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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 7th day of February, 2022, by and between the CITY OF BARSTOW, California, a Municipal Corporation, hereinafter called the “City” or “Employer,” and Andrew Espinoza, Jr. hereinafter called “Employee.”
RECITALS
A. City desires to retain the services of Employee in the position of Police Chief, and Employee desires employment as Barstow Police Chief.
B. The City Council further desires to:
(1) Retain the services of Employee as Police Chief.
(2) Encourage the highest standards of fidelity and public service on the part of Employee.
(3) Provide a just means for terminating Employee’s employment and this Agreement when City may desire to do so.
C. The parties further desire to establish the Employee’s conditions of employment.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained the parties agree as follows:
1. Duties. \The City Manager of the City of Barstow, after consulting with the City Council per Barstow Municipal Code section 2.08.070(3), hereby appoints Employee as Barstow Police Chief, effective February 7, 2022, to perform the functions and duties of the Police Chief as specified in the City’s Municipal Code and applicable state law and to perform such other legally permissible and proper duties and functions as the City Manager may from time to time assign to Employee. Employee agrees to perform faithfully, industriously, and to the best of Employee’s ability, experience, and talents, all of the duties and functions required and expected of Employee, to the reasonable satisfaction of the City Manager.
2. Hours of Work. Employee is an exempt employee under the Fair Labor Standards Act and shall maintain a regular work schedule as set by the City Manager.
Employee’s duties may involve expenditures of time in excess of forty (40) hours per week and may also include time outside normal office hours such as attendance at City Council meetings or as needed to respond to emergencies. Employee shall be exempt from paid overtime compensation and shall not be entitled to additional compensation for such time. To ensure responsiveness in the event of an emergency, Employee agrees to reside within sixty minutes’ response time to City Hall.
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3. Term. The term of this Agreement is for four (4) years. This Agreement shall terminate on February 7, 2026, unless extended or amended by the parties or terminated earlier by the City Manager under Section 15.
4. Exclusivity. Employee agrees to remain in the exclusive employment of the Employer during the term of this Agreement. Employee agrees to devote Employee’s full time and effort to the performance of this Agreement and to remain in the exclusive employ of City and not to become otherwise employed nor engage in any consulting or outside business activities while this Agreement is in effect without the prior written approval of the City Manager. For purposes of this Agreement, outside business activities means any outside employment or any outside commercial activity which interferes with or poses a conflict with Employee’s position as Police Chief, unless otherwise required under state or federal law.
5. Extension of Agreement. At least 90 days prior to the expiration of the term, Employee may submit a written proposal to Employer for the extension of the provisions of this Agreement and in that event, the parties shall enter into good faith negotiations with respect to such proposal. Prior to this time, Employer shall exercise its best efforts to advise Employee whether or not this Agreement shall be extended or revised either as result of such negotiations, or, if no proposal is submitted by Employee, on such terms as Employer may determine to be appropriate. Nothing contained herein shall be construed to (1) require the Employer to extend the term of revise this Agreement, or (2) require an automatic renewal of this agreement.
6. Salary. Under this Employment Agreement City shall pay Employee for the performance of Employee’s duties as Police Chief a monthly base salary of $15,640.74 ($187,688.88 annually) plus an additional 3% a month education pay (Employee possesses a Master’s Degree) payable in installments at the same time as other management employees of the Employer are paid, less customary and legally required payroll deductions. Employee shall receive salary cost of living increases thereafter, to the extent granted to other management employees of the City pursuant to Unit 8 MOU, or any successor MOU with the Barstow Police Management Association. This salary constitutes Employee's "base wage rate." (A) Employee shall also be eligible to benefit from any step increases or performance bonus or incentives, as applicable under the Unit 6 MOU, or any successor MOU with the Barstow Management Employees Association. In all circumstances, the award of an increase shall be a discretionary act of the City Manager. Employee shall also be eligible to receive the POST/Educational Incentive as set forth in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association. In addition to the above referenced educational incentive pay, the City will also compensate the Employee an additional
2.5% above his base wage rate if the Employee obtains the POST Executive Management Certificate after serving two years as Chief of Police. (B) The City does not participate in the Social Security system; accordingly, Employee shall be exempt from Social Security taxes other than the mandatory Medicare portion of such taxes.
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8. Retirement and Deferred Compensation.
(A) City participates in the California Public Employees Retirement System (CalPERS) and will provide the Employee with the 3% at 50 public safety retirement plan.
Furthermore, with regard to handling the retirement program for Employee, the City shall abide by the retirement program provisions as outlined in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association as may be amended from time to time. (B) Upon completion of 10 years of employment with the City (whether or not the years of employment were in consecutive order), if Employee retires from the City through CalPERS, he will be eligible to participate in the City-funded retirement health insurance program, to the extent the same is offered to other management employees as set forth in the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association. (C) City shall provide deferred compensation for Employee to the same extent as offered to other management employees pursuant to the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association.
9. Medical, Dental and Vision Insurance. Employee shall be provided medical, dental, and vision insurance benefits on the same terms and conditions as afforded other City management employees in Unit 6. Subject to the limit applicable to other members of the management group (Unit 6), City shall pay the monthly premiums for medical, dental and vision insurance for Employee and Employee’s dependents in an amount sufficient to cover most plans offered by the City and not less than the amount afforded other City management employees in Unit 6.
10. Other Benefits. City shall provide to Employee any other benefits mandated by state or federal law. City shall provide term life insurance in the same amount and through the same insurance company providing life insurance to other management employees pursuant to the Unit 6 MOU. Employee shall also receive short and long-term disability insurance coverage to the same extent that such coverage is afforded management employees, as set forth in the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association. The City will pay the premium for Employee and Employee’s dependents to participate in the City’s Employee Assistance Program.
11. General Expenses and Business Equipment. City recognizes that certain expenses of a non-personal and job-related nature may be incurred by Employee. City agrees to reimburse Employee for reasonable expenses which are authorized by the City budget, submitted to the City Council for approval, and which are supported by expense receipts, statements or personal affidavits, and audit thereof in like manner as other demands against the City. Any purchases of supplies or other tangible items must be delivered to City Hall or other City facilities to be eligible for reimbursement. City shall bear the full cost of any fidelity or other bonds as may be required of Employee under any law, policy of ordinance. - 4 -
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12. Official and Professional Development Expenses. City shall pay reasonable sums, as approved by the City Manager, for expenses necessary for Employee’s continued professional growth and advancement and for professional dues and subscriptions for Employee necessary for Employee’s continued participation in associations and organizations, which memberships are necessary and desirable for the continued professional development of Employee and for the good of the City, such as the League of California Cities.
13. Performance Evaluation. The City Manager shall review and evaluate the performance of Employee by August 31, 2022, and annually thereafter. This evaluation shall be in accordance with specific criteria developed by the City Manager in consultation with Employee, which criteria may be altered as the City Manager may determine after consultation with Employee. Further, the result of each evaluation shall be memorialized in writing and provided to Employee. It shall be Employee’s responsibility to initiate this performance evaluation each year. The City Manager may annually define, in consultation with Employee, such written and prioritized goals and objectives as the City Manager determines necessary for the proper operation of the City of Barstow and the attainment of the City Council’s policy objectives. These goals and objectives shall be reasonably attainable within the time and appropriations provided.
14. Indemnification. City shall defend, hold harmless and indemnify Employee against any claim, demand, judgment, or action of any type or kind arising within the course and scope of Employee’s employment to the extent required by Government Code Sections 825 and 995.
15. Other Terms and Conditions of Employment.
(A) The provisions of the City’s Personnel Rules and Regulations (“Rules”) shall apply to Employee to the extent that they apply to Department Heads, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail. Without limiting the generality of the exception noted in the previous sentence, however, no provision of the Rules or this Agreement shall confer upon Employee a property right in his employment or a right to be discharged only upon cause. Employee is an at-will employee serving at the pleasure of the City Manager and may be dismissed at any time with or without cause, subject only to the provisions of this Agreement and the Public Safety Officers Procedural Bill of Rights Act. Employee shall not engage in any outside employment nor engage in any outside business activities without having obtained the prior written approval of City Council.
(B) The provisions of the City’s Personnel Rules and Regulations (“Rules”) shall apply to Employee, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail. Except as otherwise expressly provided for by this Agreement, regulations and contractual agreements adopted by the City relating to vacation, sick leave, holidays, CalPERS contributions, health coverage, and other fringe benefits as they now apply to other management employees of the City pursuant to the Memorandum of Understanding for Unit 6, or any successor MOU with the Barstow Management Employees’ - 5 -
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Association, shall apply to Employee. Without limiting the generality of the exception noted in the previous sentence, however, no provision of the Rules or this Agreement shall confer upon Employee a property right in Employee’s employment or a right to be discharged only upon cause during Employee’s tenure as City Administrator. At such times as Employee is serving as Police Chief, Employee is an at-will employee serving at the pleasure of the City Manager and may be dismissed at any time with or without cause, subject only to the provisions of this Agreement, the Barstow Municipal Code, and applicable law. (C) Except as otherwise provided in this Agreement, Employee's accrual of vacation shall be the same as that for other management employees, as set forth in the schedule within the Unit 6 MOU. Employee must provide sufficient notice of his intended vacation absence so that the City Manager may approve such absence in order to avoid an extended absence of Employee during critical time periods. Upon retirement or other end of employment, Employee shall be entitled to compensation for 100% of accumulated and unused vacation leave at Employee’s then-current salary, not to exceed the maximum accrual amount set forth above. (D) All other personal leave, management leave, holiday leave, family leave, bereavement leave, sick leave, jury leave, military leave, or other leave time shall be as provided to other management employees of the City, as set forth in the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association.
16. General Provisions.
(A) The parties agree to fully comply with Government Code sections that are part of Assembly Bill 1344, Statutes 2011, Chapter 692, and other applicable law as it relates to reimbursement by an employee upon conviction of a qualifying crime or abuse of office as defined, including the following:
(1) Gov’t Code sec. 53243. Reimbursement of paid leave salary required upon conviction of crime involving the office or position. (2) Gov’t Code sec. 53243.1. Reimbursement of legal criminal defense upon conviction of a qualifying crime involving the office or position.
(3) Gov’t Code sec. 53243.2. Reimbursement of cash settlement upon conviction of a qualifying crime involving the office or position. (4) Gov’t Code sec. 53243.3. Reimbursement of non-contractual payments upon conviction of a qualifying crime involving the office or position.
(5) Gov’t Code sec. 53243.4 Abuse of office or position defined. (B) This Agreement constitutes the entire agreement between the parties. City and Employee hereby acknowledge that they have neither made nor accepted any other promise or obligation with respect to the subject matter of this Agreement. This Agreement may be amended only by a writing signed by Employee, approved by the City Council, and executed on behalf of the City.
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(C) If any provision or any portion of this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of the Agreement shall be deemed severable and shall not be affected and shall remain in full force and effect. (D) Termination. Employee recognizes and acknowledges that Employee is an at-will employee and serves as Police Chief for the City of Barstow at the pleasure of the City Manager. Nothing in this agreement shall limit the right of the City Manager, in consultation with the City Council per Barstow Municipal Code section 2.08.070(3), to terminate the services of Employee at any time, with or without cause, with or without notice and without a hearing of any sort, subject to Employee’s rights under the Public Safety Officers Procedural Bills of Rights and the requirements of paragraph 15 below regarding severance. Notice of termination to City shall be given in writing to City, either by personal service or by registered or certified mail, postage prepaid, addressed to City as follows:
City Manager
City of Barstow
220 E. Mountain View Street, Suite A
Barstow, CA 92311.
With a courtesy copy to:
Matthew T. Summers
City Attorney, City of Barstow
Colantuono Highsmith & Whatley,
790 E. Colorado Blvd. Suite 850
Pasadena, CA 91101-2109.
Any notice to Employee shall be given in a like manner, and, if mailed, shall be addressed to Employee at the address then shown in City’s personnel records. For the purpose of determining compliance with any time limit stated in this Agreement, a notice shall be deemed to have duly given (a) on the date of delivery, if served personally on the party to whom notice is to be given, or (b) on the second (2nd) calendar day after mailing, if mailed in the manner provided in this section to the party to whom notice is to be given. Notwithstanding the forgoing, this Agreement shall automatically terminate on the death or permanent disability of Employee and Employee agrees to make best efforts to give City not less than 60 days’ written notice of resignation or retirement. Upon termination, Employee shall return any City-issued property, including any electronic devices, computers, or telephones, and shall further make any privately owned electronic devices, computers, or telephones used by Employee for City business available to the City’s Communications Department to confirm the erasure of any City information or data. (E) A waiver of any of the terms and conditions of this Agreement shall not be construed as a general waiver by the City and the City shall be free to enforce any term or condition of this Agreement with or without notice to Employee notwithstanding any prior waiver of that term or condition.
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15. Severance. If City terminates Employee without cause, as defined in this paragraph, or asks the Employee to resign, then City shall pay Employee severance as specified in this paragraph. If Employee’s employment is terminated within the first 90 days, Employee will receive two months’ severance pay. If Employee’s employment is terminated after the expiration of the first 90 days of employment, Employee will receive six (6) months severance pay, or such lesser amount as required by Government Code Section 53260. The City shall have cause to terminate Employee without payment of severance under this paragraph 15 if the City Manager finds that Employee engaged in any of the following conduct:
(a) Conviction of a felony or conviction of a misdemeanor involving moral turpitude or adversely reflecting on Employee’s fitness to perform assigned duties (a conviction following a plea of guilty or nolo contendere shall be deemed a conviction for purposes of this Agreement); (b) Intoxication on duty due to alcohol, cannabis, or a controlled substance, or continued abuse of “controlled substances,” as that term is defined in the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 as amended to date that materially affects the performance of the City Administrator 's duties;
(c) Inexcusable absence without leave;
(d) Habitual and willful neglect of duty;
(e) Documented and confirmed violation of local, state, and federal laws which prohibit discrimination including, but not limited to, discrimination based on race, religion, national origin, ancestry, physical handicap, marital status, sex, sexual orientation, age, gender identity, gender expression, or any other category protected by local, state or federal law, involving either members of the general public or City employees; (g) Retaliation against any other City officer or employee or member of the 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 directly related thereto;
(h) Verifiable actions or behaviors that create a hostile work environment or demonstrate any form of harassment prohibited by local, state, or federal law;
(i) Willful violation of any local, state, or federal conflict of interest or incompatibility of office laws;
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(j) Engaging in any outside business activities without the prior written approval of the City Council;
(k) Failure to comply with lawful directives of the City Council or City Manager;
(l) Theft, destruction, or unauthorized use of City property, City funds, or City equipment, including City staff time;
(m) Refusal to take or subscribe any oath or affirmation which is required by law;
(n) Acceptance by Employee of any valuable consideration from any person or entity other than the City for the regular performance of Employee’s duties; and
(o) Any violation of the Rules, to the extent they explicitly apply to the position of Police Chief, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail.
IN WITNESS WHEREOF, the City of Barstow has caused this Agreement to be signed on its behalf, and duly attested, and Andrew Espinoza Jr. signed this Agreement as of the day and year first above written.
EMPLOYEE
______________________________
Andrew Espinoza, Jr.
ATTEST: CITY OF BARSTOW
_________________________ ______________________________ Andrea Flores Willie Hopkins, Jr.,
CITY CLERK City Manager
Approved as to form:
_________________________
Matthew T. Summers, City Attorney
Colantuono Highsmith & Whatley