April 16, 2024, Item #6
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
April 16, 2024
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
Alan Fenstermacher, City Attorney
[email protected]
CITY COUNCIL
Approval of Fifth Amendment to the Employment Agreement for the City Manager The City Council conducted its annual performance evaluation of the City Manager, Chris Hazeltine, on March 19, 2024, wherein the City Council determined the City Manager has exceeded its expectations and goals. Based on this positive evaluation, the City Council desires to amend the City Manager Employment Agreement to extend the term of the City Manager's existing contract for an additional two years and 9 months (approximately).
Recommended Action:
It is recommended the City Council authorize the Mayor to execute the Fifth Amendment (Attachment A) to the City Manager Employment Agreement between the City of Poway and Chris Hazeltine.
Discussion:
Chris Hazeltine has served as City Manager since May 6, 2019. Per the terms of the City Manager Employment Agreement (Attachment B), the City Council is required to conduct an evaluation of the City Manager's performance every year, where it may consider any amendments to the City Manager Employment Agreement, including (but not limited to) extensions of its term or performance-based salary adjustments. Previous contract amendments may be viewed on the City's website at Salaries & Benefits I Poway. CA -Official Website.
The City Council conducted its performance evaluation on March 19, 2024, and determined the City Manager has exceeded expectations, and is entitled to an extension of his existing contract, based upon his positive performance. The Fifth Amendment (Attachment A) would extend the termination date of the City Manager Employment Agreement from March 16, 2027 to December 31, 2029. 1 of 21
April 16, 2024, Item #6
Environmental Review:
This item is not subject to CEQA review.
Fiscal Impact:
None.
Public Notification:
None.
Attachments:
A. Fifth Amendment to the City Manager Employment Agreement B. City Manager Chris Hazeltine Employment Agreement
Reviewed/Approved By:
Wend K serman
Assistant City Manager
2 of21
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chris Hazeltine
City Manager
April 16, 2024, Item #6
FIFTH
AMENDMENT
TO
CITY
MANAGER
EMPLOYMENT
AGREEMENT
THIS
FIFTH
AMENDMENT
TO
CITY
MANAGER
EMPLOYMENT
AGREEMENT
("Fourth
Amendment")
is
made
and
entered
into
effective
the
1st
day
of
May
, 2023,
by
and
between
the
City
of
Poway,
a
municipal
corporation
("City"),
and
Chris
Hazeltine,
an
individual
("City
Manager").
RECITALS
1. City
and
City
Manager
entered
into
that
certain
"CITY
MANAGER
EMPLOYMENT
AGREEMENT,"
dated
April
2, 2019
and
effective
May
6,
2019
(the
"Agreement
"),
by
which
City
and
the
City
Manager
established
the
terms,
conditions,
compensation
and
other
benefits
for
the
City
Manager's
employment
by
the
City.
2. City
and
City
Manager
entered
into
that
certain
First
Amendment
to
the
Agreement
("First
Amendment"),
effective
December
3,
2019
,
that
certain
Second
Amendment
to
the
Agreement
("Second
Amendment"),
effective
March
16,
2021,
and
that
certain
Third
Amendment
to
the
Agreement
("Third
Amendment")
, effective
March
15,
2022,
and
that
certain
Fourth
Amendment
("Fourth
Amendment"),
effective
May
1,
2023.
3. The
Agreement
requires
the
City
Council
to
conduct
a
yea
rly
evaluation
of
the
City
Manager's
performance
, where
it may
consider
adjustments
to
the
Agreement.
4. On
March
19,
2024,
the
City
Council
conducted
the
performance
evaluation
contemplated
by
the
Agreement,
wherein
the
City
Council
determined
that
the
City
Manager
has
exceeded
the
City
Council's
expectations.
5. The
City
Council
and
City
Manager
desire
to
enter
into this
Fifth
Amendment
to
reflect
the
City
Manager's
positive
performance.
NOW,
THEREFORE,
IT
IS
HEREBY
AGREED
AS
FOLLOWS:
Section
1. Section
7(A)
of
the
Agreement
is
hereby
amended
to
read
as
follows
(additions
in
underline
, deletions
in
strikeout)
:
The
initial
term
of
this
Agreement
shall
be
for
a
period
of
thirty-six
(36)
months
beginning
12:00
a.m
. May
6, 2019
and
continuing
until
12:00
a.m
. May
6,
2022
March
16 , 2021
(the
"initial
Termination
Date")
. The
first
Renewal
Term
, as
defined
herein
, shall
be
from
12 :00
p.m
. March
16,
2021,
to
12 :00
a.m
. on
March
16,
2027
.
The
second
Renewal
Term,
as
defined
herein,
shall
be
from
12 :01
a.m
. on
March
16,
2027
to
11 :59
p.m
. on
December
31,
2029
.
Section
2. Except
as
otherwise
amended
by
this
Fourth
Amendment
, all
other
terms
and
conditions
of
the
Agreement
, as
amended,
shall
remain
in
full
force
and
effect.
[Signatures
on
Following
Page]
3 of21
ATTACHMENT
A
April 16, 2024, Item #6
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be executed the day and year first above written.
CITY OF POWAY CITY MANAGER
By ______________ _ By _____________ _
Steve Vaus, Mayor Chris Hazeltine
ATTEST:
Carrie Gallagher, City Clerk
APPROVED AS TO FORM:
Alan Fenstermacher, City Attorney
4of21
April 16, 2024, Item #6
CITY
MANAGER
EMPLOYMENT
AGREEMENT
Between
the
City
of
Poway,
a Municipal
Corporation,
and
Christopher
Hazeltine
1. Parties
and
Date
This
Agreement
is
dated
April
2,
2019,
and
is
effective
as
of
May
6,
2019,
by
and
between
the
City
of
Poway,
California,
a municipal
corporation
(the
"City"),
and
Christopher
Hazeltine,
an
individual
(the
"City
Manager").
A.
The
City
requires
the
services
of
a City
Manager.
B.
The
City
Manager
has
the
necessary
education,
experience,
skills
and
expertise
to
serve
as
the
City's
City
Manager;
C.
The
City
Council
of
the
City
(the
"City
Council")
desires
to
employ
the
City
Manager
to
serve
as
the
City
Manager
of
City;
D.
The
Parties
desire
to
execute
this
Agreement
pursuant
to
the
authority
of
and
subject
to
the
provisions
of
Government
Code
Section
53260
et
seq.;
and
E.
In
consideration
of
these
Recitals
and
the
performance
by
the
Parties
of
the
promises,
covenants,
and
conditions
herein
contained,
the
Parties
agree
as
provided
in
this
Agreement. 2.
Employment The
City
hereby
employs
the
City
Manager
as
its
City
Manager,
and
the
City
Manager
hereby
accepts
such
employment.
3. Commitments
and
Understandings
A.
The
City
Manager's
Commitments
(1)
Duties
&
Authority
(a)
The
City
Manager
shall
be
the
Chief
Executive
Officer
of
the
City
and
be
responsible
to
the
City
Council
for
the
proper
administration
of
al1
affairs
of
the
City.
(b)
The
City
Manager
shall
perform
all
of
the
duties
of
the
City
Manager
as
set
forth
in
Section
2.08.070
of
the
Poway
Municipal
Code
(the
"Municipal
Code"),
the
California
Government
Code,
and
City
policies
and
procedures
approved
by
the
City
Council,
as
may
be
provided
from
time
to
time.
(c)
The
City
Council
has
designated
and
may
also
designate
the
City
Manager
as
the
chief
executive
of
other
City-related
legal
entities.
Such
other
legal
entities
include
the
Poway
Housing
Authority;
the
City
in
its
capacity
of
successor
agency
to
the
former
5 of21
l
ATTACHMENT
B
April 16, 2024, Item #6
Redevelopment
Agency
of
the
City
of
Poway;
the
City's
financing
authority;
and
its
joint
powers
authorities.
(d)
To
accomplish
this,
the
City
Manager
shall
have
the
power
and
be
required
to:
(i)
Attend
all
meetings
of
the
City
Council,
unless
excused
by
the
Mayor,
and
take
part
in
the
discussion
of
all
matters
before
the
City
Council.
(ii)
Review
all
agenda
documents
before
preparing
the
agenda
for
any regular
or
special
meetings
of
the
City
Council.
(iii)
Direct
the
work
of
all
appomtive
City
officers
and
departments
that
are
the
concern
and
responsibility
of
the
City
Council,
except
those
that
are
directly
appointed
by
or
report
directly
to
the
City
Council.
The
City
Manager
may
undertake
any
study
or
investigation
that
is
necessary
or
desirable,
or
as
directed
by
the
City
Council.
The
City
Manager
shall
endeavor
to
implement
changes that
the
City
Manager
believes
will
result
in
greater
efficiency,
economy,
or
improved
public
service
in
the
administration
of
City
affairs.
(iv)
Recommend
to
the
City
Council
adoption
of
such
measures
as
the
City
Manager
may
deem
necessary
or
expedient
for
the
health,
safety,
or
welfare
of
the
community
or
for
the
improvement
of
administrative
services.
(v)
Consolidate
or
combine
offices,
positions,
departments,
or
units
under
the
City
Manager's
jurisdiction.
The
City
Manager
may
be
the
head
of
one
or
more
City
departments.
(vi)
Conduct
research
in
administrative
practices
in
order
to
bring
about
greater
efficiency
and
economy
in
City
government
and
develop
and
recommend
to
the
City
Council
long-range
plans
to
improve
City
operations
and
prepare
for
future
City
growth
and
development.
(vii)
Provide
management
training
and
develop
leadership
qualities
among
department
heads
and
staff
as
necessary
to
build
a City
management
team
that
can
plan
for
and
meet
future
challenges.
( viii)
Exercise
control
of
City
government
in
emergencies
as
authorized
by
the
Municipal
Code
and
California
law.
(2)
Hours
of
Work
(a)
The
City
Manager
is
an
exempt
employee
without
set
hours
of
work
but
is
expected
to
be
available
at
all
times
and
to
engage
in
those
hours
of
work
that
are
necessary
to
fulfill
the
obligations
of
the
City
Manager's
position.
(b)
The
City
Manager
shall
spend
sufficient
hours
on
site
to
perform
the
City
Manager's
duties;
however,
the
City
Manager
has
discretion
over
the
City
Manager's
work
schedule
and
work
location.
6 of21
2 April 16, 2024, Item #6
(3)
Disability
or
inability
to
perform
In
the
event
the
City
Manager
becomes
mentally
or
physically
incapable
of
performing
the
City
Manager's
functions
and
duties
with
reasonable
accommodation,
the
City
Council
may
apply
for
disability
retirement
of
the
City
Manager,
pursuant
to
California
Government
Code
section
21153
and
any
other
applicable
provisions
oflaw.
B.
City
Commitments
(l)
The
City
shall
provide
the
City
Manager
with
the
compensation,
incentives
and
benefits,
specified
elsewhere
in
this
Agreement.
(2)
The
City
shall
provide
the
City
Manager
with
office
space,
staff,
equipment,
supplies,
automobile
allowance,
and
all
other
facilities
and
services
adequate
for
the
performance
of
the City
Manager's
duties.
(3)
The
City
shall
pay
for
or
provide
the
City
Manager
reimbursement
for
all
actual
business
expenses.
The
City
shall
provide
the
City
Manager
a
credit
card
to
charge
appropriate
and
lawful
business
expenses.
(4)
The
City
agrees
to
pay
the
professional
dues
and
subscriptions
on
behalf
of
the
City
Manager
for
participation
in
national,
regional,
state,
or
local
associations
and
organizations,
as
necessary
and
desirable
for
the
good
of
the
City,
and
for
the
City
Manager's
continued professional
participation
and
advancement.
(5)
The
City
agrees
to
pay
the
travel
and
subsistence
expenses
of
the
City
Manager
for
purposes
such
as
official
functions,
meetings,
occasions,
short
courses,
institutes
and
seminars
that
are
necessary
for
the
good
of
the
City
or
for
the
professional
development
of
the
City
Manager.
(6)
by
City
policy.
The
City
shall
provide
a monthly
cell
phone
allowance
of$75
as
established
C.
City
Council
Commitments
(I)
The
City
Council
sets
policy
for
the
governance
and
administration
of
the
City,
and
it
implements
its
policies
through
the
City
Manager.
(2)
Except
for
the
purpose
of
inquiry,
the
City
Council
and
its
members
shall
deal
with
all
subordinate
City
employees,
officers,
contractors,
and
consultants
solely
through
the
City
Manager
or
the
City
Manager's
designee,
and
neither
the
City
Council
nor
any
member
thereof
shall
give
orders
to
any
subordinate
of
the
City
Manager,
either
publicly
or
privately.
(3)
The
City
Council
agrees
none
of
its
individual
members
will
order
the
appointment
or
removal
of
any
person
to
any
office
or
employment
under
the
supervision
and
control
of
the
City
Manager.
7 of21
3 April 16, 2024, Item #6
(4)
The
City
Council
agrees
that
any
criticism
of
a City
staff
member
shall
be
done
privately
through
the
City
Manager.
(5)
Neither
the
City
Council
nor
any
of
its
members
shall
interfere
with
the
execution
of
the
powers
and
duties
of
the
City
Manager.
The
City
Manager
shall
take
orders
and
instructions
from
the
City
Council
only
when
it
is
sitting as
a body
in
a lawfully
held
meeting.
D.
Mutual
Commitments
(I)
Performance
Evaluation
(a)
The
City
Council
recognizes
that
for
the
City
Manager
to
respond
to
its
needs
and
to
grow
in
the
performance
of
the
City
Manager's
job,
the
City
Manager
needs
to
know
how
the
City
Council
members
evaluate
the
City
Manager's
performance.
To
assure
that
the
City
Manager
gets
this
feedback,
the
City
Council
shall
conduct
an
evaluation
of
the
City
Manager's
performance
after
6 months
of
employment
and
then
annually
thereafter
within
45 days
of
the
anniversary
date
of
the
City
Manager's
employment,
and/or
when
it
deems
necessary
to
discuss
any
concerns
or
direction
in performance.
At
the
time
of
evaluation,
the
City
Council
may
consider
performance-based
salary
adjustments
.
(b)
The
City
Council
and
City
Manager
shall
jointly
define
goals
and
performance
objectives
which
they
deem
necessary
for
the
proper
operation
of
the
City
in
the
attainment
of
the
City
Council's
policy
objectives
and
shall
establish
the
relative
priority
among
the
various
goals
and
objectives.
(2)
ICMA
Code
of
Ethics
(a)
The
Parties
acknowledge
that
the
City Manager
is
committed
to
the
ideals
of
the
International
City/County
Management
Association
("ICMA").
The Parties
mutually
desire
that
the
City
Manager
be
subject
to
and
comply
with
the
ICMA
Code
of
Ethics.
(b)
The
City
Manager
commits
to
comply
with
the
ICMA
Code
of
Ethics.
(c)
The
City
and
the
City
Council
agree
that
neither
the
City
Council
nor
any
of
its
members
will
give
the
City
Manager
any
order,
direction,
or
request
that
would
require
the
City
Manager
to
violate
the
ICMA
Code
of
Ethics.
4. COMPENSATION The
City
agrees
to
provide
the
following
compensation
to
the
City
Manager
during
the
term
of
the
agreement:
8 of21
4 April 16, 2024, Item #6
A.
Compensation
&
Required
Employer
Costs
( 1)
Base
Salary
(a)
The
annual
base
salary
for
the
position
of
City
Manager
shall
be
$230,000.
Commencing
November
7,
2019,
this
salary
will
be
increased
at
the
same
time
and
amount
as
that
of
other
Poway
management
employees
in
the
Management/Confidential
Group
1. The
salary
of
the
City
Manager
shall
be
at
a similar
market
position
as
Poway
department
directors
and
other
management
staff. (b)
The
City
Manager
shall
be
paid
at
the
same
intervals
and
in
the
same
manner
as
regular
City
employees;
in
the
event
that
there
are
more
than
twenty-six
pay
periods
in
a
calendar
year
the
periodic
payments
shall
be
adjusted
accordingly
so
that
the
salary
shall
not
exceed
any
amount
approved
by
the
City
Council.
(c)
The
City
shal1
not
at
any
time
during
the
term
of
this
Agreement
reduce
the
base
salary,
compensation
or
other
financial
benefits
of
the
City
Manager,
unless
as
part
of
a general
City
management
salary
reduction,
and
then
in
no
greater
percentage
than
the
average
reduction
of
all
City
department
heads.
(2)
Required
Employer
Costs
(a)
Federal
Insurance
Contributions
Act
(FICA)
(if
applicable),
including
Medicare.
(b)
Unemployment
Compensation.
(c)
Public
Employees
Retirement
System
(PERS)
The
City
contracts
with
the
California
Public
Employees'
Retirement
System
for
retirement
benefits.
The
City
will
pay
the
City's
share,
and
the
City
Manager
shall
pay
the
employee's
share
(e.g.,
7%),
for
participation
in
PERS
as
a Tier
2 classic
member.
( d)
The
cost
of
any
fidelity
or
other
bonds
required
by
law
for
the
City
Manager.
(e)
The
cost
to
defend
and
indemnify
the
City
Manager
as
provided
in
Section
7(F)
below.
(f)
Workers'
Compensation.
B.
Basic
Benefits
(1)
Holidays
The
City
Manager
is
entitled
to
those
paid
holidays
in
accordance
with
the
provisions
of
the
Salary
and
Benefit
Plan
for
the
Management
Confidential
Group
1. 9
of
21 5
April 16, 2024, Item #6
. (2)
Leave
Allowance
The
City
Manager
shall
receive
the
same
vacation,
executive
and
sick
leave
accrual
and
benefits
as
provided
to
the
Group
I
Management
class
of
City
employees,
based
on
tenure
commencing
with
an
accrual
rate
of
199.21
vacation
hours
per
year,
up
to
a maximum
of200%
of
one
year's
eligibility,
commensurate
with
his
years
of
service
in
local
government.
The
City
Manager
shall
be
paid
for
any
unused
accrued
vacation
upon
either
voluntary
or
involuntary
termination
of
employment.
Upon
the
effective
date
of
this
agreement,
the
City Manager
shall
be
granted
a vacation
balance
of
40 hours.
(3)
Automobile
The
City
Manager
shall
be
provided
a monthly
automobile
allowance
of
$633.33
($7,600
annually)
in
exchange
for
making
a vehicle
available
for
the
City
Manager's
own
use
and
for
City
related
business
and/or
functions
during,
before
and
after
normal
work
hours.
The
City
Manager
is
not
precluded
from
using
City
vehicles
for
City
business
during,
before,
and
after
the
normal
workday
on
occasion,
when
appropriate.
(4)
Benefits
that
Accrue
to
Other
Employees
The
City
Manager
shall
be
entitled
to
all
benefits,
rights,
and
privileges
accorded
to
non
public
safety
City
Department
Directors
except
as
otherwise
provided
in
this Agreement.
If
there
is
any
conflict
between
this
Agreement
and any
resolution
fixing
compensation
and
benefits
for
non--
public
safety
City
Executive
Management
employees
or
other
non--
classified
employees,
this
Agreement
shall
control.
5. SECURITY A.
Pensions (1)
Public
Employees
Retirement
System
(PERS)
For
the
purposes
of
PERS
reporting,
the
City
shall
incorporate
into
the
reported
base
pay
as
compensation
earnable,
but
only
to
the
extent,
if
any,
that
PERS
will
consider
it
to
be
compensation
eamable,
the
Section
4.A(l)
base
pay.
City
Manager
is
a Tier
2 classic
member
of
CalPERS
(';PERS"),
and
as
such,
City
Manager
is
obligated
to
contribute
to
PERS
at
the
same
level
as
all
other
classic
PERS
members
in
the
City's
Management/Confidential
Group
1,
which
is
currently
8%
of
base salary.
(2)
Pre-Retirement
Optional
Settlement
2W
Death
Benefit
This
benefit
will
be
provided
by
the
City.
10 of
21 6
April 16, 2024, Item #6
(3)
Deferred
Compensation
(a)
Section
457
Plan
The
City
will
make,
in
equal
proportionate
amounts
each
pay
period,
a
pro-rated
total
annual
contribution
of
$20,000
into
a qualified
Section
457
Plan
from
one
of
the
City
approved
plans
as
selected
by
the
City
Manager,
$19,000
of
which
shall
be
pursuant
to
the
generally
applicable
annual
limit,
and
the
remaining
$1,000
as
an
age
50 or
older
"catch
up"
contribution.
Amounts
contributed
under
this
section
shall
be
to
the
benefit
of
the
City
Manager
in
accordance
with
the
Deferred
Compensation
Plan
participation
agreement.
(b)
Internal
Revenue
Code
Compliance
All
provisions
of
this
Section
5(A)
are
subject
to
the
provisions
and
limitations
of
the
Internal
Revenue
Code
and
its
related
regulations
as
amended
from
time
to
time.
No
requirement
of
any
provision
of
this
Section
S(A)
shall
be
effective
if
it
would
violate
any
provision
of
the
Internal
Revenue
Code
or
its
related
regulations.
B.
Insurance (I)
Disability
Insurance
Short
and
Long-Term
Insurance
is
provided.
6. SEPARATION A.
Resignation/Retirement
The
City
Manager
may
resign
at
any
time
and
agrees
to
give
the
City
at
least
45 days'
advance
written
notice
of
the
effective
date
of
the
City
Manager's
resignation,
unless
the
Parties
otherwise
agree
in
writing.
If
the
City Manager
retires
from
full
time
public
service
with
the
City,
the
City
Manager
may
provide
six
months'
advance
notice.
The
City
Manager's
actual
retirement
date
will
be
mutually
established.
B.
Termination
&
Removal
(I)
Manager
is
an
at-will
employee
serving
at
the
pleasure
of
the
City
Council
as
provided
in
Government
Code
Section
36506.
(2)
The
City
Council
may
remove
the
City
Manager
at
any
time,
either
with
or
without
cause,
by
a majority
vote
of
its
members
at
a noticed
and
conducted
meeting
of
the
City
Council.
Notice
of
termination
shall
be provided
to
the
City
Manager
in
writing.
The
City
Council
may
also
elect
not
to
renew
this
Agreement.
Notice
of
nonrenewal
shall
also
be
provided
to
the
City
Manager
in
writing.
The
City
Council
understands
that
tennination
or
nonrenewal
of
employment
without
cause
could
result
in
an
adverse
financial
impact
not
completely
mitigated
by
any
severance
compensation
as
provided
in
this
Agreement.
Therefore,
the
City
Council
agrees
that
if
termination
or
nonrenewal
is
made
without
cause
it
shall
provide
not
less
than
180
days'
notice
of
tennination
or
nonrenewal
to
the
City
Manager.
If
the
City
Manager
resigns
after
11 of
21 7
April 16, 2024, Item #6
receiving
notice
of
termination,
the
resignation
shall
be
considered
"involuntary"
as
described
in
Section
6(0)
of
this
Agreement.
Termination
as
used
in
this
section
shall
also
include
a request
that
the
City
Manager
resign,
a reduction
in
salary
or
other
financial
benefits
of
the
City
Manager
(excluding
a general
City
Management
salary
reduction),
a material
reduction
in
the
powers
and
authority
of
the
City
Manager,
or
the
elimination
of
the
City
Manager's
position.
Any
such
notice
of
termination
or
act
constituting
termination
shall
be
given
at
or
effectuated
at
a duly
noticed
and
conducted
meeting
of
the
City
Council.
(3)
As
provided
in
Municipal
Code
Section
2.08.090,
the
City
Manager
shall
not
be
terminated
during
the
90-day
period
following
any
City
election
for
membership
on
the
City
Council.
C.
Severance
Pay
(1)
In
the
event
the
City
Manager
is
terminated
by
the
City
Council
during
such
time
that
the
City
Manager
is
willing
and
able
to
perform
the
City
Manager's
duties
under
this
Agreement,
and
the
City
Manager
signs,
deliyers
to
the
City
Council
and
does
not
revoke,
the
General
Release
Agreement
in
the
form
attached
hereto
as
Exhibit
A
(the
"Release"),
the
City
shall
pay
the
City
Manager
a
lump
sum
cash
payment
equal
to
the
lesser
of
(a)
the
actual
number
of
months'
salary
remaining
on
the
current
term
of
employment
and
the
cash
equivalent
of
health
(medical,
dental
and
vision)
benefits
for
that
same
period,
or
(b)
twelve
(12)
months'
base
salary
and
cash
equivalent
of
health
(medical,
dental
and
vision)
benefits
then
in
effect
as
provided
in
Section
4(A)
above.
Such
severance
compensation
is
expressly
contingent
on
the
execution,
delivery,
and
non-revocation
of
the
Release.
It
is
the
intention
of
the
parties
that
this
paragraph
complies
with
the
requirements
of
Government
Code
Section
53260
et
seq.
In
the
event
of
any
conflict
between
this
provision
and
those
code
sections,
the
terms
of
those
code
sections
shall
govern
the
contractual
relationship
between
the
employer and
employee
.
(2)
In
addition,
the
City
shall
extend
to
the
City
Manager
the
right
to
continue
health
insurance
as
may
be
required
by
and
pursuant
to
the
terms
and
conditions
of
the
Consolidated
Omnibus
Budget
Reconciliation
Act
of
1986
(COBRA).
(3)
In
the
event
the
City
refuses,
following
written
notice
of
non-compliance,
to
comply
with
any
provision
in
this
Employment
Agreement
benefiting
the
City
Manager,
or
the
City
Manager
resigns
following
a suggestion,
whether
formal
or
informal,
by
a
majority
of
the
City
Council
that
the
City
Manager
resign,
then,
in
that
event,
the
City
Manager
may,
at
the
City
Manager's
option,
be
deemed
to
be
"terminated"
as
of
the
date
of
such
refusal
to
comply
or
suggestion
to
resign
and
this
severance
pay
provision
shall
be
actuated.
( 4)
All
payments
required under
this
Section
6 are
subject
to
and
shall
be
interpreted
to
comply
with
the
limitations
set
forth
in
Government
Code
Section
53260.
(5)
This
section
does
not
apply
to
the
decision
of
the
City
Council
not
to
renew
the
City Manager's
term
upon
its
expiration.
12 of
21 8
April 16, 2024, Item #6
D.
Involuntary
Resignation
(1)
In
the
event
that
the
City
Council
fonnally
or
a majority
of
the
City
Council
informally
asks
the
City
Manager
to
resign,
then
the
City
Manager shall
be
entitled
to
resign
and
stilJ
receive
the
severance
benefits
provided
in
Section
6(C)
above.
(2)
The
City
Manager
has
relied
upon
the
provisions
of
the
Municipal
Code
upon
entering
into
this
Agreement,
as
it
pertains
to
the
City
Manager's
role,
powers,
duties,
authority,
responsibilities,
compensation, and
benefits.
In
the
event
the
City
Council
adds,
deletes
or
amends
the
Municipal
Code
without
the
consent
of
the
City
Manager,
and
such
addition,
deletion
or
amendment
is
inconsistent
with
the
tenns
of
this
Agreement
and
the
City
Manager's
role,
powers,
duties,
authority,
responsibilities,
compensation
and
benefits
as
currently
provided,
then
the
City
Manager
shall
have
the
right,
at
the
City
Manager's
sole
option,
to
give
the
City
Council
notice
that
such
amendment(s)
constitute
a
request
by
the
City
Council
for
the
City
Manager's
· involuntary
resignation.
(3)
Upon
receipt
of
such
notice
the
City
Council
shall
have
thirty
days
in
which
to
do
one
of
the
following:
(a)
rescind
the
amendment(s);
(b)
renegotiate
this
Agreement
to
the
City
Manager's
satisfaction;
(c)
confirm
that
the
City
Manager
is
being
asked
to
involuntarily
resign;
or
(d)
take
no
action.
In
the
event
that
either
(c)
or
(d)
occurs,
or
the
City
is
unable
to
accomplish
(b),
then
the
City
Manager
is
entitled
to
resign
and
still
receive
the
severance
benefits
provided
in
Section
6(C)
above
.
E.
Separation
for
Cause
(1)
Notwithstanding
the
provisions
of
Section
6(C),
the
City
Manager
may
be
terminated
for
cause.
As
used
in
this
section,
"cause"
shall
mean
only
one
or
more
the
following:
(a)
Conviction
of,
or
no
contest
plea
to,
a felony;
(b)
Conviction
of,
or
no
contest
plea
to,
any
illegal
act
involving
moral
turpitude
or
personal
gain; ( c)
Continued
abuse
of
non-prescription
drugs
or
alcohol
that
materially
affects
the
performance
of
the
Manager's
duties;
( d)
Any
act
constituting
a
knowing
and
intentional
violation
of
the
City's
conflict
of
interest
code;
or
(e)
Repeated
and
protracted
unexcused
absences
from
the
City
Manager's office
and
duties;
(2)
In
the
event
the
City
terminates
the
City
Manager
for
cause,
then
the
City
may
terminate
this
Agreement
immediately,
and
the
City
Manager
shall
be
entitled
to
only
the
compensation
accrued
up
to
the date
of
termination,
payments
required
by
Section
6(F)
below,
and
such
other
termination
of
benefits
and
payments
as
may
be
required
by
law.
The
City
Manager
shall
not
be
entitled
to
any
severance
benefits
provided
by
Section
6(C).
13 of
21 9
April 16, 2024, Item #6
(3)
If
the
City
Manager
is
terminated
for
cause,
and
"cause"
meets
the
definition
of
"abuse
of
office
or
position,"
as
defined
in
Government
Code
section
53243.4,
the
provisions
of
Government
Code
sections
53243
through
53243.4
shall
apply
and
prevail
over
any
contrary
terms
and
conditions
of
this
Agreement.
F.
Payment
for
Unused
Leave
Balance
(1)
On
separation
from
City
employment,
the
City
Manager
shall
be
paid
for
unused
accmed
leave
allowances
provided
in
Section
4(B)(2)
above
in
accordance
with
the current
salary
and
benefits
plan
for
Management/Confidential
Group
1 employees.
Accumulated
leave
balances
shall
be
paid
at
the
City
Manager's
monthly
base
salary
rate
at
the
effective
date
of
separation.
(2)
In
the
event
the
City
Manager
dies
while
employed
by
the
City
under
this
Agreement,
the
City
Manager's
beneficiaries
or
those
entitled
to
the
City
Manager's
estate,
shall
be
entitled
to
the
City
Manager's
earned
salary,
and
any
in-lieu
payments
for
accrued
benefits,
including
compensation
for
the
value
of
all
accrued
leave
balances.
G.
Joint
Statements
of
Separation
In
the
event
of
resignation
or
retirement
ofthe
City
Manager,
termination
by
the City
(with
or
without
cause),
or
other
separation
of
employment
as
described
in
the
Section
6,
the
City
and
the
City
Manager
agree
that
neither
any
member
of
the
City
Council,
or
the
City's
management
staff,
nor
the
City
Manager,
shall
make
any
written,
oral
or
electronic
statement
to
any
member
of
the
public,
the
press
, or
any
City
employee
concerning
the
City
Manager's
termination
or
separation,
except
in
the
form
of
a
joint
press
release
or
statement,
the
contents
of
which
is
mutually
agreeable
to
both
the
City
and
the
City
Manager.
The
joint
press
release
or
statement
shall
not
contain
any
text
or
information
that
is
disparaging
to
either
Party
.
Either
Party
may
verbally
repeat
the
substance
of
this
Section
6(0),
and
the
joint
press
release
or
statement,
in
response
to
any
inquiry.
7. MISCELLANEOUS
PROVISIONS
A.
Term
The
initial
tenn
of
this
Agreement
shall
be
for
a period
of
thirty-six
(36)
months
beginning
12:00
a.m.
May
6,
2019
and
continuing
until
12:00
a.m.
May
6,
2022
(the
"initial
Termination
Date").
B.
Subsequent
Terms
Unless
the
City
gives
the
City
Manager
written
notice
of
non-renewal
at
least
180
days
prior
to
the
initial
Tennination
Date
or
the
tennination
date
of
any
Renewal
Term
(as
hereinafter
defined)
this
Agreement
may
be
renewed
by
the
parties
for
one
or
more
additional
tenns
of
up
to
three
(3)
years
each,
each
renewal
term
to
be
reflected
by
a written
amendment
signed
by
the
parties.
If
the
parties
cannot
mutually
agree
to
the
tenn
of
any
renewal
this
Agreement
shall
continue
in
effect
for
automatic renewals
of
one
( 1)
year
each
( whether
renewed
by
amendment
or
renewed
by
operation
of
this
Section
each
, a "Renewal
Term")
.
14 of
21 10
April 16, 2024, Item #6
C.
Provisions that
Survive
Termination
Many
sections
of
this
Agreement
are
intended
by
their
tenns
to
survive
the
City
Manager's
termination
of
employment
with
the
City,
including
but
limited
to
Sections
6 and
7(E).
These
sections,
and
the
others
so
intended,
shall
survive
termination
of
employment
and
termination
of
this
Agreement.
D.
Amendments
This
Agreement
may
be
amended
at
any
time by
mutual
agreement
of
the
City
and
the
City
Manager.
Any
amendments
are
to
be
negotiated,
put
in
writing,
and
adopted
by
the
City
Council.
E.
Conflict
of
Interest
(1)
The
City Manager
shall
not
engage
in
any
business
or
transaction
or
have
a
financial
or
other
personal
interest
or
association,
direct
or
indirect,
which
is
in
conflict
with
the
proper
discharge
of
official
duties
or
would
tend
to
impair
independence
of
judgment
or
action
in
the
performance
of
official duties.
(2)
The
City
Manager
shall
also
be
subject
to
the
conflict
of
interest
provisions
of
the
California
Government
Code
and any
conflict
of
interest
code
applicable
to
the
City
Manager's
City
employment. (3)
The
City
Manager
is
responsible
for
submitting
to
the
City
Clerk
the
appropriate
Conflict
of
Interest
Statements
at
the
time
of
appointment,
annually
thereafter,
and
at
the
time
of
separation
from
the
position.
F.
Indemnification (l)
To
the
full
extent
of
the
law,
the
City
shall
defend
and
indemnify
the
City
Manager,
in
his
capacity
as
City
Manager, and
as
the
chief
executive
of
other
City-related
legal
entities
as
provided
in
Section
3(A)(l)(c)
above,
against
and
for
all
losses
sustained
by
the
City
Manager
in
direct
consequences
of
the
discharge
of
the
City
Manager's
duties
on
the
City's
behalf
for
the
period
of
the
City
Manager's
employment,
save
and
except
those
losses
sustained
as
a result
of
the
willful
act
or
omission
of
the
City
Manager,
including
any
"abuse
of
office
or
position,"
as
described
in
Section
6(E)(3)
of
this
Agreement.
(2)
The
City
shall
defend,
save
harmless
and
indemnify
the
City
Manager
against
any
tort,
professional
liability
claim,
or
demand
or
other
legal
action,
whether
groundless
or
otherwise,
arising
out
of
an
alleged
act
or
omission
occurring
in
the
performance
of
the
City
Manager's
duties
as
City
Manager.
The
City
may
compromise
and
settle
any
such
claim
or
suit
and
pay
the
amount
of
any
settlement
or
judgment
rendered
thereon.
(3)
Whenever
the
City
Manager
shall
be
sued
for
damages
arising
out
of
the
performance
of
the
City
Manager's
duties,
the
City
shall
provide
defense
counsel
for
the
City
Manager
in
such
suit
and
indemnify
the
City
Manager
from
any
judgment
rendered
against
the
City
Manager;
provided
that
such
indemnity
shall
not
extend
to
any
judgment
for
damages
arising
out
of
any
willful
wrongdoing.
This
indemnification
shall
extend
beyond
termination
of
15 of
21 11
April 16, 2024, Item #6
employment
and the
otherwise
expiration
of
this
Agreement
to
provide
protection
for
any
such
acts
undertaken
or
committed
in
the
City
Manager's
capacity
as
City
Manager,
regardless
of
whether
the
notice
of
filing
of
a
lawsuit
occurs
during
or
following
employment
with
the
City.
This
indemnity
provision
shall
survive
the
termination
of
the
Agreement
and
is
in
addition
to
any
other
rights
or
remedies
that
the
City
Manager
may
have
under
the
law.
(4)
The
City
and
all
parties
claiming
under
or
through
it: hereby
waives
all
rights
of
subrogation
and
contribution
against
the
City
Manager,
while
acting
within
the
scope
of
the
City
Manager's
duties
, from
all
claims,
losses
and
liabilities arising
out
of
or
incident
to
activities
or
operations
performed
by
or
on
behalf
of
the
City
or
any
party
affiliated
with
or
otherwise
claiming
under
or
through
it,
regardless
of
any
prior,
concurrent,
or
subsequent
active
or
passive
negligence
by
the
City Manager.
G.
Severability
If
any
clause,
sentence,
part,
section,
or
portion
of
this
Agreement
is
found
by
a court
of
competent
jurisdiction
to
be
illegal
or
unenforceable,
such
clause,
sentence,
part,
section,
or
portion
so
found
shall
be
regarded
as
though
it
were
not
part
of
this
Agreement
and the
remaining
parts
of
this
Agreement
shall
be
fully
binding
and
enforceable
by
the
Parties
hereto.
H.
Laws
Affecting
Title
In
addition
to
those
laws
affecting
a City
Manager,
the
City
Manager
shall
have
the
same
powers,
rights
and
responsibilities
as
a
Chief
Executive
Officer,
City
Administrative
Officer,
Administrator,
and
City
Administrator
as
those
terms
are
used
in
local,
state
or
federal
laws.
I.
Jurisdiction
and
Venue
This
Contract
shall
be
construed
in
accordance
with
the
laws
of
the
State
of
California,
and
the
Parties
agree
that
venue
shall
be
in
San
Diego
County,
California,
notwithstanding
any
conflicting
provisions
of
the
California
Code
of
Civil
Procedure.
J.
Provisions
of
Government
Code
Section
53243.4
(1)
In
the
event
that
the
City
provides
paid
leave
to
City
Manager
pending
an
investigation
of
a crime
involving
abuse
of
his
office
or
position
covered
by
Government
Code
section
53243.4,
and
should
that
investigation
lead
to
either
a criminal
conviction
or
a civil
or
administrative
penalty
by
the
FPPC
or
any
similarly
authorized
agency,
City
Manager
shall
fully
reimburse
the
City
for
any
salary
provided
for
that
purpose.
(2)
In
the
event
that
the
City
provides
funds
for
the
legal
criminal
defense
of
City
Manager
pending
an
investigation
of
a crime
involving
abuse
of
his
office
or
position
covered
by
Government
Code
section
53243.4,
and
should
that
investigation
lead
to
either
a
criminal
conviction
or
a civil
or
administrative
penalty
by
the
FPPC
or
any
similarly
authorized
agency,
City
Manager
shall
fully
reimburse
the
City
for
any
funds
provided
for
that
purpose.
(3)
In
the
event
that
the
City
provides
City
Manager
with
severance,
or
any
other
type
of
cash
settlement
related
to
the
termination
of
City
Manager,
and
City
Manager
16 of
21 12
April 16, 2024, Item #6
subsequently
is
convicted
of
a crime,
or
subjected
to
civil
or
administrative
penalties,
resulting
from
abuse
of
his
office
or
position
covered
by
Government
Code section
53243.4,
City
Manager
shall
fully
reimburse
the
City
for
any
such
severance
or
cash
settlement.
K.
Entire
Agreement
This
Contract
represents
the
entire
agreement
of
the
Parties,
and
no
representations
have
been
made
or
relied
upon
except
as
set
forth
herein.
This
Contract
may
be
amended
or
modified
only
by
a written,
fully
executed
agreement
of
the
Parties.
17 of
21 13
April 16, 2024, Item #6
IN WITNESS WHEREOF the Parties have executed this Agreement as of the day and year first above written.
CITY OF POWAY CITY MANAGER
s.
Steve Vaus, Mayor
ATTEST:
APPROVED AS TO FORM:
Alan Fenstermacher, City Attorney
18 of 21 14
April 16, 2024, Item #6
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Release Agreement") is entered into by and between CHRISTOPHER HAZELTINE ("Manager") and CITY OF POWAY, a general law city and municipal corporation ("City"), in light of the following facts:
A. Manager and City have previously entered into that certain City Manager Employment Agreement Between the City of Poway, a Municipal Corporation, and Christopher Hazeltine, dated April 2, 2019 (the "Employment Agreement"), setting forth the terms and conditions of City's employment of Manager as its City Manager.
B. As part of the consideration in the Employment Agreement the parties agreed to the terms and conditions of this Release Agreement in the event that Manager's employment with City was terminated under certain circumstances.
C. Manager's employment with City concluded on __
D. Certain disputes have arisen between City and Manager.
E. City and Manager each deny any liability whatsoever to the other.
F. City and Manager wish to fully and finally resolve any and all disputes they may have with each other.
G. Manager is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. City hereby advises Manager to consult with his legal counsel before signing this Agreement.
H. Manager acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired.
I. Manager acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement.represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination (the "Salary Payment"). Manager also acknowledges that City has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement.
FOR GOOD AND VALUABLE CONSIDERATION, INCLUDING THE
COVENANTS CONTAINED HEREIN, MANAGER AND CITY HEREBY AGREE AS FOLLOWS:
1. Receipt of Salary Payment. Manager hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from City.
19 of 21 Exhibit A
April 16, 2024, Item #6
2. Severance.
Within
seven
(7)
days
following
Manager's
signing
and
delivering
this
Release
Agreement
to
the
City,
and
provided
that
Manager
has
not
revoked
this
Release
Agreement
during
the
Revocation
Period,
City
shall
pay
Manager
the
gross
amount
provided
for
in
Section
6(C)
of
the
Employment
Agreement
(the
"Severance"),
less
applicable
deductions.
Manager
acknowledges
that
the
Severance
is
in
addition
to
all
amounts
earned
by
Manager,
and
due
and
owing
him
as
a result
of
his
employment
by
City,
including
the
Salary
Payment.
3. General
Release.
In
consideration
of
the
Severance
to
be
paid
and
provided
to
Manager,
and
other
good
and
valuable
consideration,
Manager
hereby
releases
and
discharges
City
and
its
past
and
present
elected
and
appointed
officers,
officials,
employees,
representatives
and
agents,
from
all
rights,
claims,
causes
of
action,
and
damages,
both
known
and
unknown,
in
law
or
in
equity,
concerning
and/or
arising
out
of
his
employment
by
City
which
he
now
has,
or
ever
had,
including
but
not
limited
to
any
rights,
claims,
causes
of
action
or
damages
arising
under
Title
VII
of
the
Civil
Rights
Act
of
1964,
the Vocational
Rehabilitation
Act
of
1973,
the
Employee
Retirement
Income
Security
Act,
the
Americans
with
Disabilities
Act,
the Age
Discrimination
in
Employment
Act,
the
Older
Workers
Benefits
Protection
Act,
the
Family
and
Medical
Leave
Act
of
1993,
the
Domestic
Partners
Act
of
2003,
the
California
Labor
Code,
the
Private
Attorneys
General
Act
of
2004,
the
California
Moore-Brown-Robert
Family
Rights
Act,
the
California
Unruh
Civil
Rights
Act,
the
California
Fair
Employment
and
Housing
Act,
any
other
federal,
state,
or
local
employment
practice
legislation,
or
any
federal
or
state
common
law,
including
wrongful
discharge,
breach
of
express
or
implied
contract,
or
breach
of
public
policy.
Manager
hereby
waives
and
relinquishes
all
rights
and
benefits
afforded
by
section
1542
of
the
Civil
Code
of
California.
Manager
understands
and
acknowledges
the
significance
and
consequences
of
this
specific
waiver
of
section
1542.
Section
1542
of
the
Civil
Code
of
California
states
as
follows:
"A
general
release
does
not
extend
to
claims
which
the
creditor
does
not
know
or
suspect
to
exist
in
his
or
her
favor
at
the
time
of
executing
the
release,
which
if
known
by
him
or
her
must
have
materially
affected
his
or
her
settlement
with
the
debtor."
Notwithstanding
the
provisions
of
section
1542,
and
for
the
purpose
of
implementing
a full
and
complete
release
and
discharge
of
City
and
its
past
and
present
elected
and
appointed
officers,
officials,
employees,
representatives
and
agents,
Manager
expressly
acknowledges
that
this
General
Release
is
intended
to
include
in
its
effect,
without
limitation,
all
claims
which
he
does
not
know
or
suspect
to
exist
in
his
favor.
Manager
further
acknowledges
that
he
has
read
this
General
Release
and
that
he
understands
that
this
is
a general
release,
and
that
he
intends
to
be
legally
bound
by
the
same.
20 of
21 Exhibit
A
April 16, 2024, Item #6
4. Fees
and
Costs.
Manager
and
City
agree
that
in
the
event
of
litigation
relating
to
this
Release
Agreement,
the
prevailing
party
shall
be
entitled
to
recover
his/its
reasonable
attorneys'
fees
and
costs.
Dated:
April
2,
2019
CITY
OF
POWAY
CITY
MANAGER
Steve
Vaus,
Mayor
ATTEST: APPROVED
AS
TO
FORM:
Alan
Fenstennacher,
City
Attorney
Exhibit
A
21 of
21