SECOND AMENDED AND RESTATED AGREEMENT FOR EMPLOYMENT OF CITY MANAGER This Agreement for Employment of City Manager is amended and restated and entered into this 23th day of August 2022 and effective as of August 15, 2022, by and between the City of Cotati, a California municipal corporation (the “City”), and Damien O’Bid (“Mr. O’Bid” or “City Manager”). In consideration for the mutual covenants contained herein, the parties hereto agree as follows:
EMPLOYMENT
Appointment of City Manager.
The City Council of the City appointed Mr. O’Bid to the position of City Manager effective April 15, 2015 for an initial term of three (3) years, to perform the functions and duties specified for the City Manager under the laws of the State of California, the Municipal Code of the City, and the Ordinances and Resolutions of the City, and to perform such other duties and functions as the City Council shall from time to time assign.
The original agreement was extended on April 10, 2018 until July 9, 2018; and On July 10, 2018, the City Council extended the initial three-year agreement until July 9, 2021.
On August 24, 2021, the City Council authorized an Amended and Restated Employment Agreement that extended the employment term to July 9, 2026.
In response to the extraordinary inflationary pressures, the City Council finds that a 1% COLA increase is warranted, as well as an increase in life insurance from $100,000 to $150,000, and a modified longevity structure; and Mr. O’Bid is an at will employee and in his capacity as City Manager shall serve at the pleasure of the City Council.
By this Agreement, the parties set forth the terms and conditions that apply during Mr. O’Bid’s employment as City Manager.
City Council Commitments.
The City Council shall deal with the City Manager and all subordinate City employees, officers, contractors and consultants in accordance with Cotati Municipal Code Section 2.12.200.
Term of Agreement.
Mr. O’Bid’s appointment to the position of City Manager is effective through July 8, 2026. If at the end of the term the parties do not extend the Agreement or enter into a successor agreement, Mr. O’Bid’s employment will terminate as described in Section 1.D.5.below.
Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City to terminate this Agreement at any time, or the right of Mr. O’Bid to resign at any time from this position, as set forth below.
The term may be extended or revised by the mutual written agreement of the parties.
Termination of Agreement and Employment with the City.
Mr. O’Bid is an at-will employee who shall serve at the pleasure of the City Council. The City Council may terminate the City Manager’s employment at any time, subject to any restrictions in the Cotati Municipal Code, with or without cause. Nothing in this Agreement is intended to, or does, confer upon Mr. O’Bid any right to any property interest in continued employment or any due process rights of any kind.
Notwithstanding the provisions of Section 1.C, the City Council may terminate this Agreement, upon a minimum of three (3) affirmative votes, with or without cause upon ten (10) working days’ written notice.
Mr. O’Bid may terminate this Agreement by giving the City thirty (30) days’ written notice in advance of termination, at the end of which period this Agreement will terminate, unless the City and Mr. O’Bid otherwise agree.
Upon termination of this Agreement, whether voluntary or otherwise, the City Manager shall be entitled to payment of all accumulated leave, minus applicable deductions, at his highest full salary earned during his tenure with the City.
Mr. O’Bid does not possess any right of reinstatement to any of his former positions at the City. Thus, his employment with the City shall be terminated upon the effective date of the termination of this Agreement.
POWERS, DUTIES, AND RESPONSIBILITIES
Employment Duties.
Mr. O’Bid shall perform the functions of City Manager of the City and shall be vested with the powers, duties, and responsibilities set forth in the City’s Municipal Code, the terms of which are incorporated by reference herein. In addition, Mr. O’Bid shall perform such other duties as may be assigned by the City Council, and which are not inconsistent with the position of City Manager.
Hours of Work.
Mr. O’Bid shall be an exempt employee under the Fair Labor Standards Act. The City Manager shall establish an appropriate work schedule and is expected to devote necessary time during and outside of normal business hours to the business of the City.
Performance Evaluation.
Thirty (30) days after the annual City Council goal-setting, goals for the City Manager will be set. The City Council shall evaluate Mr. O’Bid’s performance on a regular basis, based on agreed upon goals, at such times as the Council may request. Mr. O’Bid shall receive at least one performance evaluation annually, on a mutually agreeable date or dates. Pursuant to Cotati Municipal Code Section 2.12.60, the City Manager shall receive such compensation as the City Council shall from time to time determine.
Evaluations of the City Manager shall only be discussed in compliance with the Ralph M. Brown Act and other applicable law, if any.
COMPENSATION OF CITY MANAGER
Salary.
Mr. O’Bid shall receive a Base Salary of $94.11 per hour, beginning on July 5, 2021. The salary will be paid at the same time and in the same manner as for non-safety Department Heads.
Effective the first full pay period following July 1, 2022, and each July 1 thereafter through July 1, 2025, the City Manager’s Base Salary shall be increased by two and one-half percent (2.5%). Any other increases or adjustments to Mr. O’Bid’s Base Salary shall be approved by the City Council by amendment to this Agreement.
Effective the first day of the pay period including August 23, 2022, the salary schedule for the City Manager position will be increased by one percent (1%). This is in addition to the two and one-half percent (2.5%) cost of living adjustment effective the first pay period in July 2022, in accordance with this agreement.
The parties acknowledge and agree that this additional cost of living increase is on a one-time basis only, and shall not constitute, nor be considered as precedent-setting, nor be relied upon to assert a past practice supporting future payments.
The City shall not reduce the Base Salary or any other financial benefit of the Mr. O’Bid in a percentage that is greater than the average reduction of non-safety Department Heads.
Benefits.
Longevity Pay: After ten (10) consecutive years of full-time service (20,800 hours) in paid status with the City, the City Manager shall receive longevity pay in the amount of 9% of base salary.
Group Medical Insurance: The City offers group medical insurance. The available plan options are determined by the City, with the plan selected by the employee. The City will pay one hundred percent (100%) of the cost of group medical insurance premiums for the City Manager.
Dental Insurance: The City offers dental insurance. The policy shall be determined by the City. The City will pay one hundred percent (100%) of the premium for the City Manager.
Vision Insurance: The City offers vision insurance. The policy shall be determined by the City. The City will pay one hundred percent (100%) of the premium for the City Manager.
Life Insurance: The City shall provide life insurance coverage in the amount of $100,000 for the City Manager, policy to be determined by the City. Effective the first full pay period in September 2022, the City shall provide life insurance coverage in the amount of one-hundred fifty thousand dollars ($150,000).
Flexible Spending Account: The City offers an IRS 125 plan Flexible Spending Account (FSA). The plan allows the City Manager to pay medical and childcare expense with pre-tax dollars in accordance with IRS regulations. Any pre-tax dollars withheld, but not spent, during the plan’s fiscal year will be forfeited to the City except as precluded by federal law.
AFLAC: The City makes available to the City Manager a group of supplemental insurance policies offered by AFLAC. The policy premiums are paid by the employees through payroll deduction.
Employee Assistance Program: The City provides an Employee Assistance Program for all employees, including the City Manager. The City shall pay only the percentage of the premium commensurate with the percentage of regularly scheduled hours worked.
Short Term Disability: This plan shall consist of City-paid coverage by which an employee utilizes all accrued time off, such as leave bank, vacation, sick leave, compensatory time, and personal holidays. When such time off has been exhausted by the employee, the City will continue to compensate the employee at fifty percent (50%) of his/her current base salary through the sixtieth (60th) consecutive day of disability.
Long Term Disability: The City offers a Long Term Disability Insurance (LTD) for the City Manager. The extent of benefits will be dependent on provider; however, minimum benefits are to be:
Coverage beginning on the 61st day of disability
Disability benefit received will be 60% of employee base salary with a cap of $5,000 per month; and Benefits will be available for the length of disability until retirement age.
Retiree Medical Benefits: Retired full-time permanent employees with fifteen (15) years or more of full-time permanent service and their spouses may participate, at their option, in a City-provided medical, dental and vision plan after the official date of retirement until the participant becomes eligible for Social Security Insurance (SSI) or Medicare, whichever is sooner. The retiree is required to pay one hundred percent (100%) of the applicable premium for the retiree and dependent(s). Eligibility will be determined in accordance with REMIF rules and regulations. Starting the 2010-11 fiscal year, this includes a requirement that employees be enrolled in a REMIF member entity’s health program at retirement, and maintain enrollment in a REMIF member entity’s health plan for a period of at least five (5) consecutive years immediately prior to retirement.
Public Employees’ Retirement System (PERS): The City of Cotati is a member of the Public Employees’ Retirement System (CalPERS). The City Manager shall contribute the normal PERS employee share of 8.0% plus 2.371% of the City share (10.371% total). The City Manager will receive the PERS Section 21574 Fourth Level of 1959 Survivor benefits.
The City has determined that Mr. O’Bid is a “current” or “classic” employee and not a “new” employee as those terms are used and defined in the California Pension Reform Act (Government Code Section 7522 et seq.), effective January 1, 2013, and subsequent CalPERS implementing regulations; provided, however, that City’s determination is subject to CalPERS review and concurrence.
Holiday Pay: The City Manager shall receive twelve and one half (12 ½) days of paid holiday leave for each year, subject to the City’s Personnel Rules.
Administrative Leave: The City Manager shall receive eighty (80) hours of Administrative Leave at the start of each fiscal year. Administrative Leave time does not accrue, and may not be converted to service time, banked or cashed out. Administrative leave must be used during the fiscal year in which it is received, or it will be lost. The City’s intent is that Administrative Leave not be subject to the provisions of California Labor Code §227.3.
Auto Allowance: The City Manager shall receive four hundred dollars ($400) per month in auto allowance.
Sick Leave Accrual: The City Manager shall accrue eight 8 hours of sick leave per month. Sick leave accrual and usage shall be subject to the City’s Personnel Rules and cannot be cashed out during employment or at the time of separation.
Vacation Leave: The City Manager’s vacation accrual will decrease to 18 hours per month, beginning at 0 hours with a maximum accrual cap of 432 hours for new leave accrued on or after July 9, 2018. Any pre-existing leave bank balances will cease to accrue new hours. Leave may be cashed out a maximum of two times per calendar year. The City Manager must be in pay status or on an approved leave to exercise this option. Upon reaching the applicable Leave accrual cap, the City Manager will cease to accrue Leave until such time that he reduce accrued Leave hours below the cap.
The City Manager must choose by the last business day of each year to elect or opt out of pay in lieu of vacation time off for the following year by using the Request for Pay in Lieu of Vacation Leave form. Once the request has been submitted, the City Manager may elect to request the elected cash-out at any point during the subsequent year up to November 15 of each year. If the City Manager has not initiated the cash-out of the hours by November 15, the remaining hours in the irrevocable election will be automatically paid to the City Manager in the last paycheck of November.
If the City Manager did not elect pay in lieu of vacation time off by the last business day of the prior year, the City Manager will not be able to cash out any vacation in the following calendar year, except as provided below. All vacation cash outs will be taxed at the supplemental tax rate in accordance with IRS code. If insufficient vacation hours exist to meet the annual pay in lieu election, only the remaining available elected vacation hours will be paid out.
In the event the City Manager is faced with an “unforeseeable emergency” as described below, the City Manager may be eligible to receive a hardship cash-out of vacation leave, without electing the cash-out in the prior year as required above. In order to receive a hardship cash-out, the City Manager must establish and substantiate that he or she has suffered a severe financial hardship resulting from an illness or accident suffered by the City Manager or City Manger’s dependent, a loss of his or her property due to casualty or severe weather or other similar extraordinary and unforeseeable circumstance beyond the control of the City Manager. An “unforeseeable emergency” does not include situations such as the need to send a child to college, to purchase a home, funeral expenses for a non-dependent adult child, debt not incurred due to any extraordinary or unforeseeable circumstances beyond the City Manager’s control.
The City Manager may only be eligible to receive a financial hardship cash-out of vacation leave to the extent the unforeseeable emergency is not or may not be relieved through insurance reimbursement or assets available to the City Manager that would not cause a severe financial hardship.
The Administrative Services Director shall provide recommendations to the Chief of Police regarding eligibility for and distribution of leave hours from an employee’s available vacation leave balance based on this policy. The Chief of Police shall make the final determination on all matters related to the City’s vacation cash-out for financial hardships.
To apply for a hardship cash-out of vacation leave, the City Manager shall complete the Vacation Cash-out Due to an Unforeseeable Emergency Application available from the Human Resources Department.
Death: In the event that the Mr. O’Bid dies while employed by the City under this Agreement, Mr. O’Bid’s beneficiaries or those entitled to his estate, shall be entitled to his earned salary and any in-lieu payments for accrued benefits, including compensation for the value of all accrued leave balances.
Reimbursement of Expenses.
Pursuant to Cotati Municipal Code Section 2.12.60, Mr. O’Bid shall be reimbursed for all actual and necessary expenses incurred by him in the performance of his official duties as City Manager. Such incurred expenses shall be submitted according to City’s normal expense reimbursement procedures, or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting the City’s normal requirements and must be submitted within time limits established by City.
Without the prior approval of the City Council, the City Manager shall not incur business expenses in excess of the amount annually budgeted and approved by the City Council for such expenditures.
SEVERANCE
In the event City terminates City Manager’s employment without cause, Employee shall be entitled to severance pay of a lump sum payment equal to six (6) months base salary; provided, however, that under no circumstances shall Mr. O’Bid be entitled to severance in an amount greater than for the amount of time remaining in the term of this Agreement. For example, if the City terminates employment without cause with three (3) months remaining in the term of this Agreement, Mr. O’Bid is only entitled to three (3) months of severance pay. Furthermore, Mr. O’Bid is not entitled to any severance if his employment ends because the parties do not renew this Agreement. The severance under this Agreement shall be subject to the restrictions set forth in Government Code section 53260. Said payment of severance pay shall be conditioned upon Mr. O’Bid executing a waiver and release agreement forever releasing and waiving any and all claims against the City in a form acceptable to the City. Mr. O’Bid shall receive the severance payment in a lump sum payment minus all applicable deductions within fifteen (15) business days after execution of the waiver and release agreement. Mr. O’Bid shall not receive any severance payments if he resigns, if he is terminated for cause, or if a waiver and release agreement is not executed by Mr. O’Bid.
This provision does not confer any property rights on Mr. O’Bid, as he remains an at- will employee. The phrase “termination for cause” only pertains to Mr. O’Bid’s eligibility for severance as described in this Section. A “termination for cause” for purposes of severance may include, but shall not be limited to, the following:
Violation of any written policies or procedures;
Theft of City property;
Insubordination;
Conviction of a felony or misdemeanor relating to employee’s fitness to perform assigned duties; Unauthorized absence from employment;
Improper use of City funds;
Unauthorized use of City property;
Willful misconduct or malfeasance; and
Any act of moral turpitude or dishonesty.
ABUSE OF OFFICE
Government Code Sections 53243, 53243.1, 53243.2, and 53243.3 are incorporated by reference as if fully set forth herein. Furthermore, pursuant to Government Code Section 53243.2, any cash settlement related to the termination of this Agreement received by Mr. O’Bid from the City shall be fully reimbursed to City if Mr. O’Bid is convicted of a crime involving an abuse of his office or position as defined in Government Code Section 53243.4.
OUTSIDE ACTIVITIES
The employment provided for by this Agreement shall be Mr. O’Bid’s sole employment, and Mr. O’Bid shall not engage in any activities in conflict with his responsibilities as City Manager. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to the City and the community, Mr. O’Bid may elect, with the prior written approval of the Mayor, and written notification to the full Council, to accept limited teaching, consulting or other business opportunities with the understanding that such arrangements shall not constitute interference with nor a conflict of interest with his responsibilities under this Agreement.
INDEMNIFICATION
The City shall provide for the defense of the City Manager in any action or proceeding alleging an act or omission within the scope of his employment in accordance with California Government Code Sections 825 and 995 et seq., and other applicable law. Notwithstanding anything to the contrary in this Agreement, in accordance with California Government Code Section 825, subdivision (a), the City reserves the right to not pay any judgment, compromise or settlement subject to that section until it is established that the injury arose out of an act or omission occurring within the scope of the City Manager’s employment pursuant to this Agreement. Further, notwithstanding anything to the contrary in this Agreement, the City reserves the right to refuse to provide for the defense of the City Manager for the reasons set forth in California Government Code Section 995.2 or other applicable provisions of law. Consistent with the California Government Code, City shall defend, hold harmless, and indemnify City Manager using legal counsel of City’s choosing, against expense or legal liability for acts or omissions by City Manager occurring within the course and scope of City Manager’s employment under this Agreement; provided that any such defense shall be in accordance with the provisions of Government Code Section 995 et seq. regarding defense of public employees and any such indemnification shall be in accordance with the provisions of Government Code Section 825 et seq. regarding indemnification of public employees. Any City funds provided for the legal defense of the City Manager shall be fully reimbursed by the City Manager in accordance with California Government Code section 53243.1 if he is convicted of a crime involving an abuse of his office or position as defined in California Government Code section 53243.4.
MISCELLANEOUS PROVISIONS
Entire Agreement. The text herein shall constitute the sole and entire Agreement between the parties. The City and Mr. O’Bid acknowledge that there are no representations, agreements, arrangements or understandings, whether written or oral, between the parties relating to the subject matter of this Agreement which are not fully set forth in this Agreement. Any modification or change in this Agreement shall not be binding on either party unless such change or modification is in writing and signed by both parties.
Communications upon City Manager’s Separation. In the event the City terminates the City Manager for any reason or no reason, the City and the City Manager agree that Mr. O’Bid and the City will prepare a mutually agreeable joint press release or statement concerning the City Manager’s termination, the substance of which may be verbally repeated by either party in response to any inquiry regarding the termination.
Conflict with Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to the City Manager in the same manner as applied to other non-safety Department Heads; provided, however, that in the event of a conflict between the provisions of this Agreement and the Cotati Municipal Code, the Municipal Code shall prevail over this Agreement.
Effect of Waiver. The failure of either party to insist upon 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 power for all or any other times.
Severability. In the event that any term of this Agreement is finally held or determined to be illegal or void by a court having jurisdiction over the City and Mr. O’Bid, the remainder of this Agreement shall remain in full force and effect unless the term or terms held to be illegal or void are wholly inseparable from the remaining portions of the Agreement.
Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California. In the event that either party to this Agreement brings a lawsuit to enforce or interpret any provisions of this Agreement, the prevailing party shall be entitled to recover their reasonable attorneys’ fees and related expenses and costs.
Parity in Construing Agreement. Both the City and Mr. O’Bid have had the opportunity to participate in the drafting of this Agreement. The parties agree that any ambiguity in this Agreement shall not be construed or interpreted against, or in favor of either party.
Provisions that Survive Termination. Sections 4 (Severance) and 7 (Indemnification) shall survive termination of employment and termination of this Agreement.
Notices. Notices pursuant to this Agreement shall be in writing given by deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows:
City of Cotati
201 West Sierra Avenue
Cotati, CA 94931-4217 Attn: Deputy City Clerk
City Manager
Damien O’Bid
Address on file at City
Alternatively, notices required pursuant to his Agreement may be personally served in the same manner as is applicable to civil judicial process. Notice shall be deemed given as of the date of personal service or as of the third day following the date of deposit of such written notice in the course of transmission in the United States Postal Service, with postage fully prepaid.
IN WITNESS WHEREOF, the City has caused this Agreement to be signed and executed in its behalf by its Mayor and be duly attested to by its City Clerk, and the City Manager has signed and executed this Agreement, both in duplicate, as of the day and year first written above. ________________________
Mark Landman
Mayor
________________________
Damien O’Bid
ATTEST:
________________________
Kevin Patterson, Deputy City Clerk
APPROVED AS TO FORM:
________________________
John Bakker
City Attorney
3810972.4
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Second Amended and Restated Agreement for Employment of City Manager Damien O’Bid
August 23, 2022