Attachment 2
1 RETIRED ANNUITANT INTERIM EMPLOYMENT AGREEMENT
This RETIRED ANNUITANT EMPLOYMENT AGREEMENT FOR THE POSITION OF INTERIM DIRECTOR OF POLICE SERVICES (“AGREEMENT”) is entered into and made by and between the CITY OF CORONADO, a municipal corporation (“CITY”) and Richard “Rick” Martinez, an individual (“MARTINEZ”).
RECITALS
A. The CITY’S current Director of Police Services is retiring on January 4, 2024.
B. CITY desires to employ the services of MARTINEZ, as its Interim Director of Police Services, temporarily, to carry out the duties and responsibilities of the Director of Police Services as provided for by the City Municipal Code, in consideration of and subject to the terms, conditions, and benefits set forth in this AGREEMENT.
C. MARTINEZ desires to accept employment as Interim Director of Police Services in consideration of and subject to the terms, conditions, and benefits set forth in this AGREEMENT.
D. CITY has commenced an open recruitment to permanently fill the vacant position of Director of Police Services. During the recruitment period, the CITY has an immediate need for an Interim Director of Police Services, a position involving specialized skills and training and which is critically necessary to the on-going duties and functions of the CITY.
E. MARTINEZ represents that he is a retired annuitant and person receiving a benefit from the California Public Employees’ Retirement System (“CalPERS”) within the meaning of Government Code §§ 7522.56 and 21221(h). MARTINEZ acknowledges that he is restricted to working no more than a combined 960 hours for CITY, a state agency, or other CalPERS contracting agencies (collectively “CalPERS Agencies”) during CITY’S 2023-2024 fiscal year, and that his compensation is statutorily limited as provided in Government Code § 21221(h). MARTINEZ represents that he has not received any unemployment compensation from any CalPERS Agencies during the 12-month period preceding the effective date of this AGREEMENT. MARTINEZ further represents his CalPERS retirement date became effective prior to the 180-day period preceding the effective date of this AGREEMENT, that he has not received a retirement incentive upon retirement within the meaning of Government Code § 7522.56(g), and that he has attained normal retirement age within the meaning of Government Code § 21220.5.
F. CITY has determined that it is necessary to hire MARTINEZ by virtue of his significant experience in local government as Deputy Police Chief for other agencies.
Attachment 2
2 OPERATIVE PROVISIONS
In consideration of the promises and covenants contained herein, the parties agree as follows:
1. Position and Duties.
1.1 Position. CITY hereby employs MARTINEZ as the Interim Director of Police Services for the CITY to perform the functions and duties of the Director of Police Services as provided under the Coronado Municipal Code section 2.08.110 and to perform such other legally permissible and proper functions and duties as the City Manager shall, from time-to-time, direct or assign. MARTINEZ shall perform these functions and duties in an efficient, competent, and ethical manner and shall devote his best efforts and full-time attention thereto.
1.2 Term. This AGREEMENT shall become effective on January 17, 2024 and MARTINEZ shall commence the performance of his duties as the Interim Director of Police Services on this date contingent upon successful completion of pre-employment requirements (background check, medical evaluation, and psychological examination).
This AGREEMENT shall expire as of the first of the following to occur: (i) upon the employment commencement date of a permanent Director of Police Services employed by CITY; or (ii) upon MARTINEZ working his 960th hour for CITY including hours worked for other CalPERS Agencies during any fiscal year as a retired annuitant; or (iii) upon termination of the AGREEMENT by either MARTINEZ or CITY as provided in Section 4 [Termination] of this AGREEMENT.
1.3 At-Will. MARTINEZ acknowledges that he is an at-will temporary employee of the CITY who shall serve at the will and pleasure of the City Manager at all times during the period of his service hereunder and that his employment may be terminated at any time, for any or no reason, with or without cause as provided in Section 4 [Termination] of this Agreement and/or by operation of California or federal law. Nothing in this AGREEMENT is intended to, or does, confer upon MARTINEZ any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by CITY to terminate his employment, except as is expressly provided in Section 4 [Termination] of this AGREEMENT and/or by operation of California or federal law.
Nothing contained in this AGREEMENT shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of MARTINEZ as provided in Section 4 [Termination]. Nothing in this AGREEMENT shall prevent, limit or otherwise interfere with the right of MARTINEZ to resign at any time from the position with CITY, subject only to the provisions set forth in Section 4 [Termination] of this AGREEMENT.
The terms of the CITY’S personnel rules, policies, procedures, ordinances, resolutions, or Municipal Code (collectively, “Personnel Policies”) shall not apply to MARTINEZ to the extent such Personnel Policies conflict with this AGREEMENT. This AGREEMENT is not intended to limit, in any way, any right that MARTINEZ may have under the Public Safety Officers Procedural Bill of Rights Act, as set forth in California Government Code Sections 3300-3313 (“POBRA”).
Attachment 2
3 1.4 Duties. MARTINEZ shall serve as the Interim Director of Police Services and shall be for the term of this AGREEMENT vested with the powers, duties and responsibilities of the Director of Police Services as set forth in ordinances and resolutions of the CITY, including without limitation, those set forth in the CITY’S Municipal Code and to perform other legally permissible and proper duties and functions as the City Manager may from time-to-time assign. Without additional compensation, MARTINEZ shall provide such other services as are customary and appropriate to the position of Interim Director of Police Services. MARTINEZ shall devote his best efforts and full-time attention to the performance of these duties.
1.5 Hours of Work. MARTINEZ shall devote the time necessary to adequately perform his duties as Interim Director of Police Services. The parties anticipate that MARTINEZ will work up to forty (40) hours per week during normal CITY business hours as well as outside of the normal business hours as appropriate. However, in no event shall MARTINEZ be required or permitted to work in excess of nine hundred sixty (960) hours per fiscal year. The position of Interim Director of Police Services shall be deemed an exempt position under Federal and California wage and hour law.
1.6 Other Activity. In accordance with Government Code Section 1126, during the period of his employment, MARTINEZ shall not accept, without the express prior written consent of the City Manager, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity, whether or not to pecuniary advantage, that is or may be competitive with CITY, that might cause a conflictof-interest with CITY, or that otherwise might interfere with the business or operation of CITY or the satisfactory performance of MARTINEZ's duties as Interim Director of Police Services.
1.7 Reimbursement. CITY shall reimburse MARTINEZ for reasonable and necessary travel, subsistence and other business expenses incurred by MARTINEZ in the performance of his duties. All reimbursements shall be subject to and in accordance with California law and applicable CITY reimbursement policies.
2. Compensation.
2.1 Rate of Pay. For all services performed by the Interim Director of Police Services under this AGREEMENT, CITY shall pay MARTINEZ compensation at the rate of One Hundred and Nine Dollars ($109.00) per hour according to the payroll schedule in place for CITY employees paid bi-weekly subject to the limitations provided below.
MARTINEZ shall submit all itemized requests for payment to the City Manager who shall approve all requests for payment under this AGREEMENT.
2.2 Compliance with CalPERS Requirements. It is the intent of the parties to compensate MARTINEZ only to the extent permitted under Government Code Sections 21221(h) and 7522.56(d) and corresponding CalPERS regulations and policy statements.
The parties acknowledge and agree that the rate of pay set forth above does not exceed the salary limitations established by CalPERS based on the salary as set forth in the CITY’S publicly available salary schedule. The monthly base salary for the position of Attachment 2
4 Director of Police Services as listed on the publicly available pay schedule is Eighteen Thousand Nine Hundred Forty-Three and Seventy-Two Cents ($18,943.72) The Rate of Pay is calculated by taking the monthly base salary of Eighteen Thousand Nine Hundred Forty-Three and Seventy-Two Cents ($18,943.72) and dividing it by 173.333 to equal an hourly rate of One Hundred and Nine Dollars ($109.00) rounded to the nearest dollar.
2.2.1 Recording and Reporting of Hours Worked. MARTINEZ will comply with all applicable CalPERS regulations governing employment after retirement including recording and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CalPERS. Additionally, MARTINEZ shall keep CITY continually apprised of any hours worked by MARTINEZ for other CalPERS Agencies during the term of this AGREEMENT.
2.3 Benefits.
2.3.1 No Benefits. Pursuant to Government Code Sections 21221(h), 21224, and related CalPERS regulations and policy statements, MARTINEZ shall not receive from CITY any benefits CITY commonly provides to its employees including, without limitation, health, dental, or vision insurance coverage, life insurance, employee assistance programs, and similar benefits.
3. Vacation and Leave.
3.1 No Leave. MARTINEZ and CITY agree that MARTINEZ shall not be provided or accrue any personal time off, vacation, sick leave, administrative leave, paid holidays or similar leave benefits.
4. Termination.
4.1 By CITY. This AGREEMENT may be terminated by CITY for any reason after five (5) days' notice in writing to MARTINEZ of such termination. CITY’s only obligation in the event of such termination will be payment to MARTINEZ of all compensation then due and owing as set forth in Section 2.1 [Rate of Pay] up to and including the effective date of termination. However, this AGREEMENT may be terminated immediately if necessitated by changes to CalPERS statutory or regulatory requirements.
4.2 By MARTINEZ. This AGREEMENT may be terminated by MARTINEZ for any reason after thirty (30) days’ notice in writing to CITY of such termination. CITY shall have the option, in its complete discretion, to make MARTINEZ's termination effective at any time prior to the end of such period, provided CITY pays MARTINEZ all compensation as set forth in Section 2.1 [Rate of Pay] then due and owing him through the last day actually worked.
4.3 No Notice for Expiration. Nothing in this Section 4 [Termination] shall be construed to require either party to give advance written notice in order for the AGREEMENT to expire as set forth in Section 1.2 [Term].
Attachment 2
5 4.4 Termination Obligations. MARTINEZ agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to CITY and shall be returned promptly to CITY upon termination of MARTINEZ's employment. MARTINEZ's obligations under this subsection shall survive the termination of his employment and the expiration of this AGREEMENT.
4.5 Benefits upon Termination. All benefits to which MARTINEZ's entitled under this AGREEMENT shall cease upon MARTINEZ's termination in accordance with this Section 4, unless expressly continued either under this AGREEMENT, under any specific written policy or benefit plan applicable to MARTINEZ, or unless otherwise required by law.
5. Conflict Of Interest.
MARTINEZ represents and warrants to CITY that he presently has no interest, and represents that he will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or interfere in any way with performance of his services under this AGREEMENT.
6. General Provisions.
6.1 Recitals. The recitals, inclusive of all facts and representations, are incorporated into this AGREEMENT as if set forth in the Operative Provisions.
6.2 Vehicle Operation. MARTINEZ shall operate any vehicle used in connection with the performance of his duties as Interim Director of Police Services in a safe manner and otherwise in observance of all established traffic safety laws and ordinances and shall maintain a valid California automobile’s driver’s license during the period of employment.
6.3 Proprietary Information. “Proprietary Information” is all information and any idea pertaining in any manner to the business of CITY (or any CITY affiliate), its employees, clients, consultants, or business associates, which was produced by any employee of CITY in the course of his/her employment or otherwise produced or acquired by or on behalf of CITY. All Proprietary Information not generally known outside of CITY’S organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” During his employment by CITY, MARTINEZ shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY and as is or may be necessary to perform his job responsibilities under this AGREEMENT. Following termination, MARTINEZ shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of CITY. MARTINEZ's obligations under this Section shall survive the termination of his employment and the expiration of this AGREEMENT.
6.4 CITY Documents. All data, studies, reports and other documents prepared by MARTINEZ while performing his duties during the term of this AGREEMENT shall be Attachment 2
6 furnished to and become the property of the CITY, without restriction or limitation on their use. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to MARTINEZ in connection with the performance of this AGREEMENT shall be held confidential by MARTINEZ to the extent permitted by applicable law, except as may be required by any governmental agency or court of competent jurisdiction. Such materials shall not be used by MARTINEZ for any purpose other than the performance of his duties. Additionally, no such materials may be disclosed to any person or entity not connected with the performance of services under this AGREEMENT, except as required by (a) law, (b) any governmental agency, (c) subpoena, or (d) an order issued by a court of competent jurisdiction.
6.5 Notices. All notices, requests, demands and other communications under this AGREEMENT shall be in writing and shall be effective upon delivery by hand or email or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to CITY at the address below, and/or at the last known address maintained in MARTINEZ's personnel file. MARTINEZ agrees to notify CITY in writing of any change in his address during his employment with CITY. Notice of change of address shall be effective only when accomplished in accordance with this Section.
City’s Notice Address:
City of Coronado
1825 Strand Way
Coronado, CA 92118
Attn: Mayor and City Council
Interim Director of Police Services’ Address:
Address on file in MARTINEZ’s personnel file
6.6 Indemnification. Subject to, in accordance with, and to the extent provided by the California Tort Claims Act [Government Code Section 810 et seq.] CITY will indemnify, defend, and hold MARTINEZ harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any act or omission occurring during MARTINEZ's tenure as Interim Director of Police Services.
6.7 AB1344. Assembly Bill 1344, which was subsequently enacted as Government Code Sections 53243 - 53243.4, sought to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. These statutes also require that contracts between local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency for the following forms of payment: (i) paid leave salary; (ii) criminal defense costs; (iii) cash settlement payments; and (iv) any non-contractual settlement payments.
Accordingly, the Parties agree that it is their mutual intent to fully comply with these Government Code sections and all other applicable law as it exists as of the date of Attachment 2
7 execution of this AGREEMENT and as such laws may be amended from time to time thereafter. Specifically, the following Government Code sections are called out and hereby incorporated by this AGREEMENT:
§ 53243. Reimbursement of paid leave salary required upon conviction of crime involving office or position.
§ 53243.1. Reimbursement of legal criminal defense upon conviction of crime involving office or position.
§ 53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position.
§ 53243.3. Reimbursement of noncontractual payments upon conviction or crime involving office or position.
§ 53243.4. “Abuse of office or position” defined.
6.8 Effect of Conviction on Termination. If MARTINEZ is convicted of a crime involving an abuse of his office or position, as defined in Government Code section 53243.4, the following restrictions will apply: (i) any paid leave given to MARTINEZ pending an investigation shall be fully reimbursed to CITY, (ii) any funds expended by CITY for the legal MARTINEZ defense of MARTINEZ shall be fully reimbursed to CITY, (iii) any cash settlement paid to MARTINEZ shall be fully reimbursed. Upon conviction of a covered felony under Government Code sections 7522.72 or 7522.74, MARTINEZ may forfeit the benefits in accordance with those sections.
6.9 Independent Legal Advice. The CITY and MARTINEZ represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this AGREEMENT, or had the opportunity to do so, and the CITY and MARTINEZ 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.
6.10 Integration. This AGREEMENT is intended to be the final, complete, and exclusive statement of the terms of MARTINEZ's employment by CITY. This AGREEMENT supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of MARTINEZ's and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of CITY, now or in the future, apply to MARTINEZ and are inconsistent with the terms of this AGREEMENT, the provisions of this AGREEMENT shall control.
6.11 Amendments. This AGREEMENT may not be amended except in a written document signed by MARTINEZ approved by the City Manager.
6.12 Waiver. Failure to exercise any right under this AGREEMENT shall not constitute a waiver of such right.
Attachment 2
8 6.13 Assignment. MARTINEZ shall not assign any rights or obligations under this AGREEMENT. CITY may, upon prior written notice to MARTINEZ , assign its rights and obligations hereunder.
6.14 Severability. If a court or arbitrator holds any provision of this AGREEMENT to be invalid, unenforceable, or void, the remainder of this AGREEMENT shall remain in full force and effect.
6.15 Governing Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, with venue proper only in San Diego, State of California.
6.16 Interpretation. This AGREEMENT shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this AGREEMENT shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this AGREEMENT. Captions are used for reference purposes only and should be ignored in the interpretation of the AGREEMENT. This AGREEMENT may be altered, amended or modified only by an instrument in writing, executed by the parties to this AGREEMENT and by no other means. Each party waives their future right to claim, contest or assert that this AGREEMENT was modified, cancelled superseded or changed by any oral agreement, course of conduct, waiver or estoppel.
6.17 Acknowledgment. MARTINEZ acknowledges that he has had the opportunity to consult legal counsel in regard to this AGREEMENT, that he has read and understands this AGREEMENT, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained in this AGREEMENT.
IN WITNESS WHEREOF, CITY has caused this AGREEMENT to be signed and executed on its behalf by its City Manager and MARTINEZ has signed and executed this AGREEMENT, as of the date first indicated above.
INTERIM DIRECTOR OF POLICE SERVICES CITY OF CORONADO
____________________________ __________________________ Richard “Rick” Martinez Tina Friend, City Manager
APPROVED AS TO FORM:
___________________________
Johanna N. Canlas
City Attorney