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2019 McKinney, Bryan - Employment AgreementRevised October 2019 M E M O R A N D U M TO: Jon McMillen City Manager FROM: Monika Radeva, City Clerk DATE: October 2, 2019 RE: Bryan McKinney Employment Agreement – Public Works Director / Civil Engineer – Public Works Department reorganization approved by Council via Resolution No. 2019-043 adopted 10/01/2019 Requesting department shall check and attach the items below as appropriate: N/A Contract payments will be charged to account number: N/A X Amount of Agreement, Amendment, Change Order, etc.: $157,029.95 N/A A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with _____ no reportable interests in LQ or ____ reportable interests N/A A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant does not meet the definition in FPPC regulation 18701(2). Authority to execute this agreement is based upon: X Approved by the City Council – OCTOBER 1, 2019 – RESOLUTION NO. 2019-043 N/A City Manager’s signature authority provided under Resolution No. 2019-021 for budgeted expenditures of $50,000 or less. This expenditure is $157,029.95 and authorized by the above resolution under Department Head’s signing authority. X Initial to certify that 3 written informal bids or proposals were received and considered in selection The following required documents are attached to the agreement: N/A Insurance certificates as required by the agreement (approved by Risk Manager on _____________ date) N/A Performance bonds as required by the agreement (originals) N/A City of La Quinta Business License number N/A N/A A requisition for a Purchase Order has been prepared (amounts over $5,000) N/A A copy of this Cover Memo has been emailed to Finance Page 1 of 9 AT WILL EMPLOYMENT AGREEMENT This AT WILL EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into this ____ day of ________, 2019 (the “Effective Date”), by and between the City of La Quinta, a public body (the “City” or “Employer”), and Bryan W. McKinney, an individual (the “Employee”), both of whom understand as follows: WITNESSETH: WHEREAS, the City desires to employ the services of Employee as the Public Works Director/City Engineer as defined by the job description referenced herein; and WHEREAS, it is the desire of the City to establish certain conditions of employment and to set working conditions of Employee; and WHEREAS, Employee desires to accept employment as the Public Works Director/City Engineer of City. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: Section 1. Duties. Employer hereby agrees to employ said Employee as Public Works Director/City Engineer of said City to perform the functions and duties specified in the City of La Quinta CLASS SPECIFICATION – Director assigned to Public Works & Engineering and as provided by state or federal law, and to perform other legally permissible and proper duties and functions as the City Manager shall from time to time assign. Section 2. Term. A. Employee shall commence services as Public Works Director/City Engineer on October 12, 2019, which shall also be deemed the effective date of this Agreement. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City Manager acting for the City to terminate the services of Employee at any time, with or without cause subject only to the provisions set forth in Section 4, paragraphs A and B, of this Agreement. Employee is an “AT WILL” employee serving at the pleasure of the City Manager and subject to summary dismissal without any right of pre- or post- 12th October Page 2 of 9 termination hearing, or any other form of due process, including any Skelly hearing. C. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from his position with Employer, subject only to the provisions set forth in Section 4, paragraph E, of this Agreement. D. Employee, with prior written approval of the City Manager, may undertake outside professional activities for compensation, including consulting, teaching, speaking and writing provided they do not interfere with Employee’s normal duties and are done only during vacation or other unpaid time of Employee and are not done with any existing vendors or contractors of the City. Under no circumstances shall such outside activities create a conflict of interest with the duties of the Design & Development Director and the interests of the City. Section 3. Administrative Leave with Pay. Employer may place Employee on Administrative Leave with Pay at any time while employed under this Agreement. Employee shall be entitled to full pay and benefits during this time. However, if the purpose of placing Employee on Administrative Leave With Pay is to conduct an investigation into potential wrongdoing, and after that investigation, Employee is convicted of a crime involving abuse of his office or position, then pursuant to Government Code Section 53243, Employee shall be required to fully reimburse Employer for any salary or benefits received while on Administrative Leave With Pay. “Abuse of office or position” shall be as defined in Government Code Section 53243.4, as may be amended. Section 4. Discipline, Termination and Severance Pay. A. In the event Employee is terminated by the City Manager during such time that Employee is willing and able to perform his duties under this Agreement, Employee agrees that City Manager will furnish notice of termination at least thirty (30) days prior to the effective date of termination and Employer agrees to pay Employee a lump sum cash payment equal to six (6) month’s base salary. Pursuant to Government Code Section 53243.2, if Employee is later convicted of a crime involving abuse of office or position, then any severance paid under this Section 4.A shall be returned by Employee to Employer. B. Employee may be terminated at any time for willful misconduct or abuse of his office or position. The determination of what constitutes willful Page 3 of 9 misconduct shall be within the sole discretion of the City Manager; provided that it shall relate to the welfare of the City. Willful misconduct includes conduct directly related to conduct in office and the duties in office. It includes the refusal to follow the lawful directions of the City Manager. It also includes conduct not directly related to the performance of the official duties of the office when such conduct has a direct and harmful effect on the welfare or reputation of the City. Evidence of such direct and harmful effects includes, but is not limited to, conviction of a felony or a crime of moral turpitude. Abuse of office or position shall be as defined in Government Code Section 53243.4, as may be amended. In the event that Employee is terminated for willful misconduct or abuse of office or position, Employer shall have no obligation to pay, and shall be prohibited from paying, the severance sum designated in Section 4.A above, or any severance sum at all. C. Nothing in this Agreement shall prohibit Employer from imposing discipline less than termination upon Employee, including written reprimands, suspensions, or reductions in pay. Employee shall not be entitled to any due process as a result of the implementation of discipline less than termination and imposing lesser discipline does not in any way change Employee’s At-Will status. D. In the event: (1) Employer, at any time while Employee is employed under this Agreement, reduces the salary or other financial benefits of Employee (other than a suspension of five (5) working days or less or a temporary reduction in salary of thirty (30) days or less) in a greater percentage than an applicable across-the-board reduction of all employees of Employer; or (2) Employer refuses, following written notice, to comply with any other provision benefiting Employee herein; or (3) Employee resigns following a formal suggestion by the City Manager that he resign, then Employee may elect to be “terminated” as of that time, and shall be entitled to the severance provisions of Section 4.A above. E. If Employee voluntarily resigns his position while employed under this Agreement, then Employee shall give Employer at least thirty (30) day advance written notice, unless the parties agree otherwise, and Employee shall not be entitled to any severance pay. Section 5. Disability. If Employee is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity or health for a period of six successive weeks beyond any accrued sick leave or for the legal duration of the Family & Medical Leave Act (whichever is greatest), Employer shall have the option to terminate this Agreement. Termination Page 4 of 9 pursuant to this Section would not subject the City to payment of severance benefits as specified under Section 4 above. However, Employee shall be compensated for any accrued vacation, sick leave, holidays, administrative leave and other accrued benefits on the same basis as any other employee of the City pursuant to the Personnel Rules. Section 6. Salary. A. Employer agrees to pay Employee for his services rendered pursuant thereto at Step 6 of DBM Salary Rating E82 ($157,029.95 annually), as noted in the Fiscal Year 2019/20 salary schedule payable in equal installments at the same time as other employees of the Employer are paid. Salary may be adjusted in accordance with Section 6.B. hereinafter (if not at top step), or as adjustments are made to the Salary Schedule for all City employees. B. A probationary performance and salary evaluation shall be conducted six (6) months following the date of the initial hire based, in part, on Employee’s successful crafting and implementation the Performance-Based Metrics outlined on Exhibit A of this Agreement. An annual performance and salary evaluation shall be conducted during the annual evaluation period for all employees each year thereafter. All performance and salary evaluations shall be conducted in accordance with the City’s Personnel Rules. During the annual performance and salary evaluation, the City Manager and the Employee shall develop performance-based compensation metrics upon which the Employee’s performance and compensation adjustments shall be based. Section 7. Hours of Work. It is recognized that Employee must devote time outside the normal office hours to business of the Employer. Administrative leave shall be as provided in the City Personnel Rules and Section 8, below. Section 8. Vacation, Sick Leave and Administrative Leave. Employee shall accrue, and have credited to his personal account, vacation and sick leave as provided for the Public Works Director/City Engineer pursuant to the Personnel Rules. Employee shall receive eighty (80) hours of Administrative Leave per year in accordance with the Personnel Rules. Section 9. Other Benefits. Page 5 of 9 Employee shall be provided with the same health, dental, vision, life insurance and retirement benefits as other general employees of the City. Employee may also receive an annual physical examination at City expense. Section 10. Other Terms and Conditions of Employment. A. The City Manager, in consultation with Employee, shall fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the City’s Municipal Code or any applicable state or federal law. B. All regulations and rules of the Employer relating to vacation and sick leave, retirement and pension system contributions, holidays and other fringe benefits and working conditions as they now exist or hereafter may be amended, shall also apply to Employee as they would to other full-time employees of Employer, in addition to the benefits specifically set forth herein for the benefit of Employee. Section 11. Sole Rights. The severance rights provided in Section 4.A shall constitute the sole and only entitlement of Employee in the event of termination, other than for willful misconduct or abuse of power or office, and Employee expressly waives any and all other rights except as provided herein. Section 12. Notices. Notices pursuant to this Agreement shall be given by: (1) email with verification of delivery; (2) facsimile transmission with confirmation; (3) personal delivery: (4) overnight delivery service with conformation; or (5) deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows: EMPLOYER: CITY OF LA QUINTA 78-495 Calle Tampico La Quinta, CA 92253 EMPLOYEE: Bryan W. McKinney 47750 Adams Street #1114 La Quinta, CA 92253 Notice shall be deemed given as of the date of personal, overnight Page 6 of 9 delivery, email, or facsimile service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service. Section 13. General Provisions. A. This Agreement shall constitute the entire agreement between the parties. No prior oral or written communications are incorporated herein. B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of Employee. C. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected and shall remain in full force and effect. D. This Agreement may be signed in counterparts with signature pages transmitted by email, facsimile, personal delivery or overnight delivery, all of which will be treated as originals. Page 8 of 9 Exhibit “A” Performance-Based Metrics xEvaluate the Department processes and personnel. oWithin 90 days 1.Evaluate personnel and processes and provide the City Manager with your analysis and recommendations 2.On-board the Deputy Facilities Director and Parks/Landscape Analyst and launch the south La Quinta Median Landscape refresh program. 3.Review the administrative staffs’ roles, responsibilities and offer perspectives/recommendation, including how administrative support is provided to Design and Development during the transition. 4.Review and discuss the Division Manager’s 90-day plans. oWithin 180 days 1.Implement the recommendations generated from the personnel and process review. 2.Work with the Public Works Management Team to refine the Key Process Indicators (KPIs) and metrics of the entire CIP and maintenance processes. 3.Train Facilities staff in the request for proposal and contract agreement process. xReview and provide recommendations on the Capital Improvement Projects (CIP) development/design and implementation processes. oWithin 90 days 1.On-board the Assistant Construction Manager, and if necessary, recruit for Management Specialist position. 2.With input from the Construction Manager and management analyst, evaluate the CIP and engineering design and inspection in-house and consultant capabilities and provide the City Manager with recommendations. 3.Create a schedule prioritizing all design and construction projects for the fiscal year. Page 9 of 9 oWithin 180 days 1.Implement recommendations to the CIP and engineering inspection processes. xEngage in the Highway 111 Corridor, CV Link and SilverRock Development Processes. oWithin 90 days 1.Understand the scope, status and implementation activities. 2.Provide the City Manager with observations/recommendations. 3.Identify your role/responsibilities in each of these activities and embed. xRefine your leadership style and skills. oWithin 90 days - Work with consultant to define your Leadership Development Plan oWithin 120 days - Show progress on your Leadership Development Plan. At 120 days define and present to the City Manager a new performance and development plan for the next 120 days.