Item 04 - Consideration of City Manager Employment Agreement with David CarmanyAGENDA ITEM NO.4
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
DATE: August 20, 2019
TO: Mayor and City Council
FROM: David Carmany
Interim City Manager
SUBJECT: CONSIDERATION OF CITY MANAGER EMPLOYMENT AGREEMENT WITH DAVID
CARMANY
RECOMMENDATION:
It is recommended that the City Council approve a City Manager employment agreement with David Carmany
BACKGROUND:
The office of City Manager is established by the West Covina municipal code. The City Manager shall be
appointed by majority vote of the city council. He or she shall be selected by the city council on the basis of his or
her executive and administrative qualifications with special reference to his or her actual experience in or
knowledge of accepted practices of municipal administration.
DISCUSSION:
David Carmany has been serving as Interim City Manager since April 2019. A recruitment for City Manager was
conducted immediately upon his hire, as he is a retired Ca1PERS annuitant. At the July 16, 2019 Closed Session
City Council Meeting, the City Council voted 4-1 to direct the City Attorney to draft a one (1) year agreement
(Attachment No. 1 ) for employment with Mr. Carmany. The open recruitment was subsequently concluded and
applicants were notified.
Highlights of the Agreement include:
• A one (1) year agreement;
• A month to month provision after the one-year agreement expires;
• No severance pay included; and
• Benefits are commensurate with Executive Management Benefits.
LEGAL REVIEW:
The City Attorney has prepared the staff report and the City Manager contract.
OPTIONS:
The City Council has the following options:
1. Approve the City Attorney's recommendation; or
2. Provide alternative direction.
Prepared by: Thomas P. Duarte, City Attorney
Fiscal Impact
FISCAL IMPACT:
The provisions of the agreement fall within the parameters of the current City Manager budget allocation at an
annual salary of $212,000.
Attachments
Attachment No. 1 - David Carmany City Manager Employment Agreement
CITY COUNCIL GOALS & OBJECTIVES: Achieve Fiscal Sustainability and Financial Stability
Maintain and Enhance City Facilities and Infrastructure
Enhance the City Image and Effectiveness
Protect Public Safety
Respond to the Global COVID-19 Pandemic
Engage in Proactive Economic Development
ATTACHMENT NO.1
CITY OF WEST COVINA
CITY MANAGER EMPLOYMENT AGREEMENT
WITH DAVID CARMANY
This City Manager Employment Agreement (the "Agreement") is made and entered into as of the
20th day of August, 2019 ("Effective Date"), by and between the City of West Covina, a municipal
corporation (hereinafter, the "City") and David Carmany, an individual (hereinafter, "Employee"). City and
Employee are hereinafter collectively referred to as the "Parties" and individually as "Party."
RECITALS
WHEREAS, the City desires to employ the services of Employee in the capacity of City Manager;
and
WHEREAS, the City further desires to provide certain benefits, establish certain conditions of
employment, and to establish working conditions for Employee; and
WHEREAS, Employee desires to accept employment as City Manager effective on September 1,
2019, under the terms and conditions set forth herein; and
WHEREAS, Employee represents that he is willing and qualified to provide such services to the
City.
NOW THEREFORE, in consideration of the mutual covenants, promises, and representations
hereinafter set forth, the Parties hereto agree as follows:
1.0. DUTIES
1.1. Appointment. The City hereby appoints and employs Employee as City Manager for the
City to perform the functions and duties of City Manager as set forth in the West Covina
Municipal Code (hereinafter, "Code") and to perform such other legally permissible and
proper duties and functions as the West Covina City Council (hereinafter, "City Council")
may from time to time assign. City may amend the provisions of the Code relating to the
functions and duties of the City Manager, as it deems appropriate, without Employee's
approval or an amendment to this Agreement.
1.2. City Manager Duties. Employee hereby accepts employment as City Manager. Employee
shall serve as an officer of the City pursuant to the authority set forth in California
Government Code section 36501, et seq., and Chapter 2 of the Code. Employee shall
perform all duties of the City Manager set forth in the Code. Employee may only exercise
those powers expressly granted to him as City Manager through the Code or any resolution
or minute action of the City Council
13. Compliance with Laws. Employee shall perform his duties to the best of his ability in
accordance with the highest professional and ethical standards of the profession. He shall
comply with and carry out the City's rules and regulations and he shall obey the laws of
the State of California and the United States of America as they apply to the performance
of his duties.
IA. Hours Worked. Employee agrees to remain in the exclusive employ of the City during the
term of this Agreement. Employee shall devote his time, ability, and attention to matters
of the City and to the performance of this Agreement. Employee's duties may involve
expenditures of time in excess of the regularly established workday or in excess of a forty
(40) hour workweek and may also include time outside of normal office hours (including
attendance at City Council meetings and various community meetings, forums or
workshops). Employee's base salary includes compensation for all hours worked
Employee shall be classified as an exempt employee for purposes of the Fair Labor
Standards Act and shall not be entitled to any form of compensation for overtime.
1.5. No Other Employment. Employee shall not, without the City's prior written consent, render
services of any kind to others for compensation or engage in any other activity which would
materially interfere with the performance of his duties under this Agreement
Notwithstanding the foregoing, Employee may perform incidental and occasional teaching,
writing, consulting, or volunteer work, provided that such activities do not materially
interfere with the performance of his duties under this Agreement.
1.6. Conflicts Prohibited. Employee shall not engage in any activity which is or may become a
conflict of interest with his obligations to the City or which might create an incompatibility
of office as defined under California law. He shall also timely complete and file financial
disclosure statements immediately upon entry into his employment and annually thereafter
pursuant to California law.
2.0. TERM
2.1. Term. The term of this Agreement shall become effective on September 1, 2019, and will
remain in full force and effect through the end of the business day on August 31, 2020
("Initial Term"), unless otherwise terminated as set forth herein. At the expiration of the
Initial Term of this Agreement, this Agreement shall automatically extend on a month -to -
month basis until such time as either Party, thirty (30) days prior to the expiration of the
Initial Term or any extension period, gives written notice of its desire to not extend the
term.
2.2. Prior Termination. Nothing in this Agreement shall prevent, limit or otherwise interfere
with the right of the City Council to terminate the services of Employee at any time, subject
only to the provisions set forth in Section 7.0 (Termination) of this Agreement.
3.0. COMPENSATION
3.1. Salary. Effective September 1, 2019, City agrees to pay Employee for his services rendered
hereunder at an annual rate of Two Hundred Twelve Thousand Dollars ($212,000.00),
which sum shall be considered the base salary and shall be payable in installments at the
same times as the City's other employees are paid, and subject to customary withholdings.
3.2. Salary Adjustments. City agrees to consider adjusting said base salary and other benefits
of Employee, in City's sole discretion, subject to the performance evaluation process
described in Section 8.0 (Performance Evaluation) of this Agreement, which shall be merit
based.
4.0. EMPLOYEE BENEFITS
4.1. Insurance. During the term of this Agreement, Employee shall be entitled to the same
medical, dental, vision, and life insurance benefits, if any, which are provided to all other
dIM
Department Heads of City. Employee shall be required to pay for medical, dental, vision,
and life insurance benefits, if any, in the same manner as all other Department Heads of
City. Insurance coverage(s) shall be provided in the same manner as offered to all other
Department Heads of the City.
4.2. Retirement. Employee shall be covered by the California State Employee Retirement
System (CalPERS) and entitled to the annuity as specified by the City's CalPERS contract
City and Employee shall each pay their full share of the CalPERS retirement contribution
rate as determined by the CalPERS contract. Employee shall immediately notify CalPERS
that Employee has entered into this Agreement, and comply with all CalPERS regulations
regarding former CalPERS annuitants.
43. Holidays. Employee shall be eligible for paid leave on City -recognized holidays to the
same extent as other City Department Heads.
4A. Vacation, Sick, Administrative, and Floating Holiday Leave. Employee shall accrue and
be credited with the same vacation leave, sick leave, administrative leave, and floating
holiday leave as is provided to all other City Department Heads. Employee may use such
paid leave in the same manner as all other Department Heads, as set forth in the Resolution
establishing compensation and benefits for City Department Heads, as it may be amended
from time to time. Prior to taking any leave, Employee shall provide advance written notice
to the City Council of same.
45. Cash -Out Program. Employee shall be entitled to participate in the City's annual sick leave
or other leave cash -out program, in the same manner as all City Department Heads.
4.6. Deferred Compensation. City agrees to provide to Employee the same amount of deferred
compensation as is provided to all City Department Heads, with the same frequency as the
same is provided to all City Department Heads. Employee may utilize such funds in the
same manner as all City Department Heads, as set forth in the Resolution establishing
compensation and benefits for City Department Heads, as it may be amended from time to
time.
4.7. Automobile Allowance. In lieu of providing Employee with a City -owned vehicle for
Employee's use for conducting City business, City agrees to provide Employee with the
same automobile allowance that is provided to all other City Department Heads, which
allowance may be amended from time to time. Employee agrees that, in exchange for such
allowance, he shall be solely responsible for all costs related to the purchase, maintenance,
operation, upkeep, and insurance of his vehicle, and that he shall not receive a separate
mileage reimbursement. Employee further agrees that Employee will not use City vehicles
to conduct City business.
4.8. Other Benefits. The City shall provide Employee such other benefits as mandated by law.
5.0. BUSINESS EXPENSES AND PROFESSIONAL DEVELOPMENT
5.1. Expense Reimbursement. City recognizes that Employee may incur certain expenses of a
non -personal, job -related nature that are reasonably necessary to Employee's service as
City Manager. City agrees to reimburse Employee for such expenses on a monthly basis,
provided that the expenses are incurred and submitted according to the City's regular
reimbursement requirements and such other requirements as may be designated by the City
3of8
Council. The City Council authorizes the Finance Director to reimburse Employee for such
expenses upon the presentation of a receipt, voucher, statement, or personal affidavit of
duly executed expenses.
5.2. Memberships. City agrees to budget and to reimburse or pay for professional dues,
memberships, and subscriptions necessary for Employee's participation in such
organizations as the Parties may agree to as necessary and appropriate for his continued
professional participation, growth, and advancement, and for the good of the City during
his employment as City Manager.
53. Trainings. City agrees to budget and to reimburse or pay the reasonable costs for
Employee's attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership development and
the advancement of the Parties' mutually agreed upon goals, and which are related to
Employee's duties or City's operations and held in the continental United States. For
purposes of this paragraph, reasonable expenses are limited to the reasonable and actual
costs of registration, coach -class airfare (where applicable), ground transportation and
meals. Reasonable expenses will also include the reasonable and actual cost of lodging for
meetings more than sixty (60) miles outside of the City's boundaries.
6.0. AT -WILL EMPLOYMENT RELATIONSHIP
6.1. At Will Employment. Employee understands and agrees that Employee is appointed by,
and serves at the pleasure of, the City Council. Accordingly, Employee agrees that: (1)
Employee is an "at will" employee whose employment may be terminated by City at any
time, with or without cause (as defined below); (2) there is no express or implied promise
made to Employee for any form of continued employment; and (3) this Agreement is the
sole and exclusive basis for an employment relationship between Employee and City.
6.2. Resignation Permissible. Nothing in this Agreement shall prevent, limit or otherwise
interfere with Employee's right to resign from his employment with City, subject only to
Employee providing sixty (60) calendar days' prior written notice to City of the effective
date of his termination. Upon the effective date of resignation, Employee forfeits an
compensation and benefits owing for the remainder of the term of this Agreement.
7.0. TERMINATION
7.1. City Termination without Cause. The City Council may terminate this Agreement without
cause in its absolute discretion at any time by providing written notice to employee, except
the City Council may not terminate this Agreement in a manner contrary to the Code, as it
may be amended from time to time. If this Agreement is terminated without cause,
Employee shall only be entitled to payment of his accrued base salary and accrued but
unused vacation, sick, administrative, and floating holiday leave at the time of termination.
7.2. City Termination for Cause. The City Council may immediately terminate this Agreement
for cause by providing written notice to Employee of such termination. For purposes of
this Agreement, "cause" is defined as: (1) refusing or failing to carry out the duties of the
City Manager as set forth in the Government Code, the Code or this Agreement; (2)
conviction of a felony; (3) conviction of a misdemeanor arising out of Employee's duties
under this Agreement and involving a willful or intentional violation of law; (4) being
charged with, entering a guilty plea or a plea of nolo contendere to, or being convicted of,
.sin
a crime involving moral turpitude or personal gain; (5) conviction of any crime involving
an "abuse of office or position," as that term is defined in Government Code section
53243.4; (6) repeated failure to carry out a directive or directives of the City Council made
by the City Council as a body; and (7) any grossly negligent action or inaction by Employee
that materially and adversely: (a) impedes or disrupts the operations of City or its
organizational units; (b) is detrimental to employees or public safety; or (c) violates
properly established rules or procedures of City. If this Agreement is terminated for cause,
Employee shall only be entitled to payment of his accrued base salary and accrued but
unused vacation leave at the time of termination.
73. Employee Voluntary Resignation. Employee may voluntarily resign from his position with
the City at any time during the term of this Agreement by providing the City Council at
least sixty (60) days written notice, unless the Parties otherwise agree in writing. If
Employee voluntarily resigns from his position, Employee shall only be entitled to payment
of benefits normally payable, if any, to resigning City employees. Failure of Employee to
give the required 60 days' written notice of resignation will result in a pro-rata reduction
in benefits normally payable, if any, to resigning City employees, such as, but not limited
to, accrued vacation payment and sick leave payment.
7A. No Severance. In the event of the termination of this Agreement by City, with or without
cause, or of Employee's voluntary resignation, Employee shall receive no severance.
8A. PERFORMANCE EVALUATION
8.1. Performance Objectives. City and Employee shall establish mutually -agreed upon
performance objectives for each year this Agreement remains in effect. Such performance
objectives shall be agreed upon by the Parties as necessary for the proper operation of the
City in the attainment of the City Council's policy objectives and shall further establish a
relative priority among the agreed -upon objectives. The objectives shall be reasonably
attainable within the limitations of the City Council -approved operating and capital
improvement budgets, authorized appropriations, and staff levels. The initial performance
objectives shall be established within three (3) months of the Effective Date of this
Agreement.
8.2. Annual Evaluation. City, through its City Council, shall conduct an annual evaluation of
Employee's performance to coincide with the anniversary date of this Agreement. Such
evaluation shall be shared and discussed with Employee in closed session as permitted by
applicable law. Any public report of Employee's evaluation shall be made in accordance
with anagreementof the Parties as to format and content. In addition to annual performance
evaluations, the City Council may schedule performance evaluations of Employee as it
deems appropriate.
9.0. OTHER TERMS AND CONDITIONS OF EMPLOYMENT
9.1. Additional Terms. The City Council may from time to time fix other terms and conditions
of employment relating to the performance of Employee provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement,
the Code or other applicable law.
9.2. Personnel Rules. The provisions of the Code and any West Covina personnel rules and
regulations shall apply to Employee except where the specific provisions conflict with this
5of8
Agreement, in which event the terms and conditions of this Agreement shall prevail
10.0. CONFIDENTIAL INFORMATION
Employment with the City creates a relationship of confidence and trust between Employee and
the City, with respect to all Confidential Information of City. "Confidential Information" includes, but is
not limited to, trade secrets, confidential information, client lists, knowledge or data of the City or any of
its constituent entities or members that Employee may produce, obtain or otherwise acquire or have access
to during the course of Employee's employment with the City, including but not limited to personnel
information, passwords, and computer security systems. Employee agrees thatduring and afterEmployee's
employment with the City, Employee (i) shall keep all Confidential Information confidential and shall not
directly or indirectly use, divulge, publish or otherwise disclose or allow to be disclosed any aspect of
Confidential Information without prior written consent of the City Council; and (ii) shall refrain from any
action or conduct which might reasonably or foreseeably be expected to compromise the confidentiality or
proprietary nature of the Confidential Information. Upon termination of employment for any reason,
Employee agrees to return promptly to the City all writings and other tangible things in Employee's
possession that contain Confidential Information.
11.0. INDEMNIFICATION
11.1. City Indemnification. To the extent required by law, City shall defend and indemnify
Employee, using legal counsel of City's choosing, against any civil proceeding brought
against Employee, in his official or individual capacity or both, on account of an act or
omission in the scope of his employment as City Manager, unless such act or omission was
due to actual fraud, corruption, or actual malice. If City determines there is a conflict of
interest between the City and Employee and that independent counsel is required for
Employee's defense, City shall select andpay reasonable fees of such independent counsel
for Employee's defense. Employee shall cooperate fully in the investigation and defense
of any civil action or proceeding.
11.2. Exception to Indemnification. Notwithstanding the foregoing, Employee acknowledges
and agrees that City reserves its rights pursuant to Government Code section 825(a) not to
pay any judgment, compromise, or settlement until it is established that the injury arose
out of an act or omission occurring within the scope of his employment, and that City's
agreement to defend and indemnify him does not constitute an agreement to pay any
punitive damages awardedagainst him. In that regard, Employee acknowledges and agrees
that pursuant to Government Code section 825(b), City may not make a determination
whether or not to indemnify an employee for an award of punitive damages until such time
as the award is made.
12.0. REIMBURSEMENT TO CITY REQUIRED
Notwithstanding the provisions of this Agreement, the following provisions requiring
reimbursement for certain compensation and/or indemnification provided to Employee by the City apply:
(a) Paid Leave. Pursuant to Government Code section 53243, in the event that Employee is
convicted of a crime involving an abuse of his office or position, as defined by
Government Code section 53243.4, Employee shall fully reimburse the City for any paid
leave or salary provided by the City for the time period in which the Employee is under
investigation for such crimes.
(b) Legal Defense. Pursuant to Government Code section 53243.1, in the event that
Employee is convicted of a crime involving an abuse of his office or position, as defined
by Government Code section 53243.4, Employee shall fully reimburse the City for all
the costs of his legal criminal defense if a defense has been provided at City's expense.
(c) Cash Settlement. Pursuant to Government Code section 53243.2, in the event that
Employee is convicted of a crime involving an abuse of his office or position, as defined
by Government Code section 53243.4, Employee shall fully reimburse the City for any
cash settlement paid to Employee relating to the termination of this Agreement.
13.0. GENERAL PROVISIONS
13.1. Entire Agreement. This Agreement is the final expression of the complete agreement of
the Parties with respect to the matters specified herein and supersedes all prior oral or
written understandings. Except as prescribed herein, this Agreement cannot be modified
except by written mutual agreement signed by the Parties.
13.2. No Assignment. This Agreement is not assignable by either City or Employee.
13.3. Headings. Paragraphs and subparagraph headings contained in this Agreementare included
solely for convenience and are not intended to modify, explain or to be a full or accurate
description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
13.4. Severabilky. In the event that any provision of this Agreement is finally held or determined
to be illegal or void by a court having jurisdiction over the Parties, the remainder of the
Agreement shall remain in full force and effect unless the parts found to be void are wholly
inseparable from the remaining portions of the Agreement.
13.5. Counterparts. This Agreement may be signed in any one or more counterparts, all of which
taken together shall be deemed one and the same Agreement. Any signed copy of this
Agreement or of any other document or agreement referred to herein, or copy or
counterpart thereof, delivered by email as a .pdf attachment, or sent by facsimile
transmission, shall for all purposes be treated as if it were delivered containing an original
manual signature of the Party whose signature appears in the attachment/facsimfle and shall
be binding upon such Party in the same manner as though an original signed copy had been
delivered.
13.6. Waiver. The waiver of any breach of a specific provision of this Agreement does not
constitute a waiver of any other breach of that term or any other term of this Agreement.
13.7. Independent Legal Counsel. Each of the Parties acknowledges that he/it has been
represented by independent legal counsel of his/its own choosing, or if not, has been
advised to obtain independent legal counsel and has freely and voluntarily waived and
relinquished the right to legal counsel. Further, each Party who has not obtained
independent legal counsel acknowledges that the failure to have independent legal counsel
will not excuse such Parry's failure to perform under this Agreement or any agreement
referred to in this Agreement.
13.8. Venue. This Agreement shall be interpreted and construed according to the laws of the
State of California, and venue shall be in the County of Los Angeles.
7of8
13.9. Notices. All notices shall be personally delivered or mailed to the addresses listed below:
EMPLOYEE: David Carmany
At most recent address on file in Employee's personnel file
CITY: Mayor
City of West Covina
1444 West Garvey Ave. South
West Covina, CA 91790
With a copy to: West Covina City Attorney
Jones & Mayer
3777 N. Harbor Ave.
Fullerton, CA 92835
IN WITNESS WHEREOF, the Parties hereto have hereunto affixed their signatures as of the date
and year first above written.
CITY OF WEST COVINA
Lloyd Johnson, Mayor
ATTEST:
Carrie Gallagher, Assistant City Clerk
APPROVED AS TO FORM:
Thomas P. Duarte, City Attorney
EMPLOYEE
By: David Carmany
Em