Loading...
HomeMy WebLinkAboutReso 37-23 CM AppointmentRESOLUTION NO. 37-23 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA APPOINTING YVONNE KIMBALL AS CITY MANAGER AND APPROVING A CITY MANAGER EMPLOYMENT AGREEMENT BETWEEN THE CITY OF MORRO BAY AND YVONNE KIMBALL THE CITY COUNCIL City of Morro Bay, California WHEREAS, Morro Bay Municipal Code section 2.12.010 creates and establishes the office of the city manager and provides that the city manager shall be appointed by the City Council wholly on the basis of their administrative and executive ability and qualifications and shall hold office for and during the pleasure of the City Council; and WHEREAS, the City Council has been actively recruiting for the city manager position; and WHEREAS, as a result of this active search and recruitment, the City has identified Yvonne Kimball, who possesses the experience, qualifications, knowledge, skills and abilities to serve as the permanent city manager; and WHEREAS, pursuant to California Government Code Section 34851, the City Council shall fix the compensation of all appointive officers and employees by resolution and such officers and employees shall hold office at the pleasure of the City Council; and WHEREAS, the city manager shall receive such salary and benefits as set forth in an employment agreement between the City Council and city manager which shall be approved by this resolution. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council finds that the above recitals are true and correct and, accordingly, are incorporated herein as findings and a material part of this Resolution. Section 2. Yvonne Kimball is hereby appointed as the city manager of the City of Morro Bay beginning August 14, 2023. Section 3. The City Manager Employment Agreement between the City of Morro Bay and Yvonne Kimball, a copy of which is attached hereto as an attachment, is approved. Section 4. The Mayor is authorized to execute the City Manager Employment Agreement on behalf of the City subject to City Attorney approval as to form. 01172.0004/888878.2 Section 5. This Resolution shall immediately take effect upon passage. PASSED AND ADOPTED by the City Council of the City of Morro Bay California at a regular meeting held on 13'h day of June 2023 on the following vote: AYES: Wixom, Barton, Edwards, Ford, NOES: None ABSENT: None ABSTAIN: None RECUSED: None ATTEST: Dana Swanson, City Clerk Landrum Cara Wixom, Mayor O1172.00041888878.2 CITY OF MORRO BAY CITY MANAGER EMPLOYMENT AGREEMENT This CITY MANAGER EMPLOYMENT AGREEMENT (hereinafter referred to as the "AGREEMENT") is entered into the 13th day of June, 2023, by and between the CITY OF MORRO BAY, a general law city and municipal corporation (hereinafter referred to as the "CITY") and Yvonne Kimball, an individual (hereinafter referred to as "EMPLOYEE"). For purposes of this AGREEMENT, CITY and EMPLOYEE may be collectively referred to as the "Parties" or individually as a "Party." RECITALS WHEREAS, California Government Code section 34852 provides that an ordinance establishing a city manager form of government shall define the powers and duties of the city manager; and WHEREAS, the duties of the city manager of the CITY are set forth in full in Morro Bay Municipal Code ("MBMC") sections 2.12.060 through 2.12.220 and in Exhibit "A" to this AGREEMENT; and WHEREAS, pursuant to MBMC section 2.12.010, "[t]he city manager shall be appointed by the city council wholly on the basis of [her] administrative and executive ability and qualifications and shall hold office for and during the pleasure of the city council[;]" and WHEREAS, the City Council of the City of Morro Bay (hereinafter the "City Council") has determined that EMPLOYEE has the required executive and administrative qualifications and ability along with the level of education, experience, skills and expertise to serve as the city manager of the CITY. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the CITY and EMPLOYEE hereby agree as follows: AGREEMENT 1.0 EMPLOYMENT & DUTIES 1.1 Duties. The City Council hereby appoints EMPLOYEE as the City Manager for the CITY to perform the functions and duties of that position, as described in Exhibit "A" to this AGREEMENT, Morro Bay Municipal Code §§ 2.12.060 through 2.12.220, the California Government Code, and such other legally permissible and proper duties and functions as the City Council shall, from time to time, direct or assign to EMPLOYEE. CITY reserves the right to amend Morro Bay Municipal Code Chapter 2.12, including §§ 2.12.060 through 2.12.220, which define city manager functions and duties, as it deems necessary and appropriate, without requiring EMPLOYEE's acquiescence or an amendment of this AGREEMENT. EMPLOYEE agrees to perform all such functions and duties to the best of her ability and in an efficient, competent, and ethical manner. 01181.0001/896540.1 1.2 Work Schedule. It is recognized that the City Manager is expected to engage in the hours of work that are necessary to fulfill the obligations of the position, must be available at all times, and must devote a great deal of time outside the normal office hours to the business of the CITY. EMPLOYEE acknowledges that proper performance of the duties of city manager will require EMPLOYEE to generally observe normal business hours (currently 8:00 a.m. to 5:00 p.m., Monday through Friday, including a standard one -hour lunch period), as set by the CITY and as may be duly revised from time -to -time by the CITY, and will also often require the performance of necessary services outside of normal business hours. EMPLOYEE's compensation (whether salary or benefits) is not based on hours worked. 1.3 FLSA Exempt Status. EMPLOYEE acknowledges and agrees that the city manager position is that of an "exempt" classification under the overtime provisions of the federal Fair Labor Standards Act ("FLSA") and EMPLOYEE shall not be entitled to any compensation for overtime nor subject to such overtime provisions of the FLSA. 1.4 Other Activities. EMPLOYEE shall focus her professional time, ability, and attention to the CITY's business during the term of this AGREEMENT. EMPLOYEE shall not engage, without the express prior written consent of the City Council, in any other business duties or pursuits whatsoever, or directly or indirectly render any services of a business, commercial, or professional nature to any other person or organization, whether for compensation or otherwise, that is or may be competitive with the CITY, that might cause a conflict -of -interest with the CITY, or that otherwise might interfere with the business or operation of the CITY or the satisfactory performance of the functions and duties of the city manager. 1.5 Employment Status. EMPLOYEE shall serve at the will and pleasure of the City Council and understands that she shall be an "at -will" employee and shall be subject to summary dismissal without any right of notice or hearing, including any so-called due process pre - disciplinary "Skelly" hearing. The CITY may terminate EMPLOYEE at any time in accordance with Section 3.4 below. 1.6 Exemption from Personnel System. MBMC §2.32.040(A) expressly exempts the "city administrator" position, which position is now also known as the city manager position, from the CITY's Personnel System established in MBMC Chapter 2.32. EMPLOYEE understands, acknowledges and agrees that EMPLOYEE is exempt from the CITY's Personnel System. 1.7 CITY Documents. All data, studies, reports and other documents prepared by EMPLOYEE while performing her duties during the term of this AGREEMENT shall be furnished to and become the property of the CITY, without restriction or limitation on their use. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to EMPLOYEE in connection with the performance of this AGREEMENT shall be held confidential by EMPLOYEE to the extent permitted by applicable law, except as may be required by any governmental agency or court of competent jurisdiction. Such materials shall not be used by EMPLOYEE, without the prior written consent of the City Council, for any purposes other than the performance of EMPLOYEE's duties. Additionally, no such materials may be disclosed to any person or entity not connected with the performance of services under this AGREEMENT, 01181.0001/896540. l 2 except as required by law, any governmental agency, subpoena, or an order issued by a court of competent jurisdiction. 1.8 ICMA Code of Ethics. The Parties mutually desire for EMPLOYEE to be subject to and comply with the International City Management Association ("ICMA") Code of Ethics as described in Exhibit `B" to this AGREEMENT. EMPLOYEE commits to comply with the ICMA Code of Ethics. The CITY and the City Council agree that the City Council will not require that EMPLOYEE violate the ICMA Code of Ethics as part of her employment with the CITY. 2.0 COMPENSATION AND REIMBURSEMENT 2.1 Base Salary Steps. For the services rendered pursuant to this AGREEMENT, the CITY has adopted the following five step salary range for the position of city manager effective July 1, 2023 pursuant to the City's fiscal year 2023-2024 salary schedule: Step 1 $201,946 Step 2 $206,995 Step 3 $212,170 Step 4 $217,474 Step 5 $222,911 2.2 Current Base Salary. EMPLOYEE shall receive Step 4 of the salary range for the position of city manager, which is currently Two Hundred Seventeen Thousand Four Hundred Seventy Four Dollars ($217,474.00), as her annual base salary for the city manager position ("Salary") which shall be paid on a pro -rated basis bi-weekly at the same time as other employees of the CITY are paid. Such Salary shall be subject to normal and proper withholdings as determined by state and federal law and as determined appropriate by the City Council and shall be subject to payroll taxes, workers' compensation, and other payroll -related liability costs. 2.3 Salary Review. Following the performance evaluations set forth in Section 5.2 hereof and based on the results of those performance evaluations, the City Council may, in its sole discretion, increase EMPLOYEE's base salary to the next step. Any adjustments in the base salary following the annual performance evaluation under Section 5.2 are not automatic and instead shall be at the sole discretion of the City Council. 2.4 Business Expense Reimbursements. CITY shall reimburse EMPLOYEE for reasonable and necessary travel, subsistence, and other CITY related business expenses incurred by EMPLOYEE in the performance of her duties. All reimbursements shall be subject to and in accordance with California law, the CITY's adopted policies, and IRS rules for reporting compensation through payroll or reimbursement through accounts payable. 3.0 TERM 3.1 Commencement and Effective Date. EMPLOYEE shall commence service as the city manager for the CITY effective August 14, 2023, which date shall also be deemed the effective date of this Agreement ("Effective Date"). 01181.0001/896540.1 3.2 Term. CITY hereby employs EMPLOYEE indefinitely on an at -will basis until her services are terminated as provided for herein. 3.3 Termination by EMPLOYEE. EMPLOYEE may terminate this AGREEMENT at any time, provided EMPLOYEE provides the City Council with at least thirty (30) days' advance written notice. In the event EMPLOYEE terminates this AGREEMENT, EMPLOYEE expressly agrees that EMPLOYEE shall not be entitled to any severance pay. 3.4 Termination by CITY. The City Council may terminate this AGREEMENT at any time with or without cause, by providing written notice of the reason(s). The City Council's right to terminate EMPLOYEE pursuant to this Section 3.4 shall not be subject to or in any way limited by the CITY's Personnel Rules and Regulations, or any subsequent related resolutions, or past CITY practices related to the employment, discipline or termination of the CITY's employees. Nothing herein shall be construed to create a property interest, where one does not exist by rule of law in the position of city manager. (a) Termination by CITY for Cause. The CITY may terminate this AGREEMENT at any time by providing EMPLOYEE with five (5) business days' written notice of the termination for cause and the facts and grounds constituting such cause. The term "cause" shall be defined to include any substantial and material misconduct related to performance of official duties, including but not be limited to any of the following: (1) willful or persistent material breach of duties or inattention to duties, (2) resume fraud or other acts of material dishonesty, (3) unauthorized or excessive absence or leave, (4) conviction of a misdemeanor involving moral turpitude (i.e., offenses contrary to justice, honesty, or morality) or abuse of position as city manager, (5) conviction of a felony under California law, (6) willful and substantiated violation of federal, state or CITY discrimination and harassment laws/policies concerning race, religious creed, color, national origin, ancestry, physical handicap, marital status, sexual orientation, sex or age against a City official or employee, (7) violation of state law or the CITY's Municipal Code or ordinances, rules, and regulations, (8) use or possession of illegal drugs in violation of state law and/or CITY policy, (9) continued abuse of non-prescription drugs or alcohol that materially affects the performance of required duties as city manager, (10) engaging in conduct unbecoming for a public official or which brings disrepute to the CITY, (11) any illegal or unethical act involving personal gain, including conviction of theft or attempted theft, (12) EMPLOYEE's significant mismanagement of CITY finances, including act of using public funds such as donations to pay for unauthorized personal expenses, or similar acts, (13) any pattern of repeated, willful and intentional insubordination of the City Council, or (14) gross misfeasance or gross malfeasance. The term "cause" shall not be defined to include: (1) trivial misconduct; (2) immaterial misconduct; or (3) the mere loss of support or confidence by a majority of the City Council. For any of the foregoing, the CITY may, in its discretion, place EMPLOYEE on paid or unpaid administrative leave until resolution. If the CITY terminates for cause this AGREEMENT and the services of EMPLOYEE hereunder, the CITY shall have no obligation to pay EMPLOYEE any severance. (b) Termination by CITY Without Cause. By providing EMPLOYEE at least thirty (30) days' prior written notice thereof, the CITY may terminate EMPLOYEE without cause but rather based upon management reasons such as implementing the CITY's goals or policies, including but not limited to: i) change of administration, or ii) incompatibility of 01181.0001/896540.1 4 management styles. Termination without cause shall also include: a) a formal written request from three or more members of the City Council that the EMPLOYEE resign as City Manager; b) the elimination of the City Manager's position; c) a unilateral reduction in salary or other financial benefits of the EMPLOYEE. In the event EMPLOYEE is terminated without cause, EMPLOYEE expressly agrees that EMPLOYEE shall not be entitled to any severance pay as the result of the termination of this AGREEMENT except as provided in Section 4.1 below. 3.5 Waiver of Certain Discipline and Termination Rights. Except for the right under Government Code §54957(b) to have complaints or charges against an employee heard in a public session upon the employee's request, EMPLOYEE expressly waives any rights afforded under CITY's Personnel Rules and Regulations, and any rights afforded to EMPLOYEE under the Morro Bay Municipal Code (including Sections 2.12.230 and 2.12.240) or under State or Federal law, to any form of pre- or post- discipline or termination hearing, appeal, or other administrative process pertaining to discipline or termination, except those rights EMPLOYEE may have under the California or United States constitutions to a name -clearing hearing. 3.6 Limitation on Termination Following Election. Notwithstanding the provisions of Section 3.4 of this Agreement, EMPLOYEE shall not be terminated, except for cause as provided in Section 3.4(a) of this AGREEMENT, during or within a period of 90 days next succeeding any general municipal election held in the city at which election a member of the City Council is elected. 4.0 SEVERANCE 4.1 Severance Pay. In the event that EMPLOYEE is terminated without cause and does not challenge such termination, including but not limited to, by means of appeal or civil or administrative claim or liberty hearing, then CITY shall pay to EMPLOYEE severance in an amount equal to EMPLOYEE's monthly base salary then in effect multiplied by six (6). However, in the event that EMPLOYEE is terminated without cause either ninety (90) days before or after an election for one or more seats on the City Council, and provided she does not challenge such termination, including but not limited to, by means of appeal or civil or administrative claim or liberty hearing, then CITY, rather than the severance referenced immediately above, shall instead pay to EMPLOYEE severance in an amount equal to EMPLOYEE's monthly base salary then in effect multiplied by nine (9). Any severance payment shall not include the monetary value of benefits during said time, but salary only. Any and all severance rights are conditioned upon and in consideration for execution of the standard "Agreement of Separation, Severance, and General Release" attached hereto in form only as Exhibit "C." The City is currently a member of the CJPIA which makes available to EMPLOYEE up to six (6) months of compensation and COBRA benefits according to the terms and conditions of the CJPIA's Chief Executive Separation Payment provision as provided in the then -current CJPIA Memorandum of Coverage ("CJPIA Program"). The terms and conditions of the CJPIA Program may vary from time to time. The terms and conditions of the CJPIA Program, if any, in effect at the time of termination of Employee's employment will govern. If, at the time of City's termination of City Manager's employment, City is no longer a member of CJPIA, this paragraph shall not apply, and the benefit, if any, available to City Manager under the CJPIA Program shall be determined at the time of City's termination of City Manager, if at all. 01181.0001/896540.1 This AGREEMENT does not have a defined term, but in the event this AGREEMENT is construed by a court of law to have a fixed term, notwithstanding any other provision of this Section 4.1, should such proposed severance payment exceed the amount authorized to be paid under Government Code Section 53260, then the amount paid to EMPLOYEE shall be reduced in the amount necessary to comply with such statute. (Government Code Section 53260 provides that all contracts of employment with a city must include a provision limiting the maximum cash settlement for the termination of the contract to the monthly salary (excluding benefits) multiplied by the number of months left on the unexpired term, but not more than eighteen (18) months if the unexpired term exceeds 18 months.) 4.2 No Severance Pay if Termination for Cause or Initiated by EMPLOYEE As provided in Section 3.4(a), should EMPLOYEE be terminated for cause, the CITY shall have no obligation to pay the severance provided for in Section 4.1 above. As provided in Section 3.3, should EMPLOYEE initiate termination of this AGREEMENT, the CITY shall have no obligation to pay the severance provided for in Section 4.1 above. 4.3 Sole Rights. The severance rights provided in this Section 4.0 shall constitute the sole and only entitlement of EMPLOYEE with respect to severance pay in the event of the termination, other than for cause. EMPLOYEE expressly waives any and all other rights with respect to severance pay except as provided herein. 5.0 PERFORMANCE EVALUATIONS 5.1 Purpose. The performance review and evaluation process set forth herein is intended to provide review and feedback to EMPLOYEE so as to facilitate a more effective management of the CITY. Nothing herein shall be deemed to alter or change the employment status of EMPLOYEE as city manager (as set forth in Section 1.5 above), nor shall this Section 5.0 be construed as requiring "cause" to terminate this AGREEMENT, or the services of EMPLOYEE hereunder. 5.2 Annual Evaluation. The City Council shall initially review the performance of EMPLOYEE after six (6) full calendar months following the Effective Date. Thereafter, the City Council shall endeavor to conduct a formal or informal review and evaluate the performance of EMPLOYEE on an annual basis each calendar year pursuant to a date mutually agreed to by the City Council and EMPLOYEE, but with the first such annual evaluation being no later than the first anniversary of the Effective Date. Such performance review and evaluation shall be conducted concurrently with the annual base salary review provided for in Section 2.3 above, and in accordance with the purpose noted in Section 5.1 above. The City Council and EMPLOYEE shall also meet no later than ninety (90) days following the Effective Date, to establish mutually agreed upon performance goals. 6.0 BENEFITS AND OTHER COMPENSATION 6.1 Professional Development. The CITY recognizes its obligation to the professional development of its city manager, and agrees that EMPLOYEE shall be given adequate opportunities to develop and maintain skills and abilities as a public administrator. EMPLOYEE is expected and encouraged to and agrees to participate in professional organizations and to attend 01181.0001/896540.1 6 area and regional meetings and conferences related to matters of interest to the CITY consistent with the time required for such attendance in relationship to EMPLOYEE's other responsibilities as determined by the City Council. The City Council hereby agrees to budget an amount to be determined in the exercise of its sole discretion to pay the cost, travel and subsistence expense of EMPLOYEE for professional and/or official travel, meetings, and occasions adequate to continue professional development of EMPLOYEE and to adequately pursue necessary official functions for the CITY. EMPLOYEE shall be responsible for maintaining any professional certifications recognized as necessary or desirable in the performance of the duties hereunder. 6.2 Paid Leave. (a) Sick Leave: EMPLOYEE shall be entitled to ninety six (96) hours of paid sick leave annually to be accrued pro rata per pay period over the course of the fiscal year. Upon commencement of employment, EMPLOYEE shall be advanced five (5) sick leave days. (Sick leave days equal eight (8) hours.) EMPLOYEE may convert up to ninety-six (96) hours of unused, accumulated sick leave into paid vacation once during the following fiscal year at a ratio of two sick leave hours for one vacation hour. At least twenty-four (24) hours shall remain in EMPLOYEE's sick leave bank after any conversion is authorized. In addition, the right to convert does not carry over or rollover from calendar year to calendar year; failure to request conversion, in any calendar year, eliminates the right to do so for that calendar year. Sick leave that is compensated or converted to vacation cannot be used towards the California Public Employees' Retirement System ("CalPERS") sick leave credit option at retirement. EMPLOYEE shall be entitled to receive cash payment for up to 50% of unused sick leave upon resignation, up to a maximum amount of $4,500, provided that EMPLOYEE provides thirty (30) days written notice of intent to resign to the CITY. The CITY provides various leave banks for EMPLOYEE's use, with accrual and use record -keeping being required to properly maintain the leave banks. Time off of less than two (2) continuous hours in a day does not need to be recorded by EMPLOYEE as an exempt employee of the CITY. Abuse of this exception, such as daily use or random periods within a day, will not be allowed; however, this exception is also not allowed to be combined with other leaves. (b) Vacation Leave. EMPLOYEE shall be entitled to one hundred sixty (160) hours of vacation leave annually to be accrued pro rata per pay period over the course of the fiscal year. Upon commencement of employment, EMPLOYEE shall be advanced ten (10) days of vacation. (Vacation days equal eight (8) hours.) Upon separation, for any reason, EMPLOYEE shall be entitled to one hundred percent (100%) of the unused vacation leave on the books then existing, at the EMPLOYEE's then current hourly rate of pay. Unused vacation leave may be carried over into the following year to a maximum accrual of three hundred (300) hours. Any hours exceeding the maximum accumulation of 300 hours as of November 1st of each year will be paid out in the pay period including December 1st. EMPLOYEE shall be eligible for vacation leave cash out up to a maximum amount of 40 hours per calendar year, subject to the rules and limitations provided in the then -current Resolution Adopting Maximum Compensation and Benefits for Certain City Department Head Positions, as it may be amended from time to time. The CITY provides various leave banks for EMPLOYEE's use, with accrual and use record - keeping being required to properly maintain the leave banks. Time off of less than two (2) continuous hours in a day does not need to be recorded by EMPLOYEE as an exempt employee of the CITY. Abuse of this exception, such as daily use or random periods within a day, will not 01181.0001/896540.1 7 be allowed. Unrecorded time off shall not be allowed to be combined with other paid leave during any given work day. (c) Holiday Leave. EMPLOYEE shall be granted the following paid holidays (as defined in the Department Head Benefits Resolution): New Year's Day, Martin Luther King Day, Spring Break Holiday, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving Day, Day after Thanksgiving Day, Christmas Day, and Two (2) Floating holidays. Upon commencement of employment, EMPLOYEE shall be advanced two (2) floating holidays. Thereafter, two (2) floating holidays will be credited to EMPLOYEE's Holiday Leave bank July 1 st each year. EMPLOYEE may accumulate up to a maximum of forty-eight (48) hours holiday time. Hours of holiday accumulated over forty-eight (48) hours will be paid off. Holiday time is a compensable leave, and any hours remaining in the employee's holiday bank will be paid out upon separation from CITY service, at EMPLOYEE's then current hourly rate of pay. The CITY provides various leave banks for EMPLOYEE's use, with accrual and use record - keeping being required to properly maintain the leave banks. Abuse of this exception, such as daily use or random periods within a day, will not be allowed. Unrecorded time off shall not be allowed to be combined with other paid leave during any given work day. (d) Administrative Leave. EMPLOYEE shall be credited with eighty (80) hours of administrative leave annually on July 1. EMPLOYEE shall be provided seventy (70) hours of administrative leave beginning the first full pay period following the Effective Date of this AGREEMENT. Accrued administrative leave shall not exceed one hundred twenty (120) total banked hours at any time. The time during the fiscal year at which EMPLOYEE may take administrative leave shall be determined by the Mayor. Administrative leave is a compensable leave, and any hours remaining in EMPLOYEE's administrative leave bank will be paid out upon separation from CITY service, at EMPLOYEE's then current hourly rate of pay. Administrative leave time must be taken off on an hour by hour basis equaling employee actual time off, regardless of accumulation rates. Up to eighty (80) hours of administrative leave per fiscal year may be taken by EMPLOYEE. The City Council may, due to exceptional and documented circumstances warranting additional administrative leave, grant administrative leave in excess of the eighty (80) hour per fiscal year limit but no more than one hundred twenty (120) hours in a single fiscal year. 6.3 Health & Welfare Benefits. CITY shall contribute the full amount of the EMPLOYEE's preferred health, dental and vision plan, on offer currently by CITY for its employees, for EMPLOYEE plus her family. 6.4 Retirement. (a) Retirement Plan. EMPLOYEE is believed to be a PEPRA new member as defined by CalPERS and as mandated by the Public Employees' Pension Reform Act of 2013. Accordingly, EMPLOYEE shall be entitled to participate in the CITY's CalPERS Retirement Program with the 2% at 62 formula and 3 Year Average formula for calculating final retirement compensation. (b) Employee Contribution. EMPLOYEE shall be responsible for the full member contribution for EMPLOYEE's CalPERS retirement plan. 01181.0001/896540.1 8 6.5 Automobile. EMPLOYEE shall receive a Six Hundred Dollar ($600.00) per month car reimbursement for use of a personal vehicle in pursuit of recognized official duties. EMPLOYEE shall be responsible for any personal income tax that may result from that reimbursement. 6.6 Deferred Compensation. CITY agrees that EMPLOYEE may, at her sole costs and expense, participate in a qualified Section 457 Plan from one of the CITY approved plans selected by EMPLOYEE. CITY further agrees that it shall match City Manager's contributions, if any, into CITY's Deferred Compensation Plan on a dollar -for -dollar basis, up to a maximum of Five Thousand Dollars ($5,000.00) per year. Any amounts contributed under this section by CITY shall be to the benefit of EMPLOYEE in accordance with the CITY's Deferred Compensation Plan participation agreement. No requirement of any provision of this subsection shall be effective if it would violate any provision of the 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. 6.7 Bonding. CITY shall bear the full cost of any fidelity or other bonds required for EMPLOYEE under any law or CITY ordinance. 6.8 Life Insurance. EMPLOYEE shall be entitled to a $50,000.00 life insurance policy. 6.9 Long -Term Disability ("LTD") Insurance Program. The CITY shall provide LTD to EMPLOYEE in the same manner and benefit level as provided Department Heads, and pay the cost for the plan. 6.10 Business Equipment. The CITY will provide to EMPLOYEE any job - related personal tools or equipment, such as a computer, desk, land -line phone, file cabinets, table and chairs etc., that serve the professional development of EMPLOYEE and/or is needed to perform EMPLOYEE'S functions and duties. Upon termination, for any reason, EMPLOYEE shall return all business equipment to CITY no later than EMPLOYEE's last day of employment. CITY shall provide One Hundred Dollars ($100) per month cell phone and data reimbursement for EMPLOYEE's use of a cell phone for City business. EMPLOYEE shall be responsible for any personal income tax that may result from that reimbursement. 6.11 Moving Expenses. City shall pay EMPLOYEE up to Seven Thousand Five Hundred Dollars ($7,500) to help defray EMPLOYEE's moving and relocation expenses incurred related to her employment with CITY within one year of the Effective Date; provided, that those expenses shall only be due upon CITY's receipt of satisfactory proof of actual expenditures paid by EMPLOYEE for those expenses and approval of those expenditures by the Mayor and shall be paid within thirty days after submission of that satisfactory proof. 6.12 Bereavement Leave. EMPLOYEE shall be entitled to up to three (3) days paid bereavement leave in the event of the death of a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent -in-law as defined in Government Code Section 12945.2. For purposes of complying with Government Code Section 12945.7, EMPLOYEE will be 01181.0001/896540.1 9 provided at least five days of bereavement leave total, and for any unpaid bereavement leave days may use accrued and available vacation leave, sick leave, or administrative leave. 7.0 INDEMNIFICATION To the extent mandated by the California Government Code, the CITY shall defend, hold harmless, and indemnify EMPLOYEE against any tort, professional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of EMPLOYEE's services under this AGREEMENT. This section shall not apply to any intentional tort or crime committed by EMPLOYEE, to any action outside the course and scope of EMPLOYEE's employment, or any other intentional or malicious conduct or gross negligence of EMPLOYEE. 8.0 OTHER TERMS- CONDITIONS OF EMPLOYMENT The City Council, in consultation with EMPLOYEE, may establish any such other terms and conditions of employment as it may determine from time to time, provided such terms and conditions do not exceed the maximum salary and benefits approved by the City Council and are reduced to writing and signed by EMPLOYEE and the Mayor. 9.0 GENERAL PROVISIONS 9.1 Entire AGREEMENT. This AGREEMENT represents the entire AGREEMENT and understanding between the Parties and supersedes any and all other agreements and understandings, either oral or in writing, between the Parties with respect to EMPLOYEE's employment by the CITY and contains all of the covenants and agreements between the Parties with respect to such employment. No ordinances or resolutions of CITY governing employment, including the Personnel System, shall apply unless specified herein. Each Party to this AGREEMENT acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either Party, or anyone acting on behalf of either Party, which are not embodied herein, and that no other agreement, statement or promises not contained in this AGREEMENT shall be valid or binding upon either Party. 9.2 Amendment. This AGREEMENT may be amended at any time by the mutual consent of the Parties by an instrument in writing, which amendment shall require City Council approval by the affirmative vote of three (3) members of the Council. 9.3 Notices. Any notice required or permitted by this AGREEMENT shall be in writing and shall be personally served or shall be sufficiently given when served upon the other Party as sent by United States Postal Service, postage prepaid and addressed as follows: To CITY: Mayor City of Morro Bay 595 Harbor Street Morro Bay, California 93442 To EMPLOYEE: Yvonne Kimball [Address on file with Human Resources] 01181.0001/896540.1 10 Notices shall be deemed given as of the date of personal service or upon the date of deposit in the course of transmission with the United States Postal Service. 9.4 Conflicts Prohibited. During the term of this AGREEMENT, EMPLOYEE shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of EMPLOYEE's duties under this AGREEMENT. EMPLOYEE shall comply with all requirements of law, including but not limited to, Sections 87100 et seq., Section 1090 and Section 1126 of the Government Code, and all other similar statutory and administrative rules. Whenever any potential conflict arises or may appear to arise, the obligation shall be on Employee to seek legal advice concerning whether such conflict exists and Employee's obligations arising therefrom. 9.5 Effect of Waiver. The failure of either Party to insist on 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. 9.6 Partial Invalidity. If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 9.7 Governing Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, which are in full force and effect as of the date of execution and delivery by each Party hereto. 9.8 Government Code H 53243 - 53243.4. Assembly Bill 1344, which was subsequently enacted as Government Code §§ 53243 - 53243.4, sought to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. These statutes also require that contracts between local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of her office or position to provide reimbursement to the local agency for the following forms of payment: (i) paid leave salary; (ii) criminal defense costs; (iii) cash settlement payments; and (iv) any non -contractual settlement payments. Accordingly, the Parties agree that it is their mutual intent to fully comply with these Government Code sections and all other applicable law as it exists as of the date of execution of this AGREEMENT and as such laws may be amended from time to time thereafter. Specifically, the following Government Code sections are called out and hereby incorporated by this AGREEMENT: §53243. Reimbursement of paid leave salary required upon conviction of crime involving office or position. §53243. L Reimbursement of legal criminal defense upon conviction of crime involving office or position. §53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position. 01181.0001/896540.1 11 §53243.3. Reimbursement of noncontractual payments upon conviction or crime involving office or position. §53243.4. "Abuse of office or position" defined. EMPLOYEE represents that EMPLOYEE has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to EMPLOYEE, including that EMPLOYEE agrees any cash settlement or severance related to a termination EMPLOYEE may receive from the CITY shall be fully reimbursed to the local agency if EMPLOYEE is convicted of a crime involving an abuse of EMPLOYEE's office or position. The Government Code provisions referenced in this section are attached hereto in Exhibit "D". 9.9 Independent Legal Advice. The CITY and EMPLOYEE represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this AGREEMENT, or had the opportunity to do so, and the CITY and EMPLOYEE further represent and warrant that each has carefully reviewed this entire AGREEMENT and that each and every term thereof is understood and that the terms of this AGREEMENT are contractual and not a mere recital. This AGREEMENT shall not be construed against the Party or its representatives who drafted it or who drafted any portion thereof. IN WITNESS WHEREOF, the City of Morro Bay has caused this AGREEMENT to be signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly authorized, and EMPLOYEE has signed and executed this AGREEMENT, all in triplicate. CITY OF MORRO BAY Carla Wixom Carla Wixom (Jun 19, 2023 10:57 PDT) Carla Wixom, Mayor ATTEST: Heather Good , DeputyCity Clerk for eJun2 023 11;0f PDT) Dana Swanson, City Cleric APPROVED AS TO FORM: dV6� - t:, Ale�uyce�e�^ Chris F. Meumeyer (Jun 14, 202`.i10:56 PDT) Chris F. Neumeyer, City Attorney EMPLOYEE Ym me klifball Wonne Kimball (Jun 17, 202316:55 PDT) Yvonne Kimball 01181.0001/896540.1 12 EXHIBIT A JOB DESCRIPTION CITY MAN A car R 01181.0001/896540.1 A-1 CITY OF MORRO BAY CITY MANAGER DEFINITION Under broad policy guidance of the City Council, performs high level of administrative, technical and professional work in directing and supervising the administration of city government. ESSENTIAL DUTIES & RESPONSIBILITIES 1. Manages and supervises all departments of the city to achieve goals within available resources. 2. Directs and monitors department assignments; reviews progress and directs changes as needed. 3. Trains, motivates and evaluates assigned staff. 4. Provides leadership and direction in the development of short and long range plans. 5. Gathers, interprets, and prepares data for studies, reports and recommendations. 6. Coordinates department activities with other departments and agencies as needed. 7. Provides professional advice to the City Council and Department Heads. 8. Makes presentations to the City Council, boards, commissions, civic groups and the general public. 9. Communicates official plans, policies and procedures to staff and the general public. 10. Performs cost control activities. 11. Monitors revenues and expenditures in assigned area to assure sound fiscal control 12. Assures effective and efficient use of budgeted funds, personnel, materials, facilities, and time. 13. Determines work procedures and expedites workflow. 14. Studies and standardizes procedures to improve efficiency and effectiveness of operations. 15. Issues written and oral instructions. 16. Assigns duties and examines work for exactness, neatness, and conformance to policies and procedures. 17. Maintains harmony among workers and resolves grievances. 18. Adjusts errors or complaints. 19. Prepares a variety of studies, reports and related information for decision -making purposes. 20. Appoints and removes all department heads and employees of the City. 21. Sees that all laws and ordinances are upheld. CITY MANAGER 22. Prepares and submits a preliminary annual City budget. 23. Administers the adopted budget of the City. 24. Advises the City Council of financial conditions and current and future City needs. 25. Attends all meetings of the City Council, and meetings at which attendance may be required by the Council. 28. Other duties as required by the City Council and as set forth in the Morro Bay Municipal Code, Chapter 2.12. QUALIFICATIONS Knowledge of: Modern policies and practices of public administration; working knowledge of municipal finance, human resources, public works, public safety, and community development; preparing and administering municipal budgets; planning, directing, and administering municipal programs. Abili to: Prepare and analyze comprehensive reports; carry out assigned projects to their completion; effectively communicate verbally and in writing; establish and maintain effective working relationships with employees, City officials and the public; efficiently and effectively administer a municipal government. Education and Experience: Graduation from an accredited four-year college or university with a degree in public administration, political science, business management or a closely related field; and, five (5) years experience in municipal administration. Masters degree preferred. Valid and appropriate California Driver=s License. TOOLS & EQUIPMENT USED Requires frequent use of personal computer, including word processing and spreadsheet programs; calculator, telephone, copy machine and fax machine. 2 CITY MANAGER PHYSICAL DEMANDS The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. While performing the duties of this job, the employee is frequently required to sit an talk or hear. The employee is occasionally required to walk; use hands to finger, handle, or feel objects, tools, or controls; and reach with hands and arms. The employee must occasionally lift and/or move up to 10 pounds. Specific vision abilities required by this job include close vision and the ability to adjust focus. WORK ENVIRONMENT The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. The noise level in the work environment is usually moderately quiet. SELECTION GUIDELINES Formal application, rating of education and experience, oral interview and reference check; job related tests may be required. The duties listed above are intended only as illustrations of the various types of work that may be performed. The omission of specific statements of duties does not exclude them from the position if the work is similar, related or a logical assignment to the position. The job description does not constitute an employment agreement between the employer and employee and is subject to change by the employer as the needs of the employer and requirements of the job change. Approved by the Morro Bay City Council on May 28, 1996 h/jdctyadm ICMA Code of Ethics with Guidelines (April 2023) 01181.0001/896540.1 B-1 IC MA I ethics ICMA Code of Ethics with Guidelines The ICMA Code of Ethics was adopted by the ICMA membership in 1924, and most recently amended by the membership in April 2023. The Guidelines for the Code were adopted by the ICMA Executive Board in 1972, and most recently revised in June 2020. The mission of ICMA is to advance professional local government through leadership, management, innovation, and ethics. To further this mission, certain principles, as enforced by the Rules of Procedure, shall govern the conduct of every member of ICMA, who shall: Tenet 1. We believe professional management is essential to effective, efficient, equitable, and democratic local government. Tenet 2. Affirm the dignity and worth of local government services and maintain a deep sense of social responsibility as a trusted public servant. GUIDELINE Advice to Officials of Other Local Governments. When members advise and respond to inquiries from elected or appointed officials of other local governments, they should inform the administrators of those communities in order to uphold local government professionalism. Tenet 3. Demonstrate by word and action the highest standards of ethical conduct and integrity in all public, professional, and personal relationships in order that the member may merit the trust and respect of the elected and appointed officials, employees, and the public. GUIDELINES Public Confidence. Members should conduct themselves so as to maintain public confidence in their position and profession, the integrity of their local government, and in their responsibility to uphold the public trust. Length of Service. For chief administrative/executive officers appointed by a governing body or elected official, a minimum of two years is considered necessary to render a professional service to the local government. In limited circumstances, it may be in the best interests of the local government and the member to separate before serving two years. Some examples include refusal of the appointing authority to honor commitments concerning conditions of employment, a vote of no confidence in the member, or significant personal issues. It is the responsibility of an applicant for a position to understand conditions of employment, including expectations of service. Not understanding the terms of employment prior to accepting does not justify COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. premature separation. For all members a short tenure should be the exception rather than a recurring experience, and members are expected to honor all conditions of employment with the organization. Appointment Commitment. Members who accept an appointment to a position should report to that position. This does not preclude the possibility of a member considering several offers or seeking several positions at the same time. However, once a member has accepted a formal offer of employment, that commitment is considered binding unless the employer makes fundamental changes in the negotiated terms of employment. Credentials. A member's resume for employment or application for ICMA's Voluntary Credentialing Program shall completely and accurately reflect the member's education, work experience, and personal history. Omissions and inaccuracies must be avoided. Professional Respect. Members seeking a position should show professional respect for persons formerly holding the position, successors holding the position, or for others who might be applying for the same position. Professional respect does not preclude honest differences of opinion; it does preclude attacking a person's motives or integrity. Reporting Ethics Violations. When becoming aware of a possible violation of the ICMA Code of Ethics, members are encouraged to report possible violations to ICMA. In reporting the possible violation, members may choose to go on record as the complainant or report the matter on a confidential basis. Confidentiality. Members shall not discuss or divulge information with anyone about pending or completed ethics cases, except as specifically authorized by the Rules of Procedure for Enforcement of the Code of Ethics. Seeking Employment. Members should not seek employment for a position that has an incumbent who has not announced his or her separation or been officially informed by the appointive entity that his or her services are to be terminated. Members should not initiate contact with representatives of the appointive entity. Members contacted by representatives of the appointive entity body regarding prospective interest in the position should decline to have a conversation until the incumbent's separation from employment is publicly known. Relationships in the Workplace. Members should not engage in an intimate or romantic relationship with any elected official or board appointee, employee they report to, one they appoint and/or supervise, either directly or indirectly, within the organization. This guideline does not restrict personal friendships, professional mentoring, or social interactions with employees, elected officials and Board appointees. COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. Influence. Members should conduct their professional and personal affairs in a manner that demonstrates that they cannot be improperly influenced in the performance of their official duties. Conflicting Roles. Members who serve multiple roles — either within the local government organization or externally — should avoid participating in matters that create either a conflict of interest or the perception of one. They should disclose any potential conflict to the governing body so that it can be managed appropriately. Conduct Unbecoming. Members should treat people fairly, with dignity and respect and should not engage in, or condone bullying behavior, harassment, sexual harassment or discrimination on the basis of race, religion, national origin, age, disability, gender, gender identity, or sexual orientation. Tenet 4. Serve the best interests of all community members. GUIDELINES Impacts of Decisions. Members should inform their governing body of the anticipated effects of a decision on people in their jurisdictions, especially if specific groups may be disproportionately harmed or helped. Inclusion. To ensure that all the people within their jurisdiction have the ability to actively engage with their local government, members should strive to eliminate barriers to public involvement in decisions, programs, and services. Tenet S. Submit policy proposals to elected officials; provide them with facts, and technical and professional advice about policy options; and collaborate with them in setting goals for the community and organization. Tenet 6. Recognize that elected representatives are accountable to their community for the decisions they make; members are responsible for implementing those decisions. Tenet 7. Refrain from all political activities which undermine public confidence in professional administrators. Refrain from participation in the election of the members of the employing legislative body. GUIDELINES Elections of the Governing Body. Members should maintain a reputation for serving equally and impartially all members of the governing body of the local government they serve, regardiess of party. To this end, they should not participate in an election campaign on behalf of or in opposition to candidates for the governing body. Elections of Elected Executives. Members shall not participate in the election campaign of any candidate for mayor or elected county executive. COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. Running for Office. Members shall not run for elected office or become involved in political activities related to running for elected office, or accept appointment to an elected office. They shall not seek political endorsements, financial contributions or engage in other campaign activities. Elections. Members share with their fellow citizens the right and responsibility to vote. However, in order not to impair their effectiveness on behalf of the local governments they serve, they shall not participate in political activities to support the candidacy of individuals running for any city, county, special district, school, state or federal offices. Specifically, they shall not endorse candidates, make financial contributions, sign or circulate petitions, or participate in fund-raising activities for individuals seeking or holding elected office. Elections relating to the Form of Government. Members may assist in preparing and presenting materials that explain the form of government to the public prior to a form of government election. If assistance is required by another community, members may respond. Presentation of Issues. Members may assist their governing body in the presentation of issues involved in referenda such as bond issues, annexations, and other matters that affect the government entity's operations and/or fiscal capacity. Personal Advocacy of Issues. Members share with their fellow citizens the right and responsibility to voice their opinion on public issues. Members may advocate for issues of personal interest only when doing so does not conflict with the performance of their official duties. Tenet 8. Make it a duty continually to improve the member's professional ability and to develop the competence of associates in the use of management techniques. GUIDELINES Self -Assessment. Each member should assess his or her professional skills and abilities on a periodic basis. Professional Development. Each member should commit at least 40 hours per year to professional development activities that are based on the practices identified by the members of ICMA. Tenet 9. Keep the community informed on local government affairs. Encourage and facilitate active engagement and constructive communication between community members and all local government officials. Tenet 10. Resist any encroachment on professional responsibilities, believing the member should be free to carry out official policies without interference, and handle each problem without discrimination on the basis of principle and justice. COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. GUIDELINE Information Sharing. The member should openly share information with the governing body while diligently carrying out the member's responsibilities as set forth in the charter or enabling legislation. Tenet 11. Manage all personnel matters with fairness and impartiality. GUIDELINE Equal Opportunity. All decisions pertaining to appointments, pay adjustments, promotions, and discipline should prohibit discrimination because of race, color, religion, sex, national origin, sexual orientation, political affiliation, disability, age, or marital status. It should be the members' personal and professional responsibility to actively recruit and hire a diverse staff throughout their organizations. Tenet 12. Public office is a public trust. A member shall not leverage his or her position for personal gain or benefit. GUIDELINES Gifts. Members shall not directly or indirectly solicit, accept or receive any gift if it could reasonably be perceived or inferred that the gift was intended to influence them in the performance of their official duties; or if the gift was intended to serve as a reward for any official action on their part. The term "Gift" includes but is not limited to services, travel, meals, gift cards, tickets, or other entertainment or hospitality. Gifts of money or loans from persons other than the local government jurisdiction pursuant to normal employment practices are not acceptable. Members should not accept any gift that could undermine public confidence. De minimus gifts may be accepted in circumstances that support the execution of the member's official duties or serve a legitimate public purpose. In those cases, the member should determine a modest maximum dollar value based on guidance from the governing body or any applicable state or local law. The guideline is not intended to apply to normal social practices, not associated with the member's official duties, where gifts are exchanged among friends, associates and relatives. Investments in Conflict with Official Duties. Members should refrain from any investment activity which would compromise the impartial and objective performance of their duties. Members should not invest or hold any investment, directly or indirectly, in any financial business, commercial, or other private transaction that creates a conflict of interest, in fact or appearance, with their official duties. COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. In the case of real estate, the use of confidential information and knowledge to further a member's personal interest is not permitted. Purchases and sales which might be interpreted as speculation for quick profit should be avoided (see the guideline on "Confidential Information"). Because personal investments may appear to influence official actions and decisions, or create the appearance of impropriety, members should disclose or dispose of such investments prior to accepting a position in a local government. Should the conflict of interest arise during employment, the member should make full disclosure and/or recuse themselves prior to any official action by the governing body that may affect such investments. This guideline is not intended to prohibit a member from having or acquiring an interest in or deriving a benefit from any investment when the interest or benefit is due to ownership by the member or the member's family of a de minimus percentage of a corporation traded on a recognized stock exchange even though the corporation or its subsidiaries may do business with the local government. Personal Relationships. In any instance where there is a conflict of interest, appearance of a conflict of interest, or personal financial gain of a member by virtue of a relationship with any individual, spouse/partner, group, agency, vendor or other entity, the member shall disclose the relationship to the organization. For example, if the member has a relative that works for a developer doing business with the local government, that fact should be disclosed. Confidential Information. Members shall not disclose to others, or use to advance their personal interest, intellectual property, confidential information, or information that is not yet public knowledge, that has been acquired by them in the course of their official duties. Information that may be in the public domain or accessible by means of an open records request, is not confidential. Private Employment. Members should not engage in, solicit, negotiate for, or promise to accept private employment, nor should they render services for private interests or conduct a private business when such employment, service, or business creates a conflict with or impairs the proper discharge of their official duties. Teaching, lecturing, writing, or consulting are typical activities that may not involve conflict of interest, or impair the proper discharge of their official duties. Prior notification of the appointing authority is appropriate in all cases of outside employment. Representation. Members should not represent any outside interest before any agency, whether public or private, except with the authorization of or at the direction of the appointing authority they serve. Endorsements. Members should not endorse commercial products or services by agreeing to use their photograph, endorsement, or quotation in paid or other commercial advertisements, COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. marketing materials, social media, or other documents, whether the member is compensated or not for the member's support. Members may, however, provide verbal professional references as part of the due diligence phase of competitive process or in response to a direct inquiry. Members may agree to endorse the following, provided they do not receive any compensation: (1) books or other publications; (2) professional development or educational services provided by nonprofit membership organizations or recognized educational institutions; (3) products and/or services in which the local government has a direct economic interest. Members' observations, opinions, and analyses of commercial products used or tested by their local governments are appropriate and useful to the profession when included as part of professional articles and reports. COPYRIGHT © 2023 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED. L*A18i31 o- AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE 1. PARTIES This Agreement of Separation, Severance, and General Release (hereinafter referred to as the "AGREEMENT") is entered into by and between the City of Morro Bay, a general law city and municipal corporation (hereinafter referred to as "THE CITY"), and Yvonne Kimball, an individual (hereinafter referred to as "EMPLOYEE"). 2. RECITALS 2.1 EMPLOYEE was hired by THE CITY as an at -will city manager effective August 14, 2023 serving at the pleasure of the City Council of THE CITY pursuant to a written contract, a copy of which is attached hereto as Exhibit "A" ("THE CONTRACT"). EMPLOYEE is currently over 40 years of age. 2.2 THE CITY and EMPLOYEE desire that EMPLOYEE separate from employment with THE CITY and enter into a severance agreement whereby EMPLOYEE receives severance compensation in exchange for executing a general release and waiver of any and all claims that EMPLOYEE may have against THE CITY, including but not limited to its elected and non -elected officials, employees, attorneys, and agents. Accordingly, the parties hereto intend by this AGREEMENT to mutually conclude any and all employment relationships between THE CITY and EMPLOYEE by means of EMPLOYEE's separation by means of as of . This AGREEMENT sets forth the full and complete terms and conditions concluding EMPLOYEE's employment relationship with the CITY and any obligations related thereto, including any provided under THE CONTRACT. 2.3 In accordance with this AGREEMENT and with applicable state and federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post - employment rights, including but not limited to, EMPLOYEE's rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). 3. CONSIDERATION 3.1 EMPLOYEE shall receive payment to her at the time of her voluntary separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or all other wage compensation/benefits owed to EMPLOYEE upon separation of employment, as required by state, federal or municipal law or THE CONTRACT or any other agreement with THE CITY. 01181.0001/896540.1 C-1 3.2 In exchange for the waivers and releases set forth herein, THE CITY shall cause to be paid to EMPLOYEE an additional compensatory payment as severance pay by means of a lump sum payment of and _ cents ($ .00), as set forth in THE CONTRACT in the form of a check made payable to EMPLOYEE to be mailed to EMPLOYEE at EMPLOYEE's home address via certified mail return receipt requested within thirty (30) business days after the EFFECTIVE DATE (as defined below) of this AGREEMENT. The lump sum payment shall be subject to applicable state and federal withholdings as determined appropriate by THE CITY. 3.3 In exchange for the severance payment provided for herein, EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at anytime from the beginning of time up to and including _, (hereinafter referred to collectively as "CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims based upon any alleged breach of THE CONTRACT or any other agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act, or any claim or cause of action including, but not limited to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code §§ 12900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, and any other federal, state, or local human rights, civil rights, or employment discrimination or employee rights statute, rule, or regulation. Nothing herein shall be interpreted as a release or waiver of any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from participating in any claims or administrative action brought by a state or federal agency. Furthermore, nothing herein shall be interpreted as a release or waiver of THE CITY's statutory obligations relative to providing defense and indemnification of public employees, if any, including but not limited to Government Code Sections 825-825.6 and Sections 995-996.6. This AGREEMENT, however, does operate to prevent EMPLOYEE from seeking or recovering monetary damages or other individual -specific relief in connection with any such claims or administrative action brought by a state or federal agency. 01181.0001/896540.1 C-2 3.4 Specific Acknowledgment of Waiver of Claims under ADEA and OWBPA The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual's employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the "OWBPA," Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this AGREEMENT, EMPLOYEE acknowledges that EMPLOYEE knowingly and voluntarily, for just compensation in addition to anything of value to which EMPLOYEE was already entitled, waives and releases any rights she may have under the ADEA and/or OWBPA. EMPLOYEE further acknowledges that EMPLOYEE has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: (a) This waiver/release is written in a manner understood by EMPLOYEE; (b) EMPLOYEE is aware of, and/or has been advised of, EMPLOYEE's rights under the ADEA and OWBPA, and of the legal significance of EMPLOYEE's waiver of any possible claims EMPLOYEE currently may have under the ADEA, OWBPA and/or similar age discrimination laws; (c) EMPLOYEE is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this AGREEMENT and the waiver and release of any rights EMPLOYEE may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of EMPLOYEE's own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) days; (d) The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE of this AGREEMENT; (e) EMPLOYEE has been advised by this writing that EMPLOYEE should consult with an attorney prior to executing this AGREEMENT; (f) EMPLOYEE has discussed this waiver and release with, and been advised with respect thereto by, EMPLOYEE's counsel of choice or at least had the opportunity to do so, and EMPLOYEE represents by signing this AGREEMENT that EMPLOYEE does not need any additional time within which to review and consider this AGREEMENT; (g) EMPLOYEE has seven (7) days following EMPLOYEE's execution of this AGREEMENT to revoke the AGREEMENT; (h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to THE CITY pursuant to Paragraph 7.9 herein, and must state, "I hereby revoke my acceptance of our Agreement of Severance and General Release;" and 01181.0001/896540.1 C-3 (i) This AGREEMENT shall not be effective until all parties have signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution of same ("EFFECTIVE DATE"). 4. UNKNOWN CLAIMS In relation to the release provisions of Paragraph 3 above, EMPLOYEE understands that California Civil Code section 1542 reads as follows: "General Release --Claims Extinguished" "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." EMPLOYEE hereby waives the protection of California Civil Code section 1542. 5. WAIVER OF ADDITIONAL CLAIMS EMPLOYEE hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3 and 4above. 6. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each other party as follows: 6.1 Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of this AGREEMENT and of its legal effect. 6.2 No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other party in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT. 6.3 Independent Investigation: Each party to this AGREEMENT has made such investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters pertaining thereto, as it deems necessary. 01181.0001/896540.1 C-4 6.4 Mistake Waived: In entering into this AGREEMENT, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever. 6.5 Later Discovery: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that EMPLOYEE fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 6.6 Indemnification: EMPLOYEE agrees to indemnify and hold harmless THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees that EMPLOYEE shall be exclusively liable for the payment of all taxes for which EMPLOYEE is responsible, if any, as a result of EMPLOYEE's receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT. 6.7 Future Cooperation & Consultation fees: EMPLOYEE shall execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this AGREEMENT. EMPLOYEE shall provide THE CITY with consultation services (including deposition or trial testimony) in any litigation involving THE CITY which is reasonably related to acts or occurrences transpiring during EMPLOYEE's employment. Said services shall be provided as needed by THE CITY at a rate of $100.00 per hour. 6.8 Return of Confidential Information and Property: Prior to the separation date, EMPLOYEE shall submit a written inventory of, and return to the City Clerk, all City keys, equipment, computer identification cards or codes, and other equipment or materials or confidential documents provided to or obtained by EMPLOYEE during the course of EMPLOYEE's employment with THE CITY. 6.9 No Pending Claims and/or Actions: EMPLOYEE represents that EMPLOYEE has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or federal agency or court; that EMPLOYEE will not do so at any time 01181.0001/896540.1 C-5 hereafter for any claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where ever filed, EMPLOYEE shall forthwith withdraw and dismiss any such complaints or charges. Nothing herein shall be interpreted as a release or waiver of any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from participating in any claims or administrative action brought by a state or federal agency. 6.10 Ownership of Claims: EMPLOYEE represents and warrants as a material term of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE further warrants and represents that none of the CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity. 6.11 Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 6.12 Authori : Each party represents to the other that it has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other agreement to which they are a party or by which they are bound by entering into this AGREEMENT. The parties represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed. 7. MISCELLANEOUS 7.1 No Admission: Nothing contained herein shall be construed as an admission by THE CITY of any liability of any kind. THE CITY denies any liability in connection with any claim and intends hereby solely to avoid potential claims and/or litigation and buy its peace. 7.2 Governing Law: This AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 7.3 Full Integration:_ This AGREEMENT is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This AGREEMENT may be amended only by a further agreement in writing, signed by the parties hereto. 7.4 Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest. 01181.0001/896540.1 C-6 7.5 Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the parties agree that same shall not be construed against any party. 7.6 Severability: In the event that any term, covenant, condition, provision or agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement and the remainder of this AGREEMENT shall still be in full force and effect. 7.7 Titles: The titles included in this AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT. 7.8 Counterparts: This AGREEMENT may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective as to all parties. 7.9 Notice: Any and all notices given to any party under this AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing parry's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given and/or received on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: At EMPLOYEE's home address on file with THE CITY. As to THE CITY: Mayor City of Morro Bay 595 Harbor Street Morro Bay, California 93442 IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has signed and executed this AGREEMENT, and the attorneys for THE CITY and EMPLOYEE, if any, have approved as to form as of the dates written below. DATED: EMPLOYEE 01181.0001/896540.1 C-7 DATED: ATTEST: City Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP LI-A , City Attorney [EMPLOYEE'S ATTORNEY'S LAW FIRM] By: [Counsel Name] THE CITY Mayor 01181.0001/896540.1 C-8 RXNTRTT i) GOVERNMENT CODE SECTION 53243-53243.4 53243. On or after January 1, 2012, any contract executed or renewed between a local agency and an officer or employee of a local agency that provides paid leave salary offered by the local agency to the officer or employee pending an investigation shall require that any salary provided for that purpose be fully reimbursed if the officer or employee is convicted of a crime involving an abuse of his or her office or position. 53243.1. On or after January 1, 2012, any contract executed or renewed between a local agency and an officer or employee of a local agency that provides funds for the legal criminal defense of an officer or employee shall require that any funds provided for that purpose be fully reimbursed to the local agency if the officer or employee is convicted of a crime involving an abuse of his or her office or position. 53243.2. On or after January 1, 2012, any contract of employment between an employee and a local agency employer shall include a provision which provides that, regardless of the term of the contract, if the contract is terminated, any cash settlement related to the termination that an employee may receive from the local agency shall be fully reimbursed to the local agency if the employee is convicted of a crime involving an abuse of his or her office or position. 53243.3. On or after January 1, 2012, if a local agency provides, in the absence of a contractual obligation, for any of the payments described in this article, then the employee or officer receiving any payments provided for those purposes shall fully reimburse the local agency that provided those payments in the event that the employee or officer is convicted of a crime involving the abuse of his or her office or position. 53243.4. For purposes of this article, "abuse of office or position" means either of the following: (a) An abuse of public authority, including, but not limited to, waste, fraud, and violation of the law under color of authority. (b) A crime against public justice, including, but not limited to, a crime described in Title 5 (commencing with Section 67), Title 6 (commencing with Section 85), or Title 7 (commencing with Section 92) of Part 1 of the Penal Code. 01181.0001/896540.1 D-1 Agreement. FINAL Final Audit Report 2023-06-20 Created: 2023-06-15 By: Heather Goodwin (hgoodwin@morrobayca.gov) Status: Signed Transaction ID: CBJCHBCAABAAS5igAYPa709uGfFu64NWTrUdn5gjtXzt "Kimball, Yvonne _City Manager Employment Agreement FINAL " History Document created by Heather Goodwin (hgoodwin@morrobayca.gov) 2023-06-15 - 11:29:48 PM GMT E'41 Document emailed to yvonnekimball@gmail.com for signature 2023-06-15 - 11:31:58 PM GMT Email viewed by yvonnekimball@gmail.com 2023-06-16 - 5:30:45 AM GMT G�� Signer yvonnekimball@gmaii.com entered name at signing as Yvonne Kimball 2023-06-17 - 11:55:21 PM GMT Q Document e-signed by Yvonne Kimball (yvonnekimball@gmail.com) Signature Date: 2023-06-17 - 11:55:23 PM GMT - Time Source: server E_4' Document emailed to cneumeyer@awattorneys.com for signature 2023-06-17 - 11:55:25 PM GMT Email viewed by cneumeyer@awattorneys.com 2023-06-18 - 1:54:24 AM GMT 9 Signer cneumeyer@awattorneys.com entered name at signing as Chris F. Neumeyer 2023-06-19 - 5:56:22 PM GMT 4Document e-signed by Chris F. Neumeyer (cneumeyer@awattorneys.com) Signature Date: 2023-06-19 - 5:56:24 PM GMT - Time Source: server 04 Document emailed to cwixom@morrobayca.gov for signature 2023-06-19 - 5:56:26 PM GMT Adobe Acrobat Sign '65' Email viewed by cwixom@morrobayca.gov 2023-06-19 - 5:56:53 PM GMT 6%, Signer cwixom@morrobayca.gov entered name at signing as Carla Wixom 2023-06-19 - 5:57:31 PM GMT 9%, Document e-signed by Carla Wixom (cwixom@morrobayca.gov) Signature Date: 2023-06-19 - 5:57:33 PM GMT - Time Source: server 74 Document emailed to Dana Swanson (dswanson@morrobayca.gov) for signature 2023-06-19 - 5:57:34 PM GMT rO Heather Goodwin (hgoodwin@morrobayca.gov) added alternate signer heather.goodwin@me.com. The original signer Dana Swanson (dswanson@morrobayca.gov) can still sign. 2023-06-20 - 6:18:26 PM GMT C7+ Document emailed to heather.goodwin@me.com for signature 2023-06-20 - 6:18:26 PM GMT ' Email viewed by heather.goodwin@me.com 2023-06-20 - 6:19:57 PM GMT Signer heather.goodwin@me.com entered name at signing as Heather Goodwin, Deputy City Clerk for 2023-06-20 - 6:21:15 PM GMT 9%, Document e-signed by Heather Goodwin, Deputy City Clerk for (heather.goodwin@me.com) E-signature hosted by Heather Goodwin (hgoodwin@morrobayca.gov) Signature Date: 2023-06-20 - 6:21:18 PM GMT - Time Source: server 49 Agreement completed. 2023-06-20 - 6:21:18 PM GMT Adobe Acrobat Sign