CC 2015-04-28_11d Appointment of City Manager pRRO yo
INCORPORATED 9z MEMORANDUM
* JULY 10, 1911
c441 F O R��P
TO: CITY COUNCIL
FROM: ROBERT K. MCFALL, INTERIM CITY MANAGER
SUBJECT: CONSIDERATION OF A RESOLUTION CONFIRMING THE
APPOINTMENT OF DIANNE THOMPSON AS CITY MANAGER FOR THE
CITY OF ARROYO GRANDE
DATE: APRIL 28, 2015
RECOMMENDATION:
It is recommended the City Council adopt a Resolution confirming the appointment of Dianne
Thompson as City Manager for the City of Arroyo Grande and authorizing the Mayor to
execute the employment agreement.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
Total annual compensation for the City Manager is approximately $229,600, including all
salary and benefits. The current FY 2014-15 budget assumed total costs of$231,800 for the
position. Variances from the budget include an increase in salary and a significant savings in
retirement costs associated with a lower benefit formula.
BACKGROUND:
The City Council has been engaged in the recruitment of a City Manager for the past several
months. On March 27 and 28, 2015 the City Council interviewed a number of qualified
candidates and determined that Ms. Thompson was the top candidate for the position.
ANALYSIS OF ISSUES:
Based on the City Council's direction, negotiations ensued with Ms. Thompson, resulting in
the employment agreement and Resolution that are attached for approval. Key terms of the
employment agreement include a base salary of $179,000 annually, a City contribution to a
deferred compensation program of $2,200 annually, and participation in the CalPERS
retirement system at the formula of 2% at 55 ("Classic Employee"), all in accordance with the
City Manager Recruitment bulletin. The compensation package includes additional benefits
similar to those afforded other executive employees, such as medical, dental, vision and life
insurance, annual leave and auto allowance. In addition, the City will provide up to $10,000
on a reimbursement basis for moving and relocation and will provide $1,700 per month for up
to four months as a temporary housing allowance.
Ms. Thompson was previously the City Manager for the City of Cotati, where she served from
2007 to 2014, and previously served as the Assistant City Manager. She has a Master of
Public Policy and Administration from Northwestern University and a Bachelor of Arts,
Item 11.d. - Page 1
CONSIDERATION OF A RESOLUTION CONFIRMING THE APPOINTMENT OF
DIANNE THOMPSON AS CITY MANAGER FOR THE CITY OF ARROYO GRANDE
APRIL 28, 2015
PAGE 2
Architecture from University of California, Berkeley. Ms. Thompson also is a Credentialed
Manager through the International City & County Management Association. Ms. Thompson's
responsibilities in Cotati covered the full breadth of local government services including public
safety, and all aspects of municipal finances and long range financial planning, economic
development, strategic planning, employee relations, community engagement, public/private
partnerships and leadership development. Her background and experience assist to make
Ms. Thompson a very good candidate for Arroyo Grande's City Manager.
Due to a previous commitment, Ms. Thompson's start date will be no later than August 1,
2015. The current Interim City Manager will continue providing services until that date.
ALTERNATIVES:
1. Adopt a Resolution confirming the appointment of Dianne Thompson as City Manager.
2. Do not adopt a Resolution confirming the appointment.
3. Provide direction to staff.
ADVANTAGES:
The City Council has interviewed and vetted several potential candidates for the City
Manager position. Appointing Ms. Thompson completes the recruitment process.
DISADVANTAGES:
There are no identified disadvantages to the recommendation.
ENVIROMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted in front of City Hall on Thursday, April 23, 2015. The Agenda and
report were posted on the City's website on Friday, April 24, 2015. No public comments
were received.
Item 11.d. - Page 2
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE APPOINTING DIANNE
THOMPSON AS CITY MANAGER FOR THE CITY OF
ARROYO GRANDE AND AUTHORIZING THE MAYOR TO
EXECUTE THE EMPLOYMENT AGREEMENT
WHEREAS, the City of Arroyo Grande ("City") is a general law city with a Council-
Manager form of government; and
WHEREAS, the City Council appoints the City Manager in accordance with Chapter
2.08 of the Arroyo Grande Municipal Code; and
WHEREAS, the former City Manager's employment with the City ended on January 14,
2015; and
WHEREAS, the City Council desired to recruit for a new City Manager; and
WHEREAS, an Interim City Manager was appointed on January 14, 2015, to serve
while the City Council conducted a City Manager recruitment process; and
WHEREAS, on April 14, 2015, the City Council met in closed session and directed the
Interim City Manager to negotiate an employment agreement with Dianne Thompson for
the City Manager position; and
WHEREAS, the negotiations resulted in an agreement as to the terms and conditions of
employment.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo
Grande that Dianne Thompson is appointed to serve as the City Manager for the City of
Arroyo Grande and the Mayor is authorized, on behalf of the City Council, to execute
the City Manager Employment Agreement, a copy of which is attached as Exhibit A,
setting forth the terms and conditions of employment for Dianne Thompson, effective no
later than August 1, 2015.
On motion of Council Member seconded by Council Member
and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this 28th day of April 2015.
Item 11.d. - Page 3
RESOLUTION NO.
PAGE 2
JIM HILL, MAYOR
ATTEST:
KELLY WETMORE, CITY CLERK
APPROVED AS TO CONTENT:
BOB McFALL, INTERIM CITY MANAGER
APPROVED AS TO FORM:
TIMOTHY J. CARMEL, CITY ATTORNEY
Item 1 1.d. - Page 4
EXHIBIT A
CITY MANAGER EMPLOYMENT AGREEMENT
Between the
City of Arroyo Grande
and
Dianne Thompson
1. Employment:
This City Manager Employment Agreement (Agreement) is entered into and effective
this U day of[ , 2015 by and between the CITY OF ARROYO GRANDE (City), a
municipal corporation of the State of California, and Dianne Thompson (Manager), an individual.
Under this Agreement, the City offers, and Manager accepts, employment as City Manager of
the City.
2. Duties:
Manager shall be the chief executive officer of the City and perform those duties as set
forth in the Arroyo Grande Municipal Code (Municipal Code), Chapter 2.08 and those
responsibilities that are commonly assigned to a city manager of a city in California. Manager
shall perform such other legally permissible and proper duties and functions appropriate to and
consistent with the professional role and responsibilities of City Manager, as the City Council
shall from time to time assign.
A. Manager shall administer and enforce policies established by the City Council
and promulgate rules and regulations as necessary to implement City Council policies.
B. Direct the work of all 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.
C. Recommend to the City Council, from time to time, adoption of such measures as
she may deem necessary or expedient for the health, safety, or welfare of the community or for
the improvement of administrative services.
D. Evaluate administrative practices that may result in greater operational
effectiveness or economy in City government, and develop and recommend to the City Council
long range plans to improve City operations and prepare for the City's growth and development.
E. Provide for management, development and training, and develop leadership
qualities as necessary to insure the highest standards of managerial practices.
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F. The Manager shall act in the City's best interests at all times and perform her
duties in a competent and professional manner. Furthermore, as the City's highest officer,
Manager shall endeavor at all times to exercise the highest degree of integrity, committing to
comply with the International City/County Managers Association (ICMA), Code of Ethics, and
shall not engage in any conduct or activities, on- or off-duty, that reflect discredit or bring
disrepute on the City or impair its efficient and effective operation.
G. The Manager is exempt from the overtime provisions of the Fair Labor and
Standards Act, as amended, but is expected to engage in those hours of work that are
necessary to fulfill the obligations of the Manager.
3. Devotion to City Business:
The Manager position is considered a full-time position. Therefore, the Manager shall
not engage in any outside business, educational, professional, charitable, or other activities,
whether for compensation or otherwise, that would conflict or materially interfere with
performance of her City Manager duties, without written prior approval by the City Council.
4. Hours of Work:
Manager's position is full-time with a work schedule generally consistent with the normal
business hours adopted by the City and those necessary to fulfill the obligations of the City
Manager, including being available to attend all necessary meetings during evenings and
weekends. In recognition of the amount of work time required outside of regular business
hours, it is agreed the Manager does not have a fixed schedule and the Manager will have the
discretion to work as needed to accomplish the duties and responsibilities assigned to her.
5. Term:
Manager's employment will commence no later than August 1, 2015 and shall continue
until terminated as provided herein.
6. City Council Commitments:
A. 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
Manager or the Manager's designee, and neither the City Council nor any member thereof shall
give direction to any subordinate of the Manager, either publicly or privately.
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B. No member of the City Council will order the appointment or removal of any
person to any office or employment under the supervision and control of the Manager.
C. The City Council agrees that any critical observations about staff members will
be done privately through the Manager.
D. Neither the City Council nor any of its members shall interfere with the execution
of the powers and duties of the Manager, as specified in the Municipal Code, this Agreement, or
any other lawfully adopted and authorized document.
7. Compensation:
A. Manager's initial annual Base Salary shall be One Hundred Seventy Nine
Thousand dollars ($179,000.00). Said amount shall be payable in installments at the same time
and in the same manner as other employees of the City are paid.
B. Manager shall be entitled to receive cost-of-living adjustments or any similar
across-the-board increases that the City Council determines, in its discretion, to approve for all
management employees.
C. Manager's Base Salary increases approved by the City Council from time to time
pursuant to this Agreement shall not require an amendment to this Agreement to be effective.
Such may be set forth in an annual salary resolution or minute action approved by the City
Council and ratified by resolution.
D. If the City reduces the Base Salary or any other financial benefit of the Manager
in a percentage that is greater than the average reduction of all department directors, without
the approval of the Manager, such action shall constitute a termination of this Agreement
without Cause under Section 19 of this Agreement, and Manager shall be entitled to Severance.
8. Annual Evaluation:
A. City shall initially review the performance of Manager within six months following
the start date of Manager. City and Manager shall also meet within forty five (45) days following
the start date of Manager to establish agreed upon performance goals for the first year of
employment, and shall thereafter meet annually in July to review the Manager's performance
and update goals, subject to a process, form, criteria and format mutually agreed upon by City
and Manager. At a minimum, the process will include the preparation of a written evaluation, a
meeting with the full Council to discuss the evaluation, agreed upon performance criteria for the
upcoming year, and a written summary of the evaluation results. The final written evaluation will
be provided to the Manager within thirty (30) days of the evaluation meeting.
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B. Salary increases to the base salary will be considered, in addition to any cost of
living or other-the-board increases noted in 7.13, as part of the annual evaluation, at the sole
discretion of the City.
9. Deferred Compensation and Additional Benefits:
As part of Manager's annual compensation, City agrees to provide a Section 457
deferred compensation program and to pay into such program for Manager's benefit, Two
Thousand, Two Hundred dollars ($2,200.00) annually, payments to be equally divided in each
pay period. City shall further provide additional benefits at the Director level in accordance with
the adopted annual Resolution establishing wages and benefits for management employees.
10. Pension:
City agrees to enroll Manager as a member of the Public Employees Retirement System
(PERS). The Manager is responsible for paying the full employee portion of PERS.
11. Health and Medical Benefits Insurance:
City shall provide Manager with the same health plans (medical, dental, and vision)
which are provided to other City employees, and shall pay that portion of the employee and
dependent rate or premium as is determined by the City Council for all management employees.
12. Life Insurance:
The City agrees to pay for a term life insurance policy in the face amount of One
Hundred Fifty Thousand Dollars ($150,000.00) on Manager's life with a carrier selected by the
City. Manager shall designate the beneficiaries of the policy. Manager shall also be entitled to
participate in any group life or disability insurance programs approved by the City Council for all
management employees.
13. Physical Examination:
Each calendar year, City shall provide Manager with an executive physical examination,
at a cost not to exceed One Thousand Dollars ($1,000.00) by a qualified physician or medical
facility, of Manager's choice, within reasonable proximity to City.
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14. Car Allowance:
Manager's duties require her to be available and to respond to the demands of City
business at all times and outside of regular business hours, including weekends. City shall pay
Manager Four Hundred Dollars ($400.00) monthly in compensation for the use and
maintenance of her personal vehicle on City business. The car allowance is subject to federal
and state income tax provisions for salary purposes. Manager shall not receive further
reimbursement for travel mileage within a fifty (50) mile radius of the City; for any required travel
mileage outside the fifty (50) mile radius, Manager shall be reimbursed at the current allowable
IRS rate.
15. Equipment:
A. City shall pay Manager a monthly cellular phone allowance in compliance with
Administrative Policy#A-007.
B. City shall provide the Manager a portable note pad style computer, consistent
with the City standard, in addition to the desk top computer installed in the Manager's office.
16. Business and Professional Expenses:
A. City recognizes that Manager may incur expenses of a non-personal, job-related
nature that are reasonably necessary to Manager's service to City. City agrees to either pay
such expenses in advance or to reimburse the expenses, so long as the expenses are incurred
and submitted according to City's normal expense reimbursement procedures or such other
procedure as may be designated by the City Council. To be eligible for reimbursement, all
expenses must be set forth and approved by City Council in the City's budget, supported by
documentation meeting City's normal requirements and must be submitted within time limits
established by City.
B. City agrees to pay the professional dues and subscriptions on behalf of Manager
which are necessary for Manager's continuation or full participation in international, national,
regional, state, or local associations and organizations necessary and desirable for Manager's
continued professional participation, growth and advancement, or for the good of the City, in an
amount set forth and approved by City Council in the City's budget.
C. City agrees to pay Manager's travel and subsistence expenses for official travel,
meetings, and occasions reasonably necessary to continue Manager's professional
development, and for Manager's reasonable participation in necessary official and other
functions for the City; including, but not limited to, national, regional, state, and local
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conferences, and governmental groups and committees on which Manager serves as a
member. Notwithstanding the above, the number of conferences or meetings City will pay for
each year, and attendance at out-of-state conferences and meetings, shall be at the discretion
of the City Council as set forth in the City's budget.
17. Annual Leave:
Manager shall accrue Annual Leave at the rate of thirty three (33) paid days each year,
in addition to recognized City holidays. The maximum accrual and accumulation rates shall be
in accordance with the Management Wage and Benefit Resolution. Upon termination or
resignation, Manager shall be paid for all accrued and unused Annual Leave at an hourly rate
equivalent to her annual salary at the time of termination or resignation. In addition, the
Manager will be granted 136 hours of leave bank upon employment, and an annual allotment of
80 hours of leave bank each year thereafter on July 1. Of the 136 hours, 56 hours will be
considered an advance on hours accrued and 80 hours will be designated as a starting balance.
18. Other Benefits:
The Manager will receive all benefits as set forth in the Management Wage and Benefit
Resolution.
19. Termination of Employment and this Agreement; General Release; Severance:
A. It is understood and agreed that this "at-will" employment relationship as
provided in Government Code Section 36506 and Agreement may be terminated by the City
Council at any time, with or without notice, as determined by the affirmative votes of a majority
of the members of the City Council at a Regular Meeting of the City Council. In the event of
such termination, the City agrees to pay Manager a severance payment equal to: (1) a lump
sum benefit equal to six (6) months of her then Base Salary at the time of separation, and (2) a
lump sum benefit equal to six (6) months of health (medical, dental, and vision) benefits at the
value of the City's contribution rate at the time of separation for the benefit plans in which
Manager and her dependents are then enrolled. This payment is subject to the following:
1. Upon Manager's execution of the "General Release Agreement"
referenced in Exhibit A of this Agreement, Severance Pay shall be
payable in lump sum pursuant to the terms of said Agreement.
2. Manager agrees and understands that her acceptance of the City's offer
of Severance Pay at the time her at-will employment terminated by the
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City Council is pursuant to the execution of the "General Release
Agreement" identified in Exhibit A of this Agreement and shall constitute
liquidated damages and her sole and exclusive remedy for any
termination of this Agreement by the City Council as noticed in said
Agreement.
3. In the event Manager voluntarily terminates her position with City, no
severance pay shall be payable to Manager.
4. In the event City terminates Manager's at-will status after Manager
engages in the following conduct, City shall have no obligation to pay the
aggregate severance pay designated in the above paragraphs:
(a) A material breach of the terms of this agreement;
(b) Conviction of, or plea of guilty or nolo contendre to any crime or
offense (other than minor traffic violations or similar offenses)
which is likely to have a material adverse impact on the City or on
the Manager's reputation;
(c) Proven failure of the Manager to observe or perform any of her
duties and obligations, if that failure continues for a period of thirty
(30) business days from the date of her receipt of notice from the
City Council specifying the acts or omissions deemed to amount
to that failure;
(d) Conviction of any crime involving an "abuse of office or position,"
as that term is defined in Government Code Section 53243.4;
(e) Repeated failure to carry out a directive or directives of the City
Council made by the City Council as a body at a Brown Act-
compliant meeting;
(f) Any grossly negligent action or inaction by Manager 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 City's properly-established rules or
procedures; and
(g) Conduct unbecoming the position of City Manager or likely to
bring discredit or embarrassment to the City.
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B. In no event may Manager be terminated within ninety (90) days before or after
any municipal election for the selection or recall of one or more of the members of the City
Council, except by a unanimous vote of the members of the City Council.
C. If, during the Term or any extended Term, Manager dies, Manager's estate shall
receive Accrued Salary and Benefits, but shall not be entitled to any additional compensation or
payment, including Severance.
D. In the event Manager is permanently disabled or is otherwise unable to perform
her duties because of sickness, accident, injury, or mental incapacity for a period of six (6)
consecutive months, the City may terminate Manager's employment and this Agreement.
Manager shall receive Accrued Salary and Benefits, but shall not be entitled to additional
compensation or payment, including severance.
E. Manager may resign from her employment at any time, upon giving forty-five (45)
days written notice to the City Council. If Manager resigns from employment, Manager shall not
be entitled to any additional compensation or payment, including Severance, but shall be
entitled only to Accrued Salary and Benefits.
20. California Joint Powers Insurance Authority Provisions
Manager hereby knowingly waives any and all rights she may have pursuant to the
provisions of the California Joint Powers Insurance Authority (CJPIA) 2014-2015 Memorandum
of Liability Coverage, titled "Chief Executive Separation Payment."
21. Abuse of Office or Position:
Notwithstanding anything to the contrary in this subsection, pursuant to the requirements
set forth in Government Code Section 53243.2, if Manager is convicted of a crime involving an
abuse of her office or position, all of the following shall apply: (a) if Manager is provided with
administrative leave pay pending an investigation, Manager shall be required to fully reimburse
City such amounts paid; (b) if City pays for the criminal legal defense of Manager (which would
be in its sole discretion, as it is generally not obligated to pay for a criminal defense), Manager
shall be required to fully reimburse City such amounts paid; and (c) if this Agreement is
terminated, any Severance Pay and Severance Benefits related to the termination that Manager
may receive from City shall be fully reimbursed to City or shall be void if not yet paid to
Manager. For purposes of this Section, abuse of office or position means either: (i) an abuse of
public authority, including, but not limited to, waste, fraud, and violation of the law under color of
authority; or (ii) a crime against public justice.
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22. Enforcement of this Agreement:
The prevailing party in any action brought to enforce this Agreement or to resolve any
dispute or controversy arising under its terms and conditions shall be entitled to payment of
her/its reasonable attorneys' fees and costs.
23. Communications Upon Manager's Separation:
In the event the City terminates the Manager for any reason or no reason, the City and
the Manager agree that, unless as otherwise required by law, no member of the City Council,
the City Management staff, nor the Manager, shall make any written, oral or electronic
statement to any member of the public, the press, or any city employee concerning the
Manager's termination except in the form of a joint press release or statement, the content of
which is mutually agreeable to the City and the 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 the joint press release or statement in response to any inquiry.
24. Indemnification:
Consistent with the California Government Code, City shall defend, hold harmless, and
indemnify Manager using legal counsel of City's choosing, against expense or legal liability for
acts or omissions by Manager occurring within the course and scope of Manager's employment
under this Agreement. Legal representation, provided by City for City Manager, shall extend
until a final determination of the issues including any and all losses, damages, judgments,
interest, settlements, fines, court costs, and the reasonable costs and expenses of legal
proceedings, including appeals, and including attorneys' fees, and expert witness fees and all
other trial and appellate costs, and other liabilities incurred, imposed upon, or suffered by
Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or
threatened. In the event there is a conflict of interest between City and Manager such that
independent counsel is required for Manager, Manager may engage her own legal counsel, in
which event City shall indemnify Manager, including direct payment of all such reasonable costs
related thereto.
25. Notices:
Any notices to be given hereunder by either party to the other in writing may be effected
either by personal delivery, mail, or email. Mailed notices shall be addressed to the parties as
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set forth below, but each party may change her/its address by written notice given in
accordance with this Section. Notices delivered personally or by email will be deemed
communicated as of actual receipt. Mailed notices will be deemed communicated and received
as of three (3) calendar days following the date of mailing.
CITY: City of Arroyo Grande
Attention: Mayor
300 E. Branch St.
Arroyo Grande, CA 93420
MANAGER: Dianne Thompson
4607 Burlington Place
Santa Rosa, CA 95405
26. Conflict With Municipal Code:
The City personnel ordinances, resolutions, rules and policies shall apply to Manager in
the same manner as applied to other management employees, provided, however, in the event
of a conflict between the provisions of this Agreement and the City Charter, or this Agreement
and the Municipal Code, the Municipal Code shall prevail over this Agreement.
27. Entire Agreement:
This Agreement represents the entire and fully integrated agreement between the
parties and supersedes any and all other agreements, either oral or in writing, between the
parties with respect to the employment of Manager by City, and contains all of the covenants
and agreements between the parties with respect to that employment. Each party to this
Agreement acknowledges that no representations, inducements, promises, or agreements, oral
or otherwise, have been made by either party, or by anyone acting on behalf of either party,
which are not embodied herein, and that no other employment agreement, statement, or
promise not contained in this Agreement shall be valid or binding upon either party.
28. Modifications:
Any modifications to this Agreement shall be effective only if in writing and signed by
both of the parties hereto.
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29. Effect of Waiver:
The failure of either party to insist upon strict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of
that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at
any one time or times be deemed a waiver or relinquishment of that right or power for all or any
other times.
30. Partial Invalidity:
If any provision of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall be deemed severable and
continue in full force without being impaired or invalidated in any way.
31. Governing Law:
This Agreement shall be governed by and construed in accordance with the laws of the
State of California. Any action to interpret or enforce the terms of this Agreement shall be held
exclusively in a state court in San Luis Obispo County, California. Manager expressly waives
any right to remove such action from San Luis Obispo County.
This Agreement is entered into this day of 12015,
CITY OF ARROYO GRANDE
By:
Jim Hill, Mayor Dianne Thompson, Manager
Attest:
Kelly Wetmore, City Clerk
Approved as to Form:
Timothy J. Carmel, City Attorney
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EXHIBIT A
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Release Agreement") is entered into by and between
Dianne Thompson ("Manager") and CITY OF ARROYO GRANDE ("City"), in light of the
following facts:
A. Separation of Employment. The parties acknowledge that pursuant to Section
19 ("Severance Pay") of the Employment Agreement for Employee, ("Employment Agreement"),
the City terminated Employee from her at-will employment as of ("Separation
Date"). Pursuant to Sections 19 and 20 of the Employment Agreement, Employee has
voluntarily agreed to accept the following severance payment from the City in consideration of
the terms of this Agreement.
B. Severance Payment. Employee acknowledges that the City has no prior
obligation to provide her with any severance benefits. However, pursuant to Sections 19 and 20
of the Employment Agreement, and as consideration for this Agreement and the conditions set
forth herein, the City agrees to provide the Employee the following benefits (collectively, "the
Severance Payment"):
1. [[nsert,Number] months' severance pay at Employee's current rate of
pay in the amount of [insert written dollar amount] dollars and [insert
written°cents amount] cents ($XX,XXX.XX), less applicable payroll tax
withholdings and deductions, in one lump sum payment; and
The Separation Payment shall be made within ten (10) days after Employee executes this
Agreement or on the Separation Date, whichever is later, and only if Employee has not
exercised her right of revocation under section K.
C. Payment for Earned Compensation. Regardless of whether Employee
executes this Agreement, Employee acknowledges that she has been paid for all salary, unused
vacation or other benefits, if any, earned by her up to and including the Separation Date.
D. Release of Claims and Parties. As consideration for the Separation Payment
and agreements described above, Employee on behalf of herself, her heirs, representatives,
successors, and assigns, hereby irrevocably and unconditionally waives, releases and forever
discharges the City and/or any of its members of the City Council, officers, deputies, employees,
agents, servants, representatives, successors, assigns, predecessors, divisions, branches, or
attorneys, and all persons acting by, through, under or in concert with the City, past or present
(collectively "Released Parties"), and each and all of them, from any and all charges,
complaints, lawsuits, claims, liabilities, claims for relief, obligations, promises, agreements,
contracts, interests, controversies, injuries, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts, liens, judgments, indebtedness, and expenses (including
attorneys' fees, interest, expenses, and costs actually incurred), of any nature whatsoever,
whether in law or in equity, KNOWN OR UNKNOWN, suspected or unsuspected, actual or
potential (hereinafter referred to as "claim" or "claims") which Employee at any time had or
claimed to have, or which Employee may have or claim to have regarding any and all facts and
circumstances that have occurred as of the date of this Agreement, including, without limitation,
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any and all claims related or in any manner incidental to Employee's employment with the City
and her separation from employment with the City. It is expressly understood by Employee that
among the various rights and claims being waived by her in this release are those arising under
the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621, et. seq.).
E. Section 1542 Waiver. The matters specifically released and dismissed by this
Agreement shall include, but are not necessarily limited to, all claims and causes of action which
Employee has against the City and/or any of the Released Parties arising on or before the date
that this Agreement is executed, and ANY OTHER CLAIM OF ANY TYPE WHATSOEVER
AGAINST THE CITY, AND/OR ANY OTHER RELEASED PARTY, WHETHER SUCH CLAIM
IS KNOWN OR UNKNOWN TO EMPLOYEE AND/OR HER REPRESENTATIVES AND
ATTORNEYS arising on or before the date that this Agreement is executed. As a further
consideration and inducement for this Agreement, to the extent permitted by law, Employee
hereby waives and releases any and all rights under Section 1542 of the California Civil Code or
any analogous state, local, or federal law, statute, rule, order or regulation, she has or may have
with respect to any claims against the City. California Civil Code Section 1542 reads 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."
Employee hereby expressly agrees that this Agreement shall extend and apply to all unknown,
unsuspected, and unanticipated claims, injuries, losses and damages as well as those that are
now known and/or disclosed.
F. Entire Agreement and Admissibility. This Agreement constitutes the complete
understanding between or among Employee on the one hand, and the City and any other
Released Party on the other hand, and supersedes any and all prior agreements, promises,
representations, or inducements, no matter their form, concerning the subject matter of this
Agreement. The parties desire that this Agreement represents a single integrated contract
expressing the entire agreement of the parties with respect to matters set forth herein. No
promises, agreements, or modifications to this Agreement made subsequent to the execution of
this Agreement by these parties shall be binding unless reduced to writing and signed by
authorized representatives of these parties. The parties to this Agreement represent that this
Agreement may be used as evidence in any subsequent proceeding in which any of the parties
alleges a breach of this Agreement or seeks to enforce its terms, provisions or obligations.
G. Representation by Counsel. Employee acknowledges that she is fully aware of
her right to discuss any and all aspects of this matter with an attorney of her choice, that the City
has advised her of that right, that she has carefully read and fully understands the provisions of
this Agreement and that she is voluntarily entering into this Agreement.
H. Severability. Should any of the provisions or terms of this Agreement be
determined illegal, invalid, or unenforceable by any court or governmental agency of competent
jurisdiction, validity of the remaining parts, terms, or provisions, shall not be affected thereby
and said illegal, invalid, or unenforceable part, term, or provision shall be deemed' not to be a
part of this Agreement.
95921.1 AR090-001 EXHIBIT A—Page 2
Item 11.d. - Page 17
I. Governing Law. This Agreement is made and entered into in the State of
California, and shall be governed, interpreted, and enforced under the laws of the State of
California. The parties agree that jurisdiction and/or venue of any action involving the validity,
interpretation, or enforcement of this Agreement or any of its terms, provisions, or obligations, or
claiming breach thereof, shall exist exclusively in a court or government agency located within
the County of San Luis Obispo, State of California. The parties further agree that this
Agreement may be'used as evidence in any subsequent proceeding in which any of the parties
allege a breach of this Agreement or seeks to enforce its terms, conditions, provisions, or
obligations.
J. Time for Acceptance of Agreement. Employee may accept this offer by
signing below no later than twenty-one (21) days from the day she receives it and by returning
the signed and dated Agreement to the City no later than the close of business on the twenty-
first (21st) day after the date she receives this offer.
K. Right of Revocation. This Agreement contains a waiver and release of all
claims that Employee may currently have under the Age Discrimination in Employment Act of
1967 (29 U.S.C. §621-634). Employee understands and agrees that she:
1. Has reviewed all aspects of this Agreement;
2. Has carefully read and fully understands all of the provisions of this
Agreement;
3. Has had a full twenty-one (21) days within which to consider this
Agreement before executing it;
4. Is, through this Agreement, releasing the City from any and all claims she
may have;
5. Knowingly and voluntarily agrees to all of the terms set forth in this
Agreement;
6. Knowingly and voluntarily intends to be legally bound by the terms set
forth in this Agreement;
7. Was advised, and by this Agreement is advised in writing, to consider the
terms of this Agreement and consult with her attorney prior to executing
this Agreement;
8. Has a full seven (7) days following the execution of this Agreement to
revoke this Agreement and has been and is hereby advised in writing that
this Agreement shall not become effective or enforceable until the
revocation period has expired; and
9. Understands that rights or claims including those under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. §621-634) that may
arise after the date of this Agreement is executed are not waived.
PLEASE READ CAREFULLY. THIS SEPARATION AGREEMENT AND
RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
95921.1 AR090-001 EXHIBIT A—Page 3
Item 11.d. - Page 18
L. 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 her/its reasonable
attorneys' fees and costs.
M. California Joint Powers Insurance Authority. Manager hereby knowingly
waives any and all rights she may have pursuant to the provisions of the California Joint Powers
Insurance Authority (CJPIA) 2014-2015 Memorandum of Liability Coverage, titled "Chief
Executive Separation Payment."
Dated , 20_ CITY OF
By:
Dated: , 20_
Manager
APPROVED AS TO FORM:
By:
Date:
ATTEST:
By:
City Clerk
Date:
95921.1 AR090-001 EXHIBIT A—Page 4
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