INTERIM CITY MANAGER EMPLOYMENT AGREEMENT
This INTERIM CITY MANAGER EMPLOYMENT AGREEMENT ("AGREEMENT") for reference dated April 4, 2022 by and between PATRICK HEISINGER ("HEISINGER") and THE CITY OF EAST PALO ALTO, a municipal corporation ("CITY"), is made with reference to the following facts:
RECITALS:
WHEREAS, the CITY is in the process of conducting a search for a City Manager to perform all management and administrative services as required; WHEREAS, the appointment of an Interim City Manager is necessary to facilitate a smooth transition period through the appointment of a new City Manager; WHEREAS, prior to the effective date, HEISINGER was employed by the CITY as the CITY’s Assistant City Manager;
WHEREAS, the CITY, acting by and through its City Council, desires to employ the services of HEISINGER as Interim City Manager; and
WHEREAS, HEISINGER is agreeable to performing the duties of Interim City Manager in accordance with the terms and conditions set forth in this AGREEMENT.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
AGREEMENT:
1. Employment. CITY hereby appoints HEISINGER, and HEISINGER hereby accepts employment with the CITY as the Interim City Manager, to serve at the will of the City Council subject to the terms set forth in this AGREEMENT.
2. Scope and Duties.
a. HEISINGER hereby accepts such at-will status, and agrees to perform all obligations and responsibilities diligently within the parameters indicated by the City Council, applying the highest degree of professionalism, ethics, integrity and competency to the discharge of every aspect of the obligations of the position of Interim City Manager and/or described in this AGREEMENT. b. The services to be provided by HEISINGER will include, but are not limited to, those enumerated under Chapter 2.12 and Section 2.08.180 of the East Palo Alto Municipal Code, as they may be amended from time to time, or as specifically enumerated in this AGREEMENT and any amendment thereto entered into by the mutual agreement of HEISINGER and the CITY. c. HEISINGER may submit an application for the position of City Manager during the recruitment process for the position and may proceed as a candidate in accordance with the procedures established for all candidates. However, HEISINGER shall otherwise refrain from influencing the recruitment process as Interim City Manager including supervising, managing or directing City staff and/or the executive search firm retained to perform the recruitment.
3. Term. The term of this AGREEMENT shall commence at 5:01 pm on April 30, 2022 (“Effective Date”) and shall terminate upon the start date of the new City Manager, unless terminated sooner in accordance to the terms in this AGREEMENT.
4. Compensation. For and in exchange for the services provided herein, HEISINGER shall be compensated at an annual base salary of Two Hundred Twenty Thousand Dollars ($220,000) during the term of this AGREEMENT. HEISINGER shall be paid on a prorated basis bi-weekly in accordance with the CITY’s payroll practices and paid at the same time as other employees of the CITY are paid, effective the first full pay period after the Effective Date of this AGREEMENT.
5. Benefits. HEISINGER shall continue to receive the same benefits provided to other Executive Management Employees of the City during the course of this AGREEMENT.
6. Automobile Allowance. HEISINGER shall be entitled to an automobile allowance of $300 per month during the term of this AGREEMENT.
7. Cash Out of Accrued Vacation Leave. HEISINGER shall retain the right to "cash out" an additional week of accrued but unused vacation leave applicable to the position of Assistant City Manager prior to June 30, 2022 at the hourly rate applicable to the position of Assistant City Manager. He retains the right to cash out other accrued but unused vacation leave. The hourly rate upon which the amount of such "cash out" is to be calculated shall be based on the time served in each position.
8. At-Will Status. HEISINGER is, and at all times shall remain, an at-will employee of City. HEISINGER understands and agrees that he has no constitutional or legally protected property or other interest in his appointment to Interim City Manager and serves at the pleasure of the City Council. HEISINGER waives any and all rights to challenge or appeal any such termination from the position of Interim City Manager or to invoke any due process rights or protections as a condition to the City’s right to terminate this Agreement.
9. Assignment and Subcontracting. The services to be provided hereunder shall be rendered by HEISINGER. HEISINGER agrees not to assign or subcontract to any other party the performance of any services described in this AGREEMENT.
10.Outside Employment. HEISINGER shall not engage in any incompatible work or other enterprise for compensation.
11.Termination by City.
a. The City Council has the right, upon thirty (30) days advance written notice to HEISINGER, to terminate this AGREEMENT at any time during the term of this AGREEMENT with or without cause, and nothing in this AGREEMENT shall prevent, limit or otherwise interfere with the right of the City Council to terminate the AGREEMENT at any time without cause, subject only to the provisions set forth in this section.
b. Notwithstanding the foregoing, the City Council may immediately terminate the AGREEMENT at any time upon written notice for any one or more of the following causes:
1. Conviction of, or plea of guilty or nolo contendere to a felony, or a misdemeanor involving moral turpitude;
2. Violation of Government Code section 1090, or violation of any conflict of interest laws or regulations as determined by a court or an administrative agency;
3. A final judicial or administrative decision finding that HEISINGER committed unlawful acts of sexual harassment or discrimination against a City official or employee;
4. Any material breach of this Agreement, if that breach continues for a period of thirty (30) business days from the date of his receipt of notice from the City Council specifying the acts or omissions deemed to be a material breach of this Agreement;
5. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code Section 53243.4;
6. Possession of, use of, or working while under the influence of alcoholic beverages or other non-prescribed controlled substances or abuse/misuse of lawfully prescribed controlled substances during working hours;
7. Violation of State or federal discrimination laws concerning race, religious creed, color, national origin, ancestry, physical or mental disability, marital status, sex or age concerning either members of the general public or City employees;
8. Repeated and protracted unexcused absences from work;
9. Any grossly negligent action or inaction by HEISINGER that materially and adversely: (i) impedes or disrupts the operations of City or its organizational units; or
10. Refusal to comply with any lawful direction, decision or order given or made by a majority of the City Council.
12.Termination by Employee. HEISINGER may, upon giving the CITY thirty (30) days advance written notice, resign from the position of Interim City Manager and return to the position of the Assistant City Manager. Upon reinstatement as Assistant City Manager, HEISINGER shall enjoy those benefits and be subject to the terms and conditions of employment applicable to the position of Assistant City Manager. The CITY shall not terminate the employment of HEISINGER for a period of one hundred twenty (120) days after the date of reinstatement to Assistant City Manager, unless the termination is for a cause identified in Section 11(b).
13.Notices. All notices that are required to be given by one party to the other under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a U.S. Post Office for delivery by registered or certified mail addressed to the parties at the following addresses:
To CITY: Mayor and City Council
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
To HEISINGER: Patrick Heisinger
2415 University Avenue
East Palo Alto, CA 94303
14.Insurance. HEISINGER shall obtain automobile insurance for the use of his personal automobile for City use, and maintain such insurance in force at all times during the term and performance of this AGREEMENT.
15.Indemnification.
a. The City shall defend, hold harmless and indemnify HEISINGER against any tort, professional liability claim or demand or other legal action arising out of any alleged act or omission arising out of HEISINGER's services to the CITY including, without limitation, claims arising out of personnel actions, but excluding liability arising from an (1) intentional tort or gross negligence committed outside the course and scope of employment; or (2) a criminal act.
CITY shall defend, and may elect to compromise and settle any such claim or suit, and shall pay the amount of any settlement or judgment rendered thereon.
Notwithstanding any other provision herein, CITY reserves the right to determine whether to indemnify for punitive damages.
b. Notwithstanding the foregoing, such indemnification shall be limited as follows:
In accordance with California Government Code Sections 3511.1, 3511.2, 53243, 53243.1 and 53243.2, the following limitations apply to CITY's obligations to HEISINGER.
1. In the event HEISINGER is placed on paid leave pending an investigation, HEISINGER shall reimburse such pay to CITY if he is subsequently convicted of a crime that constitutes "abuse of office or position."
2. In the event City pays for HEISINGER's legal criminal defense, he shall fully reimburse such funds to the CITY if he is subsequently convicted of a crime that constitutes "abuse of office or position."
3. If this AGREEMENT is terminated, any cash settlement related to the termination that HEISINGER may receive from CITY must be fully reimbursed to CITY if he is subsequently convicted of a crime that constitutes "abuse of office or position."
4. For the purposes of this AGREEMENT, "abuse of office or position" shall be defined as in California Government Code Section 53243.4."
16.Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this AGREEMENT shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by both parties.
17.Governing Law and Venue. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. HEISINGER and CITY agree that venue for any litigation arising out of this AGREEMENT shall be Superior Court for San Mateo County.
18.Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument.
19.Severability Clause. Should any provision of this AGREEMENT ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable to the greatest extent permitted by law.
20.Ambiguity. The parties acknowledge that this is a negotiated AGREEMENT and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this AGREEMENT or any amendment or schedule hereto.
21.Headings. The section headings contained in this AGREEMENT are inserted for convenience only and shall not affect in any way the meaning or interpretation of this AGREEMENT.
22.Entire Agreement. This AGREEMENT constitutes the entire understanding and AGREEMENT between the parties as to those matters contained in it, and supersedes any and all prior or contemporaneous Agreements, representations and understandings of the parties. This AGREEMENT may be amended at any time by mutual agreement of the parties, but any such amendment must be in writing, dated, and signed by the parties.
IN WITNESS WHEREOF, the parties have entered into this AGREEMENT on the day and year shown below the name of each of the parties.
CITY OF EAST PALO ALTO, PATRICK HEISINGER,
A municipal corporation An individual
BY: BY:
Ruben Abrica, Mayor Patrick Heisinger
DATE: DATE:
ATTEST: APPROVED AS TO FORM:
James Colin, Acting City Clerk Valerie J. Armento, Interim City Attorney