion.
Section 4.3. Vehicle. During the term, or any extension thereof, the City will provide Employee with an assigned vehicle to be used to and from home and work and will cover the costs and expenses associated with said vehicle. In the event the Police Chief requests and is authorized to use a private vehicle for City business, he shall be reimbursed for mileage in accordance with City policies.
Section 4.4. Administrative Leave. It is recognized that Employee must devote a great deal of time outside the normal office hours to City business as Police Chief. To that end, Employee shall receive up to eighty (80) hours of administrative leave (“Administrative Leave”) per calendar year, to be used as needed, upon the approval of the City Manager. Approved but unused Administrative Leave may be cashed out annually at the discretion of the City Manager and only if budgeted funds are available to permit the cash out, and Employee has elected for cash out in advance of earning the time. Administrative Leave is only available for use or cash out in the year in which it is given, has no other cash value, and may not be carried over into a subsequent year.
Section 4.5. Sick and Vacation Leave.
Section 4.5.1 Sick Leave. Employee shall accrue four (4) hours of sick leave each pay period over 24 pay periods a year.
Employee shall be permitted to cash out up to ninety-six (96) hours of accrued and unused sick leave annually pursuant to City policy at the discretion of the City Manager and only if budgeted funds are available to permit the cash out. There is no cap on sick leave accruals. If employee’s employment with the City terminates, sick leave shall be paid out pursuant to the City’s Paid Sick Leave Policy on the same terms and conditions as are offered to other City employees, consistent with the Mid Managers Group, or Department Director Group, Police Lieutenant, or Police Commander (if established), whichever provides the greater benefit to Employee.
Section 4.5.2. Vacation Leave. In recognition of Employee’s years of experience with a municipal government agency, Employee shall accrue six and two-thirds (6.67) hours of vacation leave per pay period over 24 pay periods a year. Employee may cash out up to eighty (80) hours of accrued, unused vacation annually at the
City of Atwater
Police Chief
Employment Agreement
discretion of the City Manager and only if budgeted funds are available to permit the cash out, and Employee has elected for cash out in advance of earning the time. Accruals are capped at twice the annual accrual amount.
Section 4.6. Holidays. Employee shall be subject to the provisions governing Holidays as are set forth in the City’s Personnel Rules and Regulations.
Section 4.7. Medical, Dental and Vision.
4.7.1. Medical, Dental and Vision. During the Term of this Agreement, or any extension hereof, the City shall pay the premiums for Employee and qualified dependents’ for medical, dental and vision insurance on the same terms and conditions as are offered to other similarly situated City employees, consistent with the tier system utilized for the Mid Managers Group or Department Director Group, Police Lieutenant, or Police Commander (if established), whichever provides the greater benefit to Employee. Employee shall be responsible for the payment of any premiums not paid for by the City and all deductibles, co-payments and disallowed costs. Should Employee elect not to participate in the City’s medical plan or elect to enroll in medical coverage through a spouse, Employee shall be eligible for in-lieu payments in the amount set for the Mid Managers Group or Department Director Group, Police Lieutenant, or Police Commander (if established), whichever provides the greater benefit to Employee.
4.7.2 Medical Upon Retirement. If Employee is a qualified annuitant under the requirements of CalPERS and the effective date of retirement is less than one hundred and twenty (120) days after separation from employment with the City, Employee may elect to participate in the City’s medical insurance plans. If qualified for enrollment, the City shall pay the premiums consistent with the tier system utilized for the Mid Managers Group or Department Director Group, Police Lieutenant, or Police Commander (if established), whichever provides the greater benefit to Employee at the time of Employee’s retirement. Employee shall be responsible for the payment of any premiums not paid for by the City and all deductibles, co-payments and disallowed costs. When Employee and qualified dependents become eligible for Medicare, the City’s medical insurance plan shall become secondary insurance and the City’s obligation to pay premiums as set forth in this Section shall be reduced accordingly.
4.7.3 Dental and Vision Upon Retirement. Upon Employee’s retirement from the City, Employee and eligible dependents may
City of Atwater
Police Chief
Employment Agreement
elect to remain on the City’s dental and/or vision coverage plans.
Employee will be responsible for paying the full amount of the monthly premium amounts for Employee and eligible dependents, established by the City’s provider, as well as all deductibles, copayments, and disallowed costs. Said amounts are subject to change annually. The City shall bill Employee on a monthly basis for the full amount of the monthly premiums. Non-payment will result in disenrollment of Employee and eligible dependents without the option to re-enroll.
Section 4.8. Retirement. The City participates in the California Public Employees’ Retirement System (CalPERS). CalPERS will make the determination if Employee is considered a “Classic” safety member or “New” safety member” (as defined in the Government Code), and Employee shall contribute based on the enrolled tier. Employee shall pay 100% of the employee contribution.
Section 4.9. Life Insurance and Accidental Death and
Dismemberment. During the term of this Agreement, or any extension hereof, the City shall pay 100% of all premiums per existing policy in place at time of agreement to cover the life insurance policy currently in place for the benefit of Employee.
Section 4.10. Disability. During the term of this Agreement, or any extension hereof, the City shall pay 100% of all premiums per existing policy in place at time of agreement to cover both short term and long-term disability benefits for the benefit of Employee.
Section 4.11. Unemployment. During the term of this Agreement, or any extension hereof, the City shall contribute to the Unemployment Insurance Program for the benefit of Employee, at no cost to Employee.
Section 4.12. Changes in Fringe Benefits or Working Conditions.
Except as otherwise provided herein, all provisions of the Rules and Regulations of the City relating to changes to fringe benefits and/or working conditions as they now exist, or hereinafter may be amended, shall also apply to Employee as they would to other similarly situated City employees, consistent with the policy for the Mid Managers Group or Department Director Group, Police Lieutenant, or Police Commander (if established), in addition to the benefits enumerated for the benefit of Employee as herein provided.
Section 4.13. Professional Development. Subject to available funds, the City agrees to pay the professional dues, subscriptions, travel, lodging, meals, training expenses and other business expenses of Employee reasonably necessary for continued and full participation in national, state, and local associations, professional organizations, governmental groups and committees thereof for the good of the City in accordance with the approved budget. For the
City of Atwater
Police Chief
Employment Agreement
purposes of this section, all expenses shall be reasonable actual expenses, and Employee shall submit appropriate documentation of expenses.
Section 4.14 Expense Reimbursement. The City shall reimburse Employee for all sums necessarily incurred and paid by Employee in the performance of his duties, as approved by the City Manager. Employee shall submit a claim form or appropriate documentation to the City in compliance with City policies.
Section 5. Termination of Employment and Severance.
Section 5.1. Voluntary Resignation. Employee may resign at any time and agrees to give the City at least thirty (30) days advance written notice of the effective date of Employee’s resignation, unless the Parties otherwise agree in writing. If Employee retires from full-time public service with the City, Employee shall provide ninety days (90) advance written notice. During the notice period, all rights and obligations of the Parties under this Agreement shall remain in full force and effect. Promptly after the effective date of resignation or retirement, the City shall pay to Employee all salary and other compensation due and owing under this Agreement. In the event of voluntary resignation or retirement, Employee shall not be entitled to Severance, as set forth in Section 5.3 of this Agreement.
Section 5.2. Termination by City Manager. The City Manager may terminate this Agreement and remove Employee from his position as Police Chief at any time with or without cause, and in compliance with applicable provisions of the Peace Officers Procedural Bill of Rights. If Employee’s termination is based on charges of misconduct that publicly stigmatizes Employee’s reputation or impairs his ability to earn a living, or might damage his standing in a community, Employee may, within five (5) business days of the City Manager’s notice to Employee of his or her intent to terminate Employee’s employment, make a written request for a "name-clearing" hearing (as described in Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340 and its progeny) before the City Council in closed session. The "name-clearing" hearing is solely to provide Employee the opportunity to clear his name. The City Council may determine whether the allegations contained in the notice of termination are supported. If the City Council determines that the allegations are not supported, a decision shall be issued to reflect that Employee's termination was without fault. This decision will not, however, require that Employee be reinstated to his position. In the event Employee does not request a "name-clearing" hearing before the City Council, the City Manager’s decision to terminate will be effective by the close of business on the fifth (5th) day after the City Manager provided notice to Employee of his or her intent to terminate Employee’s employment. Should the Employee request a name clearing hearing within the five (5) days, termination will still take effect after the fifth day and Employee will not be on paid status during this period.
City of Atwater
Police Chief
Employment Agreement
Section 5.3. Termination With Severance. This provision only relates to Employee’s eligibility to receive severance pay pursuant to this Agreement and does not in any way impact Employee’s at-will status. In the event the City Manager terminates Employee’s employment and this Agreement without Good Cause, as defined in Section 5.4, below, or requests Employee’s resignation in lieu of such termination, subject to the conditions in this subsection, Employee shall be eligible to receive a sum equal to four (4) month’s Base Salary (“Severance”).
Such Severance is subject to the restrictions of Government Code section 53260.
Severance shall be paid in the same manner as to other similarly situated City employees unless otherwise agreed to by the City Manager and Employee.
Employee’s eligibility for Severance shall be expressly conditioned upon Employee’s execution (and non-revocation) of: (i) a waiver and release of any and all of Employee’s claims against the City, and its employees, elected officials, officers, and agents, and (ii) a covenant not to sue any of those parties. If the Employee resigns in lieu of termination, the Parties shall cooperate and agree regarding public announcements and communications regarding Employee’s separation. Such waiver shall be either drafted or approved by the City Attorney prior to execution.
Section 5.4. Termination Without Severance. This provision only relates to Employee’s ability to receive severance pay pursuant to this Agreement, and does not in any way impact Employee’s at-will status. The City Manager may at any time immediately terminate this Agreement and Employee’s employment for Good Cause, as defined below. If Employee is terminated for Good Cause, the City shall not be required to pay any Severance under this Agreement, and the City shall have no obligation to Employee beyond those benefits accrued as of Employee’s last day of employment and those the City is obligated to provide under federal or state law.
“Good Cause” for purposes of this Agreement is defined as the following:
1. Conviction of a felony;
2. Disclosing confidential or protected information of the City;
3. Misconduct or gross carelessness in the course of Employee’s work performance;
4. Unjustifiable and willful neglect of the duties described in this Agreement or Employee’s job description;
5. Commission of any act of fraud in the performance of Employee’s duties. In this context, “fraud” means an intentional
misrepresentation, deceit, or concealment of a material fact known to Employee that deprives the City or another person of legal rights or causes injury;
6. Dishonesty;
7. Failure to perform Employee’s duties to the standard set by the City, as determined by the City Manager,
8. Any conduct which violates the applicable provisions of the City’s personnel policies, rules or regulations for which an employee may be terminated;
City of Atwater
Police Chief
Employment Agreement
9. Repeated or protracted unexcused absences from the Employee’s office and duties;
10. Conduct that in any way has a direct, substantial, and adverse effect on the City’s reputation or the Administration Department whether during or outside business hours;
11. Violation of federal, state, or City discrimination laws;
12. Refusal to take or subscribe any oath or affirmation which is required by law;
13. Employee’s disability resulting in his inability to perform the essential functions of his job, which the City is unable to reasonably accommodate without placing an undue burden on City business operations;
14. Engaging in other employment or activities which conflict with, or present the appearance or possibility of conflicting with, City’s legitimate business interests; or
15. Substance abuse which adversely affects performance of Employee’s duties.
The City Manager may also place Employee on paid or unpaid investigatory leave during the Term of this Agreement.
Section 6. Notices. Any notice or communication required hereunder between the City and Employee must be in writing and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express, UPS, or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed.
If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day, or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered, as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
Such notices or communications shall be given to the Parties at their addresses set forth below:
City of Atwater
Police Chief
Employment Agreement
If to Employee: City of Atwater
Attn: Richard McEachin
750 Bellevue Road
Atwater, California 95301
CC: Employee’s home address on file
If to the City: City of Atwater
Attn: City Manager
1160 5th Street
Atwater, California 95301
Section 7. Indemnification. The City shall defend, hold harmless, and indemnify Employee against any tort, personnel, civil rights, or professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of Employee’s duties as Police Chief in accordance with the California Government Claims Act (Government Code section 810 et seq.) and shall provide a defense to Employee in accordance with Government Code sections 995-996.6. The City may decline to defend or indemnify Employee only as permitted by the Government Code. City may compromise and settle any such claim or suit and pay the amount of any resulting settlement or judgment; provided, however, the City’s duty to defend and indemnify Employee shall be contingent upon Employee’s good faith cooperation with such defense. In the event the City provides paid leave to the Employee pending an investigation or funds for a legal criminal defense pursuant to this Section, Employee shall reimburse the City for the amount of such paid leave or cost of the legal criminal defense, if Employee is convicted of a crime involving an abuse of office or position, as provided by Government Code sections 53243- 53243.1. Also, if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City if Employee is convicted of a crime involving an abuse of his or her office or position as provided in Government Code section 53243.2-53243.4 Section 8. Bonding. The City shall bear the full cost of any fidelity or other bonds required of Employee under any law or ordinance.
Section 9. General Provisions
9.1. Modification of Agreement. This Agreement may be
supplemented, amended, or modified only by a writing signed by the City Manager and Employee.
9.2. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the Parties and supersedes all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement
City of Atwater
Police Chief
Employment Agreement
by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement.
9.3. Severability of Agreement. If a court or an arbitrator of competent jurisdiction holds any section of this Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining sections of this Agreement shall not be affected.
9.4. Authority. All Parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement and the names, titles, and capacities herein stated on behalf of any entities, persons, states, or firms represented or purported to be represented by such entities, persons, states, or firms and that all former requirements necessary or required by state or federal law in order to enter into this Agreement had been fully complied with. Further, by entering into this Agreement, neither Party hereto shall have breached the terms or conditions of any other contract or agreement to which such Party is obligated, which such breach would have a material effect hereon.
9.5. Headings. The headings in this Agreement are included for convenience only, and neither affect the construction or interpretation of any section in this Agreement nor affect any of the rights or obligations of the Parties to this Agreement.
9.6. Necessary Acts and Further Assurances. The Parties shall, at their own cost and expense, execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.
9.7. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
9.8. Waiver. No covenant, term, or condition, or the breach thereof, shall be deemed waived, except by written consent of the Party against whom the waiver is claimed, and any waiver of the breach of any covenant, term, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition.
9.9. Counterparts. This Agreement may be executed in counterparts, including by signatures transmitted electronically or by fax, and all so executed shall constitute an agreement which shall be binding upon the Parties hereto, notwithstanding that the signatures of all Parties and Parties’ designated representatives do not appear on the same page.
9.10. Venue. Venue for all legal proceedings shall be in the Superior Court in and for the County of Merced in the State of California.
City of Atwater
Police Chief
Employment Agreement
IN WITNESS WHEREOF, this Agreement has been entered into by and between Employee and City as of the date of the Agreement set forth above.
CITY:
City of Atwater, a municipal corporation
of the State of California
By:
Chris Hoem, City Manager
Date Signed:
EMPLOYEE:
By:
Richard McEachin, an individual
Date Signed:
Approved as to Form:
By:
Frank Splendorio, City Attorney