ACTION:
____________________________
Clerk/Secretary
Department: City Attorney Item No: C1
Prepared by: Walter Chung, City Attorney Meeting Date: March 7, 2023 Approved by: Walter Chung, City Attorney Agenda Location: Consent Calendar SUBJECT: APPROVAL OF CITY MANAGER EMPLOYMENT AGREEMENT RECOMMENDATION: Adopt City Council Resolution No. 2023- , appointing John Conley as City Manager.
CORRELATION TO CITY COUNCIL GOALS: Routine operational item not directly corresponding to a specific City Council goal.
PRIOR ACTION: On February 28, 2023, in closed session, the City Council appointed John Conley City Manager subject to the employment agreement being approved in an open session meeting of the City Council (Vote: 3-2).
STATEMENT ON THE SUBJECT: On March 8, 2023, City Manager Patrick Johnson’s tenure with the City will end. In preparation for that, the City Council has been conducting a search for a new City Manager. As a result of that search, the City Council has determined that John Conley has the necessary education, experience, skills and expertise to serve as the City's City Manager. To effectuate this, the City and John Conley wish to enter into the attached employment agreement.
FISCAL IMPACT: The annual cost for salary and benefits included in the City Manager contract has been budgeted as a part of the FYs 2023/24 and 2024/25 Operating Budget.
EXHIBITS:
1.City Council Resolution No. 2023- , appointing John Conley as City Manager
2.City Manager Employment Agreement with John Conley
AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
03/07/2023 C1 Page 1 of 17
Approved above recommendation, appointing John Conley as City Manager, and adopted City Council Resolution No. 2023-25. Vote: 5-0
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF VISTA,
CALIFORNIA, APPOINTING JOHN CONLEY AS CITY MANAGER
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. Patrick Johnson's tenure as City Manager will end on March 8, 2023.
B. John Conley has the requisite background, education and experience for the position of City Manager.
C. The City Council desires to appoint John Conley as City Manager.
2. Action.
A. The City Council appoints John Conley as City Manager at the annualized salary of$280,000.
B. The Mayor is authorized to execute the employment agreement with John Conley.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on March 7, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
JOHN FRANKLIN, MAYOR
APPROVED AS TO FORM: ATTEST:
WALTER C. CHUNG, CITY ATTORNEY KATHY VALDEZ, CITY CLERK By: By:
APPROVED
Walter C.Chung
20230302084440
001106721 EXHIBIT 1
03/07/2023 C1 Page 2 of 17
CITY MANAGER EMPLOYMENT AGREEMENT
By and Between the City of Vista and John Conley
1. Parties and Date
This City Manager Employment Agreement by and between the City of Vista, a chartered municipal corporation ("City,") and John Conley, an individual ("Conley,") is entered into as of March 7, 2023 ("Agreement.")The City and Conley are sometimes individually referred to as a "Party" and collectively as "Parties."
A. The City requires the services of a City Manager.
B. Conley has the necessary education, experience, skills and expertise to serve as the City's City Manager.
C. The City Council of the City ("City Council") desires to employ Conley to serve as the City Manager.
D. The Parties desire to execute this Agreement pursuant to the authority of and subject to the provisions of Section 200 of the Charter of the City of Vista ("City Charter") and Chapter 2.20 of the Vista Municipal Code ("Vista Municipal Code").
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 Conley as its City Manager, and Conley hereby accepts such employment. This Agreement shall become effective on March 8, 2023 ("Effective Date.")
3. Commitments and Understandings
A. Conley's Commitments
(1) Duties and Authority
(a) Conley shall be the chief executive officer of the City and be responsible to the City Council for the proper administration of all affairs of the City.
(b) Conley shall perform all of the duties of the City Manager as set forth in the City Charter, the Vista 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 may also designate Conley as the chief executive of other City-related legal entities. Such other legal entities could 00110668 1 Page 1
001106681
03/07/2023 EXHIBIT 2 C1 Page 3 of 17
include financing authorities,joint powers authorities, etc. (d) Conley shall administer and enforce policies established by the City Council and promulgate rules and regulations as necessary to implement City Council policies.
(e) To accomplish this, Conley shall have the power and shall 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. Conley shall receive notice of all regular and special meetings of the City Council.
(ii) Review all agenda documents before preparing the agenda for any regular or special meetings of the City Council. Conley may publicly endorse or oppose any proposed agenda items placed on the agenda by persons other than Conley or his staff.
(iii) Direct the work of all elective and appointive 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. Conley may undertake any study or investigation Conley believes is necessary or desirable and shall make any study or investigation the City Council directs.
Conley shall endeavor to implement changes that he believes will result in greater efficiency, economy, or improved public service in the administration of City affairs.
(iv) Recommend to the City Council from time to time, 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 Conley's jurisdiction. Conley 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.
00110668 1 Page 2
001106681
03/07/2023 C1 Page 4 of 17
(viii) Exercise control of City government in emergencies as authorized by the Municipal Code and California law.
(2) Hours of Work
(a) Conley is an exempt employee but is expected to engage in those hours of work that are necessary to fulfill the obligations of his position. Conley does not have set hours of work as the City Manager is expected to be available at all times.
(b) It is recognized that Conley must devote time to the business of the City outside of the City's customary office hours, and to that end Conley's schedule of work each day and week shall vary in accordance with the work required to be performed. Conley shall spend sufficient hours on site to perform his duties; however, Conley has discretion over his work schedule and work location. (c) Conley shall not spend more than 12 hours per month in teaching, consulting, speaking, or other non-City connected business for which compensation is paid without the express prior consent of the City Council.
(3) Disability or Inability to Perform
In the event Conley becomes mentally or physically incapable of performing his functions and duties with reasonable accommodation and it reasonably appears such incapacity will last for more than six months, the City Council may terminate Conley. If the City Council does elect to terminate Conley due to incapacity, Conley shall receive all severance benefits provided in Section 7.0 below.
B. City Commitments
(1) The City shall provide Conley with the compensation, incentives and benefits, specified elsewhere in this Agreement.
(2) The City shall provide Conley with a private office, secretary, staff, office equipment, supplies, automobile allowance, and all other facilities and services.
(3) The City shall pay for or provide Conley reimbursement for all actual business expenses. The City shall provide Conley a City credit card to charge appropriate and lawful business expenses.
(4) The City agrees to pay the professional dues and subscriptions on behalf of Conley which are necessary for his continuation and full participation in national, regional, state, or local associations and organizations necessary and desirable for the good of the City, and for Conley's continued 00110668 1 Page 3
001106681
03/07/2023 C1 Page 5 of 17
professional participation and advancement.
(5) The City agrees to pay the travel and subsistence expenses of Conley to pursue official and other functions for the City, and meetings and occasions to continue the professional development of Conley, including, but not limited to, national, regional, state, and local conferences, and governmental groups and committees upon which Conley serves as a member.
(6) The City also agrees to pay for the travel and subsistence expenses of Conley for short courses, institutes and seminars that are necessary for the good of the City or for the professional development of Conley. (7) The City recognizes the desirability of representation in and before local civic and other organizations, and Conley is authorized to become a member of civic clubs or organizations, for which the City shall pay membership dues. (8) Given the importance of technological tools to the effective and efficient business of City government, the City shall provide computer, laptop and/or tablet computer, high-speed internet access, cellular phone, electronic calendar, copy machine and similar devices to Conley at the City's expense, both at Conley's office and, with the consent of the City Council, at Conley's residence.
(9) The City's commitments under this Section 3.13 shall be subject to a budget adopted by the City Council, which budget shall consider the principles and requirements of this Agreement.
C. City Council Commitments
(1) The City Council sets policy for the governance and administration of the City, and it implements its policies through Conley.
(2) The City Council recognizes that to meet the challenges facing the City they must exercise decisive policy leadership. As one step in carrying out this leadership responsibility, the City Council commits to spending time each year outside of regular City Council meetings to work with Conley and staff on setting goals and priorities for the City government, and to work on issues that may be inhibiting the maximal achievement of City goals. (3) 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 Conley or his designee, and neither the City Council nor any member thereof shall give orders to any subordinate of Conley, either publicly or privately.
(4) 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 Conley.
00110668 1 Page 4
001106681
03/07/2023 C1 Page 6 of 17
(5) The City Council agrees that any criticism of a City staff member shall be done privately through Conley.
(6) Neither the City Council nor any of its members shall interfere with the execution of the powers and duties of Conley. Conley 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
(1) Performance Evaluation
(a) Annual performance evaluations are an important way for the City Council and Conley to ensure effective communications about expectations and performance.
(b) The City Council recognizes that for Conley to respond to its needs and to grow in the performance of his job, Conley needs to know how the City Council Members evaluate Conley's performance. (c) To assure that Conley gets this feedback, the City Council shall conduct an evaluation of Conley's performance at least once each year. In Conley's first year, the City Council shall also conduct a performance evaluation six months into Conley's tenure as City Manager. The City Council and Conley agree that performance evaluations, for the purpose of mid-course corrections, may occur quarterly or several times during each calendar year.The Parties may use an outside facilitator paid by City funds to assist them in conducting this evaluation, at the option of Conley.
(d) While performance evaluations for the purpose of mid-course corrections may occur several times during the year; the annual evaluation shall occur between November and mid-December of each year.
(e) In the first quarter of each calendar year Conley and the City Council will create goals or other outcome measures that will provide the basis for determining the next year's performance results incentive. (f) The annual review and evaluation shall be in accordance with specific criteria developed jointly by the City Council and Conley.
Such criteria may be added to or deleted as the City Council may from time to time determine in consultation with Conley. (g) The City Council and Conley shall define such goals and performance objectives as they mutually determine are necessary for the proper operation of the City for the attainment of the City Council's policy objectives, and the City Council and Conley shall further establish a relative priority among those goals and 00110668 1 Page 5
001106681
03/07/2023 C1 Page 7 of 17
performance objectives.
(2) ICMA Code of Ethics
(a) The Parties acknowledge that Conley is or will become a member of the International City Management Association ("ICMA"). The Parties mutually desire that Conley be subject to and comply with the ICMA Code of Ethics.
(b) Conley 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 Conley any order, direction, or request that would require Conley to violate the ICMA Code of Ethics.
4. COMPENSATION
The City agrees to provide the following compensation to Conley during the term of the agreement:
A. Compensation & Reauired Employer Costs
(1) Base Salary
The annual salary for the position of Conley shall be $280,000, effective at the beginning of the first pay period following the Effective Date of this Agreement ("Annual Salary").
(a) Conley shall be paid at the same intervals and in the same manner as regular City employees.
(b) Notwithstanding the City's salary table or general City management salary reductions, the annual salary of Conley shall never be less than the second highest salary paid to any City employee (excluding overtime and any incentive compensation). (c) The City shall not at any time during the term of this Agreement reduce the base salary, compensation or other financial benefits of Conley, unless as part of a general City management salary reduction, and then in no greater percentage than the average reduction of all City department directors.
(2) Reauired Employer Costs
(a) Federal Insurance Contributions Act(FICA) (if applicable). (b) Unemployment Compensation.
00110668 1 Page 6
001106681
03/07/2023 C1 Page 8 of 17
(c) Group health insurance
(d) Public Employees Retirement System (PERS). The City contracts with the California Public Employees' Retirement System for retirement benefits.
(e) The cost of any fidelity or other bonds required by law for Conley.
(f) The cost to defend and indemnify Conley as provided in Section 8.E below.
(g) Workers Compensation.
B. Basic Benefits
(1) Plan Benefits
Conley shall be entitled to all benefits, rights, and privileges accorded under the City's Management and Confidential Employee Compensation Plan, for Appointed Management Employees as the same may be increased, but not decreased, from time to time, except as otherwise provided in this Agreement. If there is any conflict between this Agreement and any subsequent Management and Confidential Employee Compensation Plan that would result in a decrease in compensation or benefits for Conley, then this Agreement shall control. In the event of material modifications to the Management and Confidential Employee Compensation Plan that would negatively affect the benefits of the City's management employees to a material degree, Conley and the City Council will reevaluate the scope of this provision.
(2) Vacation Leave Allowance
Conley shall accrue vacation leave credits per the Management and Confidential Employee Compensation Plan effective upon the execution of this Agreement,and Conley shall thereafter accrue vacation leave not to exceed 400 hours of accrued leave. Per the City's Management and Confidential Employee Compensation Plan, Conley may sell back up to 80 hours of accrued vacation annually.
(3) Administrative Leave Allowance
Conley shall accrue administrative leave at the maximum annual rate applicable to any Appointed Management Employee.
(4) Automobile
Conley shall be provided a monthly automobile allowance of $500 in 00110668 1 Page 7
001106681
03/07/2023 C1 Page 9 of 17
exchange for making a vehicle available for Conley's own use and for City-related business and/or functions during, before and after normal work hours. Conley, in making Conley's personal automobile available for use, is not precluded from using City vehicles for City business during, before, and after the normal workday on occasion, when appropriate. (5) Cellular Telephone Allowance
Conley shall be provided a monthly cellular telephone allowance of $90 in exchange for making a cellular telephone available for Conley's own use and for City-related business.
C. Physical Exam/Fitness
To foster Conley's good health, the City will cover the cost of a full, comprehensive physical exam each year for Conley not to exceed $2,000.
5. SECURITY
A. Pensions
(1) Public Employees Retirement System (PERS)
(a) 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 earnable, all payments to Conley for the following: cafeteria plan contributions, and deferred compensation, as well as Section 4.A(1) base pay. (2) Deferred Compensation
(a) Section 457 Plan
The City will make, in equal proportionate amounts each pay period, an annual contribution equal to the maximum contribution allowed by the Internal Revenue Code and its related regulations (including any age-related and "catch-up" provisions that are now or may in the future become applicable) into a qualified Section 457 Plan from one of the City approved plans as selected by Conley. 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 5.A shall be effective if it would violate any provision of the 00110668 1 Page 8
001106681
03/07/2023 C1 Page 10 of 17
Internal Revenue Code or its related regulations, and the inability of the City to effectuate such requirements shall not constitute a breach of this Agreement.
B. Insurance
(1) Medical Insurance
City shall pay 100% of the cost of the medical and dental insurance for Conley and his family. The insurance provided shall be the plan or plans that offer the highest level of benefits and flexibility offered by the City. (2) Life Insurance
The City will endeavor to obtain a term life insurance policy in the amount of $500,000 with the premium to be paid by the City. The policy shall be structured, if possible, such that Conley, at Conley's own expense, may purchase additional coverage at the same or more favorable rates. In the event that this level of life insurance is not attainable due to Conley's health condition, age, or other factors beyond the City's control, this benefit shall be obtained at a lesser amount that is attainable.
6. ALLOWANCES
A. Professional Services Allowances
(1) Termination of Employment
Upon termination of Conley's employment by the City for any reason other than Conley's voluntary resignation, the City shall pay Conley the sum of $2,500 to compensate Conley for costs incurred by Conley in obtaining legal review, benefits review, or other professional advisory or personal counseling services which Conley elects to utilize in connection with the termination, including the review and negotiation of any separation-related agreements with the City.
7. SEPARATION
A Resignation/Retirement
Conley may resign at any time and agrees to give the City at least 60 days advance written notice of the effective date of Conley's resignation, unless the Parties otherwise agree in writing. If Conley retires from full time public service with the City, Conley may provide six months' advance notice. Conley's actual retirement date will be mutually established.
B. Termination & Removal
(1) Conley is an at-will employee serving at the pleasure of the City Council as 00110668 1 Page 9
001106681
03/07/2023 C1 Page 11 of 17
provided in Government Code Section 36506.
(2) The City Council may remove Conley at any time, with or without cause, by a majority vote of its members. Notice of termination shall be provided to Conley in writing. Termination as used in this shall also include request that Conley resign, a reduction in salary or other financial benefits of Conley (including a general City Management salary reduction), a material reduction in the powers and authority of Conley, or the elimination of Conley's position.
Any such notice of termination or act constituting termination shall be given at or effectuated at a duly noticed regular meeting of the City Council. (3) Conley shall not be removed during the 120-day period preceding or following any City election for membership on the City Council, or during the 120-day period following any change in membership of the City Council, except upon unanimous vote of the City Council.
(4) Given the at-will nature of the position of City Manager, an important element of the employment agreement pertains to termination. It is in both the City's interest and that of Conley that any separation of Conley is done in a professional manner.
C. Severance Pav
(1) In the event Conley is terminated by the City Council during such time as Conley is willing and able to perform Conley's duties under this Agreement, then in that event the City agrees to pay Conley a lump sum cash payment equal to twelve months' then current base salary.
(2) In addition, the City shall extend to Conley 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).
The City agrees to pay Conley's COBRA coverage for the same number of months for which Conley is entitled to a lump sum cash payment under Section 7.C(1) above, or until Conley either secures full-time employment or obtains other health insurance, whichever of these three events first occurs.
Conley shall notify the City within five days of securing new full-time employment or insurance.
(3) In the event the City refuses, following written notice of non-compliance, to comply with any provision in this Employment Agreement benefiting Conley, or Conley resigns following a suggestion, whether formal or informal, by a majority of the City Council that Conley resign, then, in that event, Conley may, at Conley'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 Sections 7.C(1), (2), and (3) are subject to and shall be interpreted to comply with the limitations set forth in Government Code Section 53260.
00110668 1 Page 10
001106681
03/07/2023 C1 Page 12 of 17
(5) The Parties agree that in the event that the City were to fail or refuse to promptly and fully provide and pay to Conley all of the severance and other benefits due upon termination as provided by this Agreement, Conley would sustain material damages. These damages could include, among other losses: the loss of the opportunity to transition employment, the loss of alternate employment opportunities, the loss of income, the loss of opportunities for retraining or further education, the erosion of personal investments and savings, the loss of retirement benefits, physical displacement or the loss of a residence, the loss of insurance and medical benefits, expenses for professional counseling, the loss of standard of living including educational opportunities for children, and the resultant emotional distress to Conley and Conley's family. These damages are, and will continue to be, impracticable and extremely difficult to ascertain. Accordingly, in the event that the City shall fail or refuse to promptly and fully provide and pay to Conley all of the severance benefits or other benefits due upon termination as provided by this Agreement, then the City shall pay to Conley, as liquidated damages, a lump sum cash payment equal to 18 months' of his then current base salary in addition to all other severance benefits provided by this Agreement. Any such payments shall constitute liquidated damages only and not additional severance pay or benefits subject to the provisions of Government Code Section 53260.
D. Involuntary Separation
(1) In the event that the City Council formally or a majority of the City Council informally asks Conley to resign, then Conley shall be entitled to resign and still receive the severance benefits provided in Section 7.C, above.
E. Separation for Cause
(1) Notwithstanding any of the prior provisions, Conley may be terminated for cause. As used in this section, "cause" shall mean only one or more the following:
(a) Conviction of a felony;
(b) Continued abuse of non-prescription drugs or alcohol that materially affects the performance of the Manager's duties; or (c) Failure or refusal to carry out lawful duties assigned to the City Manager.
(2) In the event the City terminates Conley for cause, then the City may terminate this Agreement immediately, and Conley shall be entitled to only the compensation accrued up to the date of termination, payments required by Section 7.E below, and such other termination benefits and payments as may be required by law. Conley shall not be entitled to any severance benefits provided by Section 7.0 above.
00110668 1 Page 11
001106681
03/07/2023 C1 Page 13 of 17
In the event the City terminates Conley for cause, the City and Conley agree that neither Party shall make any written or oral statements to members of the public or the press concerning Conley's termination except in the form of a joint press release which is mutually agreeable to both Parties. The joint press release shall not contain any text or information that would be disparaging to either Party.
Provided, however, that either Party may verbally repeat the substance of any such press release in response to inquiries by members of the press or public.
D. Payment for Unused Leave Balance
(1) On separation from City employment, Conley shall be entitled to all benefits, rights, and privileges accorded under the City's Management and Confidential Employee Compensation Plan then in effect for Appointed Management Employees, except as otherwise provided in this Agreement. If there is any conflict between this Agreement and the then current Management and Confidential Employee Compensation Plan, this Agreement shall control.
(2) In the event Conley dies while employed by the City under this Agreement, Conley's beneficiaries or those entitled to Conley's estate, shall be entitled to Conley's earned salary, and any in-lieu payments for accrued benefits, including compensation for the value of all accrued leave balances.
8. MISCELLANEOUS PROVISIONS
A. Term
(1) Initial Term
The Initial Term shall be for a period of approximately 36 months commencing on the Effective Date and continuing until February 28, 2026, (the initial "Termination Date").
(2) Subseauent Terms
This Agreement shall automatically renew as provided herein unless the City gives Conley timely notice of non-renewal. The City must give Conley written notice of non-renewal at least 18 calendar months prior to the initial Termination Date or any succeeding Termination Date. Unless such notice of non-renewal is timely given, this Agreement shall automatically renew for an additional three-year Term, and a new Termination Date shall be accordingly established.
B. Provisions that Survive Termination
Many sections of this Agreement are intended by their terms to survive Conley's termination of employment with the City, including but not limited to Sections 7 and
8.E. These sections, and the others so intended, shall survive termination of employment and termination of this Agreement.
00110668 1 Page 12
001106681
03/07/2023 C1 Page 14 of 17
C. Amendments
This Agreement may be amended at any time by mutual agreement of the City and Conley. Any amendments are to be negotiated, put in writing, and adopted by the City Council.
D. Conflict of Interest
(1) Conley shall not engage in any business or transaction or shall 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. Personal, as distinguished from financial interest, includes an interest arising from blood or marriage relationships or close business, personal, or political associations. This section shall not serve to prohibit independent acts or other forms of enterprise during those hours not covered by active City employment, providing such acts do not constitute a conflict of interest as defined herein.
(2) Conley shall also be subject to the conflict of interest provisions of the California Government Code and any conflict of interest code applicable to Conley's City employment.
(3) Conley 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.
E. Indemnification
(1) To the full extent of the law as provided by the California Torts Claims Act (Government Code Section 810 et seq.) and the indemnity provisions of this Agreement, whichever shall provide the greatest protection to Conley, the City and City related entities, jointly and severally, shall defend and indemnify Conley against and for all losses sustained by Conley in direct consequences of the discharge of the Conley's duties on the City's behalf for the period of Conley's employment.
(2) The City shall defend, save harmless and indemnify Conley 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 Conley'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 Conley shall be sued for damages arising out of the performance of Conley's duties, the City shall provide defense counsel for Conley in such suit and indemnify Conley from any judgment rendered against Conley; provided that such indemnity shall not extend to any 00110668 1 Page 13
001106681
03/07/2023 C1 Page 15 of 17
judgment for damages arising out of any willful wrongdoing. This indemnification shall extend beyond termination of employment and the otherwise expiration of this Agreement to provide protection for any such acts undertaken or committed in Conley'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 Conley 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 Conley, while acting within the scope of Conley'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 Conley.
(5) In the event that Conley shall serve as the chief executive of other City- related legal entities then each provision of this Section 8.E shall be equally applicable to each City-related legal entity as though set forth in an indemnity agreement between Conley and that legal entity. The City hereby guarantees the performance of this indemnity obligation by the City-related legal entity and shall indemnify and hold Conley harmless against any failure or refusal by City-related legal entity to perform its obligations under this Section 8.E.
F. 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.
G. Jurisdiction and Venue
This Agreement 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.
H. Entire Aareement
This Agreement represents the entire agreement of the Parties, and no representations have been made or relied upon except as set forth herein. This Agreement may be amended or modified only by a written, fully executed agreement of the Parties.
I. Notice
Any notice, amendments, or additions to this Agreement, including change of address of either party during the term of this Agreement, which the City Manager or the City shall be required, or may desire, to make shall be in writing and shall be 00110668 1 Page 14
001106681
03/07/2023 C1 Page 16 of 17
sent by prepaid first-class mail or hand-delivered to the respective Parties as follows:
If to the City:
Mayor
City of Vista
200 Civic Center Drive
Vista, CA 92084
If to Conley:
John Conley
200 Civic Center Drive
Vista, CA 92084
9. Execution
The Parties have signed this Agreement as of the date first written above.
CITY OF VISTA John Conley
By: By:
John Franklin, Mayor John Conley, an individual
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
00110668 1 Page 15
001106681
03/07/2023 C1 Page 17 of 17
ADD TO PACKET