RESOLUTION NO. R-2023-068
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA APPROVING A CITY MANAGER EMPLOYMENT AGREEMENT WITH JORGE E. GARCIA
WHEREAS, following the departure of its previous City Manager in June 2023, the City Council of the City of Pismo Beach has conducted an extensive nationwide search for qualified candidates for the position of City Manager; and WHEREAS, the City Council conducted interviews of the most qualified candidates for the position; and
WHEREAS, the City Council has determined that Jorge E. Garcia is the most qualified candidate for the position of City Manager; and
WHEREAS, the City Council wishes to set forth the terms and conditions of employment in a written agreement with Mr. Garcia.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby approves the attached employment agreement (Exhibit A) entitled "Employment Agreement Between the City of Pismo Beach and Jorge E. Garcia", and the Mayor is hereby directed to sign the agreement for and on behalf of the City of Pismo Beach.
UPON MOTION OF Council Member Guthrie, seconded by Council Member Newton, the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 3ra day of October 2023, by the following vote:
AYES: 5 Guthrie, Newton, Inman, Reiss, Waage `F,?Ismp
NOES: 0 /�� piP0RyeF
ABSENT: 0 ` �O
ABSTAIN: 0 {) o
RECUSED: 0 —�—
App po ed: ,
E W \ge Mayor
Attest:
Clerk
PAGE 1 OF 5
R-2023-068
I
EMPLOYMENT AGREEMENT
BETWEEN THE CITY OF PISMO BEACH
JORGE E. GARCIA
'Phis Agreement is made and entered into this 3rd day of October, 2023 by and between the City of Pismo Beach, a municipal corporation, (hereinafter called "Employer") and Jorge E. Garcia. an individual, (hereinafter called "Employee") both of whom agree as follows:
Section 1: Term
The Term of this agreement shall be fora period of four (4) years, from October 3, 2023 to October 2, 2027. Notwithstanding the Term of the agreement, Employee acknowledges that his position with the City is an "at -will" position, and Employer need not provide advance notification, sufficient orjest cause or a right of appeal from a decision to terminate Employee. Employer shall notify Employee not later than six months prior to the end of the Term that Employer does not intend to extend the Tem. In the absence of such notice, the Term shall be extended for an additional fora year period on the same terms and conditions, or on such other terms and conditions at the parties may agree.
Employer's election not to extend this Agreement shall not entitle Employee to severance personal to Section 10 of this Agreement. Employee shall be entitled to only such benefits upon termination as are explicitly set forth in this Agreement.
Section 2: Duties and Authority
Employer agrees to employ Employee as City Manager to perform the functions and duties specified for that position under Pismo Beach Municipal Code Section 2.08.050 and to perform other legally permissible and proper duties and functions.
Section 3: Compensation
A. Base Salary: Employer agrees to pay Employee an annual base salary of two hundred forty-five thousand six hundred sixty-one dollars and thirty-nine cents ($245,661.39), Step D on the city manager salary schedule, payable in installments at the time that department heads of the employees of the Employer are paid. As additional compensation, the City shall contribute a monthly sum, equal to the amount paid on behalf of department heads, into the City's deferred compensation plan on behalf of Employee. This contribution shall be made on a prorated basis, payable in 24 equal payments —two each month.
B. This agreement shall be automatically amended to reflect any salary adjustments that are provided by resolution to department heads, or as otherwise required by the Employer's compensation policies.
C. The Employer agrees to increase compensation of the Employee to Step E of the city manager salary range upon a satisfactory performance evaluation conducted under the provisions of Section 12 of this Agreement in addition to providing an annual increase in Employee's compensation equal to the average percentage increases provided by resolution to Employer's department heads.
ary ort+>�e..en
Pepel N/
If)
LL
O
N
W
Q
a
Section 4: Health, Disability and Life Insurance Benefits A. The Employer agrees to provide and to pay the premiums for insurance programs for the Employee and his dependents equal to those provided to department heads of the City of Pismo Beach. In the event Employee does not wish to enroll in such insurance programs, Employee may elect to receive the cash equivalent ofsuch benefits established for department heads by direct payment, or payment into adefamed compensation program
B. The Employer shall pay the amount of the premium due for term life insurance in the amount equal to the annual base salary, including all increase in the base salary during the life ofthis agreement, in the event such policy of insurance is commercially reasonably available. Ifsuch a policy is not commercially reasonably available, Employer shall pay the amount of the premium due for commercially reasonably available term life insurance in an amount most closely equaling the annual base salary. The Employee shall time the beneficiary ofthe life insurance policy.
Section 5: Vacation. Sick Administrative and Holiday Leave The Employee shall receive such vacation leave, sick leave, administrative leave, and paid holidays each year as are received by department heads.
Section 6: Automobile Allowance
The Employee's duties require exclusive and unrestricted use of an automobile. The Employer agrees to pay the Employee, during the term of this Agreement and in addition to other salary and benefits herein provided the sum of$300.00 per month, which shall cover all expenses of whatever nature incurred in the use of Employee's automobile for his duties for Employer. The Employee shall be responsible for paying liability, property damage and comprehensive insurance coverage upon such vehicle, with liability limits not less than $100,000 per occurrence/$300,000 aggregate, and shall further be responsible for all expenses attendant to the purchase, operation, maintenance, repair and regular replacement of said vehicle.
Section 7: Retirement
The Employer agrees to enroll the Employee into the applicable state PERS retirement system or plat using the 2 % © 60 base formula- Employee shall pay the member contribution established from time to time under the City's agreement with PERS.
C"Y mrm,00 wh
ia,ton
Section 8: General Business Expenses
A. Employer agrees to budget for and pay for professional dues and subscriptions of the Employee necessary for continuation and full participation in ICMA, California City Management Foundation and the City Manager's section of the League of Califomia Cities for the Employee's continued professional participation, growth, and advancement, and for the good of the Employer.
B. The Employer agrees to budget for and pay for navel and subsistence expenses of Employee, for professional development of Employee and to pursue necessary official functions of the Employer, to the ICMA Annual Conference, and the League of California Cities City Managers department annual meeting. The Employer further agrees to consider, as part of its regular budgeting process, paying for travel and subsistence expenses of Employee incurred in connection with meetings of professional organizations of which Employee is a board member for the Employee's continued professional participation, growth, and advancement, and for the good of the Employer.
C. Employer recognizes that certain expenses of a non -personal butjobrelated nature are incurred by Employee, and agrees to reimburse or to pay said general expenses. The Administrative Services Director is authorized to disburse such moneys upon receipt of duly executed or petty cash vouchers, receipts, statements or personal affidavits.
D. The Employer acknowledges the value of having Employee participate and be directly involved in local civic clubs or organizations. Accordingly, Employer shall pay for the reasonable membership fees and/or does to enable the Employee to become an active member in local civic club organizations of Employee's choice.
E. The Employer acknowledges the value of Employee being immediately accessible to Council members and staff via electronic mail and mobile telephone at all hours, whether Employee is present at City Hall or not. As such, the Employer shall provide and pay for Employee's access to a mobile data plan of reasonably sufficient capacity to allow Employee to promptly respond to electronic mail while absent from City Hall, and to pay Employee a monthly mobile telephone allowance of S75.00 which shall cover all expenses of whatever nature incurred in the use of a mobile telephone for his duties for Employer.
Section 9: Termination
A. For the purpose of this agreement, 1crminatiun shall occur when three(3)out of five (5) members of the City Council vote to terminate the Employee at a duly authorized public meeting, when Employee is otherwise ready, willing and able to perform the duties of his position. Pursuant to Pismo Beach Municipal Code Section 2.08.030, at any mceting where the question of retention or removal of the city manager is considered, Employee shall have the right to present such evidence in his own behalf as he may desire; but the crash—, B—Is
Pp 3or
to
LL
O
ce)
W
Q
a
M
City Council shall use its uncontrolled discretion in making the decision, and its action shall be final and shall not depend on any particular showing or degree of proof.
B. Notwithstanding anything to the contrary elsewhere in this Agreement, in the absence of conviction for abuse of office or position by Employee, as that term is defined in Government Code Section 53243.4, the City Council shall not terminate the employment of Employee for a period of one hundred twenty (120) calendar days before or following any regular or special election to fill any seat on the City Council. The purpose of this subsection is to allow the Council adequate time to objectively evaluate Employee's performance.
C. If Employee is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity or health, with or without a reasonable accommodation, for a period of ninety (90) successive calendar days beyond any accumulated leave, Employer shall have the option to terminate this agreement, subject to the severance pay requirements of Section 10.
D. If the Employer, citizens or the State legislature acts to amend any provisions of the municipal code pertaining to the role, powers, duties, authority, or responsibilities of the Employee's position that substantially changes the form of the government from the council-manager form of government, the Employee shall have the right to declare that such amendments constitute termination entitling Employee to severance payment under Section 10.
E. If the Employer reduces the base salary, compensation or any other financial benefit of the employee in a percentage greater than the average reduction applicable to all department heads, Employee shall have the right to declare that such reduction constitutes termination, entitling Employee to severance payment under Section 10.
F. If the Employee resigns following an offer by the Employer to accept resignation, or following a suggestion by the Employer to resign, whether formal or informal, then the Employee shall have the right to declare such resignation a termination under this Agreement, entitling Employee to severance payment under Section 10. A suggestion to resign by less than a majority ofthe City Council shall not constitute a suggestion to resign by the Employer.
G. In the event the Employer terminates Employee for any reason or no reason.
Employer and Employee agree that no member of the City Council, the City management staff, not Employee, shall make any written, oral or electronic statement to any member of the public, the press, or any city employee concerning Employee's termination except in the form of ajoint press release or statement, the content of which is mutually agreeable to the City and the Employee. Thejoint press release or statement shall not contain any text or information that is disparaging to either parry. Either parry may verbally repent the substance ofthejoint press release or statement in response to any inquiry.
anorrroo�aQn
Section 10: Severance
Except m set forth in subsection C. and under Government Code Section 53260, if the Employee is terminated under Section 9, and if Employee signs, delivers to the Employer, and does not revoke, a general release agreement approved by the City Attorney, the Employer shall provide a severance payment equal to six (6) months salary at the current rate of pay plus the cost of the equivalent of six months' COBRA payments at the level of benefits for Employee and his dependents as of the date of termination. The severance shall he paid in a lump sum. Notwithstanding anything to the contrary in this subsection, pursuant to Government Code Section 53243.2, regardless of the term of this Agreement, if the Agreement is terminated, any cash settlement related to the termination that Employee may receive from City shall be fully reimbursed to City if Employee is convicted of a crime involving an abuse of his office or position.
The Employee shall also be compensated for all accumulated vacation time, and one -sixth of accumulated sick leave.
Employee shall not be entitled to the severance payment set forth in subsection A. in the event he is terminated following a conviction of a felony, or of a misdemeanor involving abuse of office or position by Employee, as that term is defined in Government Code Section 53243.4.
Section 11: Reshmation
In the event that the Employee voluntarily resigns his position with the Employer, the Employee shall provide a minimum of 30 days notice unless the parties agree otherwise.
Except as otherwise provided in Section 9, Employee shall not be entitled to severance pay under Section 10 upon a voluntary resignation.
Section 12, Performance Evaluation
In January 2025, Employer shal I review the performance of Employee, using a facilitator agreed upon by the parties to conduct the performance evaluation. Employer and Employee shall also meet within 45 days following the effective date of this Agreement to establish mutual ly agreed upon performance goals for the first year of employment.
Employer shall thereafter annually review the performance of the Employee in January of each year, subject to a process, form, criteria and formal for the evaluation which shall be mutually agreed upon the Employer and Employee. The process at a minim= shall include the opportunity for both parties to:
1. Prepare a written evaluation.
2. Meet and discuss the evaluation.
3. Present a written summary of the evaluation results.
4. Develop agreed upon performance measures for the next year's evaluation.
5. The final written evaluation shall be completed and delivered to the Employee with 30 days of the evaluation meeting.
cu>ar ....
1, 3rfI
Ln
LL
O
V'
W
0 a
a
Section 13, Hours or Work
It is recognized that the Employee must devote a great deal of time outside the normal office hours on business for the Employer, including but not limited to City Council and other meetings occurring during evening and night hours. Employer is retaining Employee to perform the duties of city manager, and not for any particular working hours or schedule. Employee shall be entitled to no additional compensation for hours worked outside the Employer's normal office hours.
Section 14: Indemnification
A, Employer shall provide Employee defense and indemnification asset forth in Part 7, Division 3.6, Tide I of the Government Code, specifically Government Code Sections 995 et seq. Notwithstanding anything to the contrary in this subsection, pursuant to Government Code Section 53243. 1, if the City provides funds for the legal criminal defense of Employee, arty funds provided for thin purpose shall be fully reimbursed by Employee to the City if Employee is convicted of a crime involving an abuse of his office or position.
B. Employee recognizes that Employer shall have the right to compromise and settle all actions or proceedings in which Employer is providing Employee a defense, even if Employee objects to such compromise or settlement.
Section 15: Bondine
Employer shall bear the full cost of my fidelity or other bonds required of the Employee under any law or ordinance.
Section 16, Other Terms and Conditions of Emnlovment
The Employer shall fix any such other terms and conditions of employment as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the City of Pismo Beach municipal code or any other stale law.
Section 17: Notices
A. Notice pursuant to this Agreement shall be given by depositing in the custody of the United Stales Postal Service, postage prepaid addressed as follows:
Employer: City of Pismo Beach, 760 Marie Road, Pismo Beach, Califemia 93449
Employee: Jorge E. Garcia, c/o City of Pismo Beach, 760 Marne Road, Pismo Beach, California 93449
Ciry of Pi rasa
ra�aon
B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable to civil subpoenas. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the United States mail.
Section IS: General Provisions
A. Integration: This Agreement sets forth and establishes the entire understanding between the Employer and the Employee related to the employment of the Employee by the Employer. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any prevision of this agreement during the life of the agreement. Such amendments shall be incorporated and made a part of this agreement.
B. Binding Effect: The Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, execution. personal representatives and successors in interest.
C. Effective Date: This Agreement shall become effective on October 3, 2023.
D. Sevembility: The invalidity or partial invalidity of my portion of this Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in fall force and effect as if they have been executed by both parties subsequent to the expungement orjudicial modification of the invalid provision.
CITY OF PISMO BEACH JORGE E. GARCIA
("EMPLOYER") ("EMPLOYEE")
Ed Waage, Mayor
Jorge E. Garcia
cm orwor iwu,
r.c�a wa
LL.
O
to
LL.L
0 Q
d