Agenda packet — Duarte City Council, July 9, 2024 (part 2 of 2)

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agent, or representative of the City, or member of the general public, who in good faith reports, discloses, reveals, or divulges to any appropriate authority, any violation of law, or any facts or information pertaining thereto; and
10) willful disclosure of closed session confidential communications, attorney - client confidential communications, or other information whose confidentiality is privileged or protected by law.

Apart from such grounds for removal as are otherwise defined under state law, the Duarte Municipal Code, or this Agreement, the determination ofwhat constitutes appropriate " cause" for termination of City Manager shall be within the sole discretion of the City Council.

E. Nothing in this Agreement shall prohibit City from imposing discipline less than termination upon City Manager, including written reprimands, or suspensions. Such discipline may be imposed by City in its discretion.

F. In the absence of grounds for imposing discipline on City Manager, in the event:
1) City at any time during the term of this Agreement reduces the salary or other financial benefits of City Manager in a greater percentage than an applicable across- the- board reduction for all general full- time employees ofCity; or (2) City refuses, following written notice by City Manager to the City Attorney specifying a breach of this Employment Agreement, to remedy or undertake to remedy any such breach, then City Manager may, at his option, elect to be deemed to be terminated" as of that time, and shall be entitled to the severance pay from City.

G. In the event City Manager voluntarily resigns his position with City before expiration of the above -referenced term ofhis employment, then City Manager shall give City no less than sixty (60) days' notice in advance, unless the parties otherwise agree, and City Manager shall not be entitled to any severance pay from City.

SECTION 5. DISABILITY.

If City Manager is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity, or health for a period of six ( 6) successive weeks beyond any accrued sick leave to which City Manager is entitled, or for the legal duration of the Family and Medical Leave Act (whichever is greater), City shall have the option to terminate this Agreement. Termination pursuant to this Section will not subject the City to payment of severance pay. However, City Manager shall be compensated for any accrued vacation, holidays, and other accrued benefits on the same basis as any other employee of the City pursuant to the Personnel Rules.

SECTION 6. SALARY AND BENEFITS.

A. Salary.

City agrees to pay City Manager for his services rendered pursuant hereto an annual base salary of Two Hundred Eighteen Thousand Four Hundred and Eighty -Two Dollars ($ 218, 42. 00) Base Salary"), effective on June 1, 2023 (" Base Salary Effective Date"), payable in equal installments at the same time as other employees of the City are paid. In addition to Base Salary, 159/ 012225- 0101
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City Manager shall be entitled to any future cost of living (" COLA") increases after the Effective Date that are provided to other general full- time employees ofthe City. City agrees to review Base Salary and other benefits of City Manager at the time of an annual performance evaluation which shall be initiated in March or April for each year this Agreement is in effect. It shall be the responsibility ofCity Manager to advise City each year of the necessity for the annual performance review, and to schedule same, by closed session with the City Council, or other appropriate procedure. Notwithstanding the necessity for at least one annual performance review, City Council may perform other performance reviews of City Manager' sperformance, at any time. City Council may implement adjustments to salary, other benefits, or both, during the period ofany performance review, provided, however, that consistent with Government Code section 54956, such compensation or benefits may only be modified at a regularly scheduled meeting of the City Council.

B. Benefits.

In addition to the salary referred to in Paragraph 6. A above, City Manager shall receive from City the following benefits:
a) the same package( s) of health/ medical insurance benefits and dental and vision allowances as available to all other full- time City employees; b) the same package( s) of life insurance and disability insurance as available to all other full- time City employees;
c) participation in PERS in the same manner and to the same extent as available to all other full- time City employees;
d) use of a City -provided automobile until December 31, 2023, then an automobile expense reimbursement of Five Hundred Dollars ($ 500. 00) each month thereafter beginning January 1, 2024;
e) provision of a City —owned cellular phone, data plan, tablet, and additional similar communications and computing equipment as deemed appropriate by City Council excluding desktop computer equipment for use outside City Hall); f) paid membership in the International City/ounty Management Association ICMA); and the California City Management Foundation ( CCMF). g) paid travel and meeting attendance for City Manager to professional groups and associations related to the City Manager position and industry -related topics, as may be approved by the City Council as part of the annual City budget or subsequent appropriations; provided, however, that any out-f- state business travel or other reimbursed travel requested by City Manager for other members of City staff at the same event for which City Manager receives reimbursed travel must be approved in advance by the City Council; and h) vacation of up to one hundred twenty ( 120) hours of paid vacation time annually, which shall accrue all one hundred twenty ( 120) hours on the anniversary date of the Effective Date and annually thereafter. Not more than eighty ( 80) hours of vacation may be taken 159/ 012225- 0101
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consecutively by City Manager without the prior approval of the City Council. Carryover and accrual of vacation time shall be subject to the following provisions: City Manager shall have the option, not later than thirty ( 30) days prior to end of each fiscal year ending June 30, to provide notice to the City Council that they City Manager elects to either ( i) be paid for any unused vacation time existing as ofthe end ofthat fiscal year just ended, or (ii) carryover to the next fiscal year that began that July 1 such unused vacation time; provided, however, that in no event shall City Manager be permitted to carry over more than three hundred and sixty ( 360) hours of unused vacation time for a given year, or cumulatively. In addition, City Manager shall not be permitted to have or accumulate at any time more than three hundred and sixty ( 360) hours of unused vacation time, regardless of the actual number of hours of unused vacation time. Unused vacation time as defined and limited by the foregoing provisions shall be paid to City Manager at the time of expiration or termination of this Agreement, in addition to such severance payment to which City Manager is entitled to under this Agreement, if any.

SECTION 7. HOURS OF WORK.

City Manager shall use his best faith efforts to respond timely, after normal business hours, if necessary, to any exigent situation or circumstance that may arise during such interim period of unavailability. In addition to working normal business hours, it is recognized that City Manager must devote time outside the normal office hours to business of the City. In consideration for these obligations, City Manager shall have sixty (60) hours annually ofAdministrative Time Off. Thirty 30) of such hours shall accrue upon the Effective Date, and thirty ( 30) additional hours shall accrue six ( 6) months after the Effective Date. Sixty ( 60) additional hours shall accrue each anniversary of the Effective Date thereafter. Administrative Time Off shall not carryover year to year, and will not be paid upon termination or separation of City Manager from employment, but instead any unused Administrative Time Off at the time of termination or other separation will be forfeited.

SECTION 8. OTHER TERMS AND CONDITIONS OF EMPLOYMENT.

A. The City Council, in consultation with the City Manager, shall fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of City Manager, provided such terms and conditions are not inconsistent or in conflict with the provisions of this Agreement, the Duarte Municipal Code or any applicable state or federal law.

B. All regulations and rules of the City relating to vacation and sick leave, retirement and pension system contributions, holidays and other fringe benefits and working conditions as they now exist or hereafter may be amended, shall also apply to City Manager as they would to other general full- time employees of City, in addition to the benefits specifically set forth herein for the benefit of City Manager.

SECTION 9. SURETY BOND.

In accordance with Municipal Code Section 2. 12. 040, it is mutually understood and agreed that City Manager will file with the City Council, prior June 1, 2023, a corporate surety bond to be approved by the City Council to secure the faithful performance of the duties imposed upon 159/ 012225- 0101
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City Manager as City Manager. The amount of the surety bond required herein shall be One Million Dollars ($ 1, 000,00. 0). Said bond shall be paid for by the City as provided in Municipal Code Section 2. 12. 040. Alternatively, this requirement may be met by the City securing no less than One Million Dollars ($ 1, 000,00. 0) of Government Crime insurance, which covers the activities of the City Manager.

SECTION 10. ARBITRATION.

A. Dispute Resolution and Binding Arbitration.

City Manager and City agree that any dispute that arises out of or relates to City Manager' s employment with City, including but not limited to any dispute that concerns the validity, enforceability, or breach of this Agreement, or any dispute against any present or former officer, director, employee, agent, attorney, or insurer ofthe City, shall be submitted to binding arbitration.

City Manager represents and warrants to City that his agreement to submit any disputes hereunder to binding arbitration is voluntary, and City Manager acknowledges that such arbitration has not been required by City as a condition of employment. In this regard, City Manager understands and knowingly waives any contrary provision or protection under California Labor Code section 432. 6.

City Manager and City agree that any claim arising hereunder shall be brought in the individual capacity of the City Manager or City, and not as a collective or representative claim on behalf of any person or class. Nothing in this section shall prevent City Manager from filing or maintaining a charge with the United States Equal Employment Opportunity commission or the National Labor Relations Board, from making a workers' compensation claim, or from seeking unemployment benefits. Disputes that may not be subject to pre -dispute arbitration agreement by law are excluded from this Agreement. City shall be responsible for payment of the costs of the services of the arbitrator. City Manager will not be subject to any retaliation or discrimination if City Manager seeks to challenge this arbitration provision or participate in a class or collective action. The arbitration shall take place in Los Angeles County, California, and both City and City Manager agree to submit to the jurisdiction of the arbitrator selected in accordance with rules and procedures as they shall mutually agree, or in the absence of such agreement, under the arbitration rules of JAMS. Except as to the right to a hearing under Duarte Municipal Code section 2. 12. 110( b), City Manager and City agree that this arbitration procedure will be the exclusive means of redress for any disputes relating to or arising from City Manager' semployment with City, including disputes over rights provided by federal, state, or local statutes, regulations, ordinances, and common law, including all laws that prohibit discrimination based on any protected classification. The parties each expressly waive the right to a jury trial, and agree that the arbitrator' saward shall be final and binding on the parties, provided that any award shall be reviewable by a court of law to the fullest extent allowed by law, including for any error of law by the arbitrator. The arbitrator shall have discretion to award monetary and other damages, or to award no damages, and to fashion any other reliefthe arbitrator deems appropriate, but only to the extent consistent with law. The parties expressly agree that each party shall bear its own costs and attorneys' fees incurred in bringing or defending an action under this Section, to the fullest extent allowed by law at the time of the arbitration. By their initials below, each signing party acknowledges that it understands it is waiving its right to trial by jury of any issues arising under this Agreement, and is knowingly and voluntarily waiving them:

City Initials: City Manager Initials:
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c
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SECTION 11. NOTICES.

Notices pursuant to this Agreement shall be given by: ( 1) email with verification of delivery; (2) personal delivery; (3) overnight delivery service with confirmation; or (4) deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows:

CITY:
with copy to:

CITY OF DUARTE
1600 Huntington Drive
Duarte, CA 91010
Attn: City Clerk
email: ujurlre r ; accessduarte

RUTAN & TUCKER, LLP
18575 Jamboree Rd., FL
Irvine, CA 92612
Attn: Thai Viet Phan, Esq.
email: tphrrn rutan. coin,
CITY MANAGER: BRIAN VILLALOBOS
655 Sierra Meadow Drive
Sierra Madre, CA 91024
email: bcvillalglasd. org
Notice shall be deemed given as of the date of personal, overnight delivery, email. or facsimile service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service.

SECTION 12. GENERAL PROVISIONS.

A. This Agreement shall constitute the entire agreement between the parties. No prior oral or written communications are incorporated herein.

B. This Agreement shall be binding upon and inure to the benefit of the heirs at 1aa and executors of City Manager.

C. This Agreement may be signed in counterparts with signature pages transmitted by email, facsimile, personal delivery, or overnight delivery, all of which will be treated as originals.

D. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall remain in full force and effect.

E. No officer, official, City manager, agent, or representative of the City shall be personally liable to City Manager in the event of any default or breach by the City of this Agreement or for any amount which may become due to City Manager under this Agreement or for breach by City of any of the terms of this Agreement. 159/ 012225- 0101
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F. Governing Law; Remedies; Attorneys' Fees/ Litigation Matters; Waivers. 1) The internal laws of the State of California, without regard to principles of conflicts oflaws, shall govern the interpretation ofthis Agreement. 2) In addition to any other rights or remedies and consistent with the arbitration clauses applicable hereunder, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.

Notwithstanding anything in this Agreement to the contrary, in no event shall City Manager be entitled to economic or consequential damages or to punitive damages. 3) Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
4) Waivers of the provisions of this Agreement by any party hereto shall not be effective unless in writing.

G. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason ofthe authorship ofthis Agreement or any other rule of construction which might otherwise apply. This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, including but not limited to any recruitment brochures or materials, are merged into this Agreement and shall be of no further force or effect.

H. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent ofthe parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

I. Amendment; Modification. This Agreement may be amended or modified only by a written instrument approved as to form by the City Attorney and signed by both parties after approval of same by a majority of the members of the City Council voting in open session at regular, adjourned regular, or special meeting ofthe City Council.

J. Time for Approval. Once this Agreement has been signed by City Manager and delivered to the Mayor, it shall thereafter be null and void unless approved by a majority of the 159/ 012225- 0101
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members of the City Council voting in open session at regular, adjourned regular, or special meeting of the City Council, not later than June 13, 2023.

IN WITNESS WHEREOF, the City of Duarte has caused this Agreement to be signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and the City Manager has signed and executed this Agreement, both in duplicate, to become effective as ofthe Effective Date.

CITY:

CITY OF DUARTE
ATTEST:

Annette Juarez, "" Clerk
City of Duarte
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
Th let Phan, City Attorney
City of Duarte
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CITY MANAGER:

C
BRIAN VILLALC OS, an individual

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AMENDMENT NO. 1 TO CITY OF DUARTE CITY MANAGER

EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO CITY OF DUARTE CITY MANAGER EMPLOYMENT AGREEMENT ( the " Amendment") is made and entered as of June 25, 2024 (" Effective Date"), by and between the CITY OF DUARTE, a public body and general law city of the State of California ( the " City"), and BRIAN VILLALOBOS, an individual (the " City Manager"), for the purpose of amending the written " City of Duarte City Manager Employment Agreement" entered into between City and City Manager as of June 1, 2023 (" Agreement"):

SECTION 1. TERM
Subsection A of "Section 2. Term of the Agreement " is amended to read:

A. The term of this Agreement shall be from July 1, 2023, (the " Effective Date"), through and including August 30, 2024, unless earlier terminated as provided here. Thereafter, the parties may renew the Agreement pursuant to their mutual agreement.

SECTION 2. COST OF LIVING ADJUSTMENT.

Subsection B of "Section 6. Salary and Benefits" is amended to read:

A. City agrees to pay City Manager for his services rendered pursuant hereto an annual base salary of Two Hundred Twenty -Two Thousand, Eight Hundred and Fifty -Two Dollars ($ 222, 852. 00) (" Base Salary"), effective on June 1, 2023, Base Salary Effective Date"), payable in equal installments at the same time as other employees of the City are paid. It shall be the responsibility of City Manager to advise City each year of the necessity for the annual performance review, and to schedule same, by closed session with the City Council, or other appropriate procedure. Notwithstanding the necessity for at least one annual performance review, City Council may perform other performance reviews of City Manager' s performance, at any time. City Council may implement adjustments to salary, other benefits, or both, during the period of any performance review, provided, however, that consistent with Government Code section 54956, such compensation or benefits may only be modified at a regularly scheduled meeting of the City Council.

SECTION 3. RETROACTIVE PAY INCREASES IF AGREED TO BY ALL PARTIES Section 13. Retroactive Pay Increase shall be added to the Agreement as follows:

Should the City agree to a salary increase for the City Manager either through a new agreement or amendment to the Agreement, such salary increase shall be effective retroactively to July 1, 2024.

SECTION 4. OTHER TERMS UNCHANGED
Except as set forth in this Amendment, all terms, conditions, and provisions of the 159/ 012225- 0101
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Agreement are unchanged and remain in full force and effect.

CITY:

CITY OF DUARTE
ATTEST:

Annette Juarez, —City Clerk
City of Duarte
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
Thal Vi f Phan, City Attorney
City of Duarte
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Vinh Truong, aYor
City of Duarte
CITY MANAGER:

BRIAN VILLALOBOS, an individual

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CITY OF DUARTE CITY MANAGER EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered as of July 9, 2024, by and between the CITY OF DUARTE, a public body and general law city of the State of California (the “City”), and BRIAN VILLALOBOS, an individual (the “City Manager”), both of whom understand as follows:

RECITALS:

WHEREAS, the City desires to employ the services of BRIAN VILLALOBOS as the City Manager as provided by the Duarte Municipal Code Chapter 2.12; and WHEREAS, it is the desire of the City to establish certain conditions of employment and to set working conditions of said City Manager; and
WHEREAS, the City Council conducted an evaluation of the City Manager in June 2024 and found that the City Manager’s work and achievements warranted renewal of the City Manager’s contract; and
WHEREAS, City Manager desires to maintain employment as City Manager of said City.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows:

SECTION 1. DUTIES.

A. City hereby agrees to employ BRIAN VILLALOBOS as City Manager of said City to perform the functions and duties specified in the Duarte Municipal Code Chapter 2.12, pursuant to Government Code sections 36501, 36506, and 34851 et seq., and as provided by other state and federal law, and to perform other legally permissible and proper duties and functions as the City Council of the City of Duarte (the “City Council”) shall from time to time assign.

B. City Manager, with prior written approval of the City Council, may undertake outside professional activities for compensation, including teaching, speaking, and writing, provided they do not interfere with City Manager’s normal duties, are done only during vacation or other non-working time of City Manager, and are not done with any then-existing vendors or contractors of the City, or past vendors or contractors where conflicts of interest are triggered under state or local law. Under no circumstances shall such outside activity create a conflict with the duties of the City Manager and the interests of the City. The City Council, in its sole discretion, may determine when such a conflict exists.

C. Pursuant to Municipal Code Section 2.12.070, City Manager shall devote his fulltime work duties to the office of the City Manager. Subject to paragraph 1(B) above, City Manager shall not, while employed by the City, perform any other work for hire, and shall not perform any unpaid or volunteer work that conflicts with performance of his duties as City Manager. City Manager shall perform those duties and have those responsibilities that are commonly assigned to a City Manager of a general law city in the State of California with a council-manager form of government, and as are further set forth in the City’s Municipal Code, including but not limited to 181
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Chapter 2.12.090 thereof, as may be amended from time to time. The terms of Municipal Code Chapter 2.12, as the same may from time to time be amended, are incorporated herein as though fully set forth. In the event of any conflict between the terms of this Agreement and the terms of Chapter 2.12, the provisions of this Agreement shall prevail pursuant to the authority of the City Council to enter into this Agreement set forth in Municipal Code Section 2.12.120.

SECTION 2. TERM.

A. The term of this Agreement shall be from July 10, 2024 (the “Effective Date”), through and including June 30, 2026, unless earlier terminated as provided herein. Thereafter, the parties may renew the Agreement pursuant to their mutual agreement.

B. City Manager shall serve at the pleasure of City Council. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City Council acting for the City to terminate the services of City Manager at any time, with or without cause, subject only to the provisions set forth in Section 5 of this Agreement, and the provisions of the Duarte Municipal Code, Chapter 2.12, not otherwise waived hereunder.

C. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City Manager to resign at any time from his position with City, subject only to the provision set forth in Section 4, Paragraph G, of this Agreement.

SECTION 3. ADMINISTRATIVE LEAVE WITH PAY.

City may place City Manager on Administrative Leave with full pay and benefits at any time during the term of this Agreement. However, if the purpose of placing City Manager on Administrative Leave With Pay is to conduct an investigation into potential wrongdoing, and after that investigation, City Manager is convicted of a crime involving abuse of their office or position, then pursuant to Government Code Section 53243, City Manager shall be required to fully reimburse City for any salary or benefits received while on Administrative Leave With Pay. “Abuse of office or position” shall be as defined in Government Code Section 53243.4, as may be amended.

SECTION 4. TERMINATION AND SEVERANCE PAY.

A. The City Council shall have the right at any time during the term of the Agreement, upon thirty (30) days’ prior written notice to City Manager, and notwithstanding the provisions of subdivisions (a) through (d) of Municipal Code Section 2.12.110, but subject to the limitation set forth in subdivision (e) of Municipal Code Section 2.12.110 [no dismissal within 90 days of election or appointment of Council member], to terminate this Agreement and City Manager’s employment, for any reason or for no reason, by a vote of a majority of the members of the City Council (and not a majority vote of the quorum only, in the event of a meeting where less than the full number of members are present, and the majority of the quorum is less than four votes) voting at regular, adjourned regular, or special meeting of the City Council. If such termination is involuntary and for reasons other than “misconduct in office” or “for cause” as further specified herein, City Manager shall be entitled to receive a severance payment in an amount provided in Duarte Municipal Code section 2.12.060. The severance payment provided for herein shall be in addition to, and not offset by, any payment to which City Manager may otherwise be entitled to, 182
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or qualify for, through the Chief Executive Separation Payment provided under the California Joint Powers Insurance Authority’s Memorandum of Coverage – Primary Liability Program.

B. The City Manager and City acknowledge and agree that there is a mutual benefit in advancing and maintaining a positive and non-controversial resolution to the employment relationship. In keeping with the spirit of this provision, and as a condition to the receipt of any amount of severance pay as provided in paragraph 4.A above, and as partial consideration therefor, City Manager agrees not to make any public or private statements critical or disparaging of the City, the City Council, its members, department heads, officers, or employees.

C. Pursuant to Government Code sections 53243, 53243.1 and 53243.2, if City Manager is convicted of a crime involving an abuse of his office or position, all of the following shall apply: (1) if City Manager is provided with administrative leave pay pending an investigation, City Manager shall be required to fully reimburse City such amounts paid; (2) if City pays for the criminal legal defense of City Manager (which would be in its sole discretion, as it is generally not obligated to pay for a criminal defense), City Manager shall be required to fully reimburse City such amounts paid. For purposes of this Section, abuse of office or position means either: (1) an abuse of public authority, including waste, fraud, and violation of the law under color of authority; or (2) a crime against public justice, including, but not limited to, a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code.

D. To the extent City Manager’s termination is not involuntary, is for misconduct in office, or is otherwise “for cause” as provided below, City Manager shall be entitled to no severance pay from the City. Any of the following, for the purposes of Duarte Municipal Code Section 2.12.110(e), shall constitute “misconduct in office”:
(1) conviction of a felony or misdemeanor involving misrepresentation, fraud, or moral turpitude;
(2) knowingly and unlawfully participating in a governmental decision in which the City Manager has a conflict of interest as defined in Government Code sections 87100, et seq., or Government Code sections 1090 et seq.;
(3) abuse of alcohol, prescription medications, stimulants, or controlled substances that materially affects City Manager’s discharge of his duties; (4) failure to follow a written directive of the City Council, after written notice of such failure is provided to City Manager;
(5) repeated or recurring unexcused absences from the City Manager office, City Hall, or City Manager’s duties;
(6) performance of outside business interests, or participation in transactions, contracts, or financial activities that conflict directly with City’s policies or activities, without prior consent of any such conflict in writing by City Council; (7) conduct that is publicly insubordinate, or humiliating, or demeaning to the City or City Council;
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(8) willful destruction or misuse of City property;
(9) willful and unlawful retaliation against any employee, officer, official, manager, agent, or representative of the City, or member of the general public, who in good faith reports, discloses, reveals, or divulges to any appropriate authority, any violation of law, or any facts or information pertaining thereto; and
(10) willful disclosure of closed session confidential communications, attorneyclient confidential communications, or other information whose confidentiality is privileged or protected by law.

Apart from such grounds for removal as are otherwise defined under state law, the Duarte Municipal Code, or this Agreement, the determination of what constitutes appropriate “cause” for termination of City Manager shall be within the sole discretion of the City Council.

F. In the absence of grounds for imposing discipline on City Manager, in the event:
(1) City at any time during the term of this Agreement reduces the salary or other financial benefits of City Manager in a greater percentage than an applicable across-the-board reduction for all general full-time employees of City; or (2) City refuses, following written notice by City Manager to the City Attorney specifying a breach of this Employment Agreement, to remedy or undertake to remedy any such breach, then City Manager may, at his option, elect to be deemed to be “terminated” as of that time, and shall be entitled to the severance pay from City.

G. In the event City Manager voluntarily resigns his position with City before expiration of the above-referenced term of his employment, then City Manager shall give City no less than sixty (60) days’ notice in advance, unless the parties otherwise agree, and City Manager shall not be entitled to any severance pay from City.

SECTION 5. DISABILITY.

If City Manager is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity, or health for a period of six (6) successive weeks beyond any accrued sick leave to which City Manager is entitled, or for the legal duration of the Family and Medical Leave Act (whichever is greater), City shall have the option to terminate this Agreement. Termination pursuant to this Section will not subject the City to payment of severance pay. However, City Manager shall be compensated for any accrued vacation, holidays, and other accrued benefits on the same basis as any other employee of the City pursuant to the Personnel Rules.

SECTION 6. SALARY AND BENEFITS.

A. Salary.

City agrees to pay City Manager for his services rendered pursuant hereto an annual base 184
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salary of Two Hundred Thirty-Six Thousand, Two Hundred and Twenty-Three Dollars ($236,223.00) (“Base Salary”), effective on July 1, 2024, (“Base Salary Effective Date”), payable in equal installments at the same time as other employees of the City are paid. It shall be the responsibility of City Manager to advise City of a mid-year review to take place in or around November or December as well as the necessity for the annual performance review to take place in or around March or April, and to schedule same, by closed session with the City Council, or other appropriate procedure. Notwithstanding the necessity for at least one mid-year review and one annual performance review, City Council may perform other performance reviews of City Manager’s performance, at any time. City Council may implement adjustments to salary, bonuses, and/or other benefits during the period of any performance review, provided, however, that consistent with Government Code section 54956, such compensation or benefits may only be modified at a regularly scheduled meeting of the City Council.

B. Benefits.

In addition to the salary referred to in Paragraph 6.A above, City Manager shall receive from City the following benefits:
(a) the same package(s) of health/medical insurance benefits and dental and vision allowances as available to all other full-time City employees; (b) the same package(s) of life insurance and disability insurance as available to all other full-time City employees;
(c) participation in PERS in the same manner and to the same extent as available to all other full-time City employees;
(d) an automobile expense reimbursement of Seven Hundred and Fifty Dollars ($750.00) each month;
(e) provision of a City–owned cellular phone, data plan, tablet, and additional similar communications and computing equipment as deemed appropriate by City Council (excluding desktop computer equipment for use outside City Hall); (f) paid membership in the International City/County Management Association (ICMA); and the California City Management Foundation (CCMF). (g) paid travel and meeting attendance for City Manager to professional groups and associations related to the City Manager position and industry-related topics, as may be approved by the City Council as part of the annual City budget or subsequent appropriations; provided, however, that any out-of-state business travel or other reimbursed travel requested by City Manager for other members of City staff at the same event for which City Manager receives reimbursed travel must be approved in advance by the City Council; and (h) vacation of up to one hundred twenty (120) hours of paid vacation time annually; which shall accrue sixty (60) hours upon the Effective Date of this Agreement, and sixty (60) hours on the sixth month anniversary, and thereafter all one hundred twenty (120) hours on the anniversary date of the Effective Date. Not more than eighty (80) hours of vacation may be 185
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taken consecutively by City Manager without the prior approval of the City Council. Carryover and accrual of vacation time shall be subject to the following provisions: City Manager shall have the option, not later than thirty (30) days prior to end of each fiscal year ending June 30, to provide notice to the City Council that they City Manager elects to either (i) be paid for any unused vacation time existing as of the end of that fiscal year just ended, or (ii) carryover to the next fiscal year that began that July 1 such unused vacation time; provided, however, that in no event shall City Manager be permitted to carry over more than three hundred and sixty (360) hours of unused vacation time for a given year, or cumulatively. In addition, City Manager shall not be permitted to have or accumulate at any time more than three hundred and sixty (360) hours of unused vacation time, regardless of the actual number of hours of unused vacation time. Unused vacation time as defined and limited by the foregoing provisions shall be paid to City Manager at the time of expiration or termination of this Agreement, in addition to such severance payment to which City Manager is entitled to under this Agreement, if any. (i) participation in deferred compensation, in the same manner and to the same extent as available to all other full-time employees.

SECTION 7. HOURS OF WORK.

Administrative leave will not accrue from one fiscal year to the next.

SECTION 8. OTHER TERMS AND CONDITIONS OF EMPLOYMENT.

B. All regulations and rules of the City relating to vacation and sick leave, retirement and pension system contributions, holidays and other fringe benefits and working conditions as they now exist or hereafter may be amended, shall also apply to City Manager as they would to other general full-time employees of City, in addition to the benefits specifically set forth herein for the benefit of City Manager.

SECTION 9. SURETY BOND.

In accordance with Municipal Code Section 2.12.040, it is mutually understood and agreed that City Manager will file with the City Council, prior June 1, 2023, a corporate surety bond to be approved by the City Council to secure the faithful performance of the duties imposed upon City Manager as City Manager. The amount of the surety bond required herein shall be One 186
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Million Dollars ($1,000,000.00). Said bond shall be paid for by the City as provided in Municipal Code Section 2.12.040. Alternatively, this requirement may be met by the City securing no less than One Million Dollars ($1,000,000.00) of Government Crime insurance, which covers the activities of the City Manager.

SECTION 10. ARBITRATION.

A. Dispute Resolution and Binding Arbitration.

City Manager and City agree that any dispute that arises out of or relates to City Manager’s employment with City, including but not limited to any dispute that concerns the validity, enforceability, or breach of this Agreement, or any dispute against any present or former officer, director, employee, agent, attorney, or insurer of the City, shall be submitted to binding arbitration.

City Manager and City agree that any claim arising hereunder shall be brought in the individual capacity of the City Manager or City, and not as a collective or representative claim on behalf of any person or class. Nothing in this section shall prevent City Manager from filing or maintaining a charge with the United States Equal Employment Opportunity commission or the National Labor Relations Board, from making a workers’ compensation claim, or from seeking unemployment benefits. Disputes that may not be subject to pre-dispute arbitration agreement by law are excluded from this Agreement. City shall be responsible for payment of the costs of the services of the arbitrator. City Manager will not be subject to any retaliation or discrimination if City Manager seeks to challenge this arbitration provision or participate in a class or collective action. The arbitration shall take place in Los Angeles County, California, and both City and City Manager agree to submit to the jurisdiction of the arbitrator selected in accordance with rules and procedures as they shall mutually agree, or in the absence of such agreement, under the arbitration rules of JAMS. Except as to the right to a hearing under Duarte Municipal Code section 2.12.110(b), City Manager and City agree that this arbitration procedure will be the exclusive means of redress for any disputes relating to or arising from City Manager’s employment with City, including disputes over rights provided by federal, state, or local statutes, regulations, ordinances, and common law, including all laws that prohibit discrimination based on any protected classification. The parties each expressly waive the right to a jury trial, and agree that the arbitrator’s award shall be final and binding on the parties, provided that any award shall be reviewable by a court of law to the fullest extent allowed by law, including for any error of law by the arbitrator. The arbitrator shall have discretion to award monetary and other damages, or to award no damages, and to fashion any other relief the arbitrator deems appropriate, but only to the extent consistent with law. The parties expressly agree that each party shall bear its own costs and attorneys’ fees incurred in bringing or defending an action under this Section, to the fullest extent allowed by law at the time of the arbitration. By their initials below, each signing party acknowledges that it understands it is waiving its right to trial by jury of any issues arising under this Agreement, and is knowingly and voluntarily waiving them:

City Initials: _________________ City Manager Initials: ________________ 187
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SECTION 11. NOTICES.

Notices pursuant to this Agreement shall be given by: (1) email with verification of delivery; (2) personal delivery; (3) overnight delivery service with confirmation; or (4) deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows:

CITY: CITY OF DUARTE
1600 Huntington Drive
Duarte, CA 91010
Attn: City Clerk
email: [email protected]
with copy to: RUTAN & TUCKER, LLP
18575 Jamboree Rd., 9th Fl.

Irvine, CA 92612
Attn: Thai Viet Phan, Esq.
email: [email protected]
CITY MANAGER: BRIAN VILLALOBOS
655 Sierra Meadow Dr
Sierra Madre, CA 91024
email: [email protected]
Notice shall be deemed given as of the date of personal, overnight delivery, email, or facsimile service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service.

SECTION 12. GENERAL PROVISIONS.

A. This Agreement shall constitute the entire agreement between the parties. No prior oral or written communications are incorporated herein.

B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of City Manager.

C. This Agreement may be signed in counterparts with signature pages transmitted by email, facsimile, personal delivery, or overnight delivery, all of which will be treated as originals.

E. No officer, official, City manager, agent, or representative of the City shall be personally liable to City Manager in the event of any default or breach by the City of this Agreement or for any amount which may become due to City Manager under this Agreement or for breach by City of any of the terms of this Agreement. 188
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F. Governing Law; Remedies; Attorneys’ Fees/Litigation Matters; Waivers. (1) The internal laws of the State of California, without regard to principles of conflicts of laws, shall govern the interpretation of this Agreement. (2) In addition to any other rights or remedies and consistent with the arbitration clauses applicable hereunder, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.

Notwithstanding anything in this Agreement to the contrary, in no event shall City Manager be entitled to economic or consequential damages or to punitive damages. (3) Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
(4) Waivers of the provisions of this Agreement by any party hereto shall not be effective unless in writing.

G. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, including but not limited to any recruitment brochures or materials, are merged into this Agreement and shall be of no further force or effect.

H. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

J. Time for Approval. Once this Agreement has been signed by City Manager and delivered to the Mayor, it shall thereafter be null and void unless approved by a majority of the 189
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members of the City Council voting in open session at regular, adjourned regular, or special meeting of the City Council, not later than August 30, 2024.

CITY:

CITY OF DUARTE
____________________________________
Vinh Truong, Mayor
City of Duarte
ATTEST:
____________________________________
Annette Juarez, City Clerk
City of Duarte
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
____________________________________
Thai Viet Phan, City Attorney
City of Duarte
CITY MANAGER:
___________________________________
BRIAN VILLALOBOS, an individual
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Duarte City CouncilJuly 9, 2024

Duarte City Council
July 9, 2024