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Current Council Agenda and Past Meeting Information

CITY COUNCIL AGENDA ITEM NO. 5

Meeting Date: November 18, 2008

Subject/Title: Authorize City Manager to execute an Employment Agreement with Mark Evenson, Chief of Police

Prepared by: Karen Chew, Assistant City Manager

Submitted by: Donna Landeros, City Manager

RECOMMENDATION
Adopt a resolution approving, and authorizing the City Manager to execute an Employment Agreement between the City and Mark Evenson, Chief of Police.

PREVIOUS ACTION
In June, 2006, staff hired CPS Executive Search to begin recruitment efforts for a new Chief of Police to replace Mike Davies, who was retiring in November.

In September, 2006, Mark Evenson accepted the City’s offer for employment and was hired as the City’s Chief of Police with a start date of October 30, 2006.

BACKGROUND
As all Department Directors are hired by the City Manager and serve the City in an “at will” capacity, individual employment contracts are not required. Historically, the Chief of Police is the only Department Director reporting to the City Manager that has had an employment agreement.

As the Chief of Police re-located to Brentwood from out of state during a time of dramatic fluctuations in the local housing market, this employment agreement provides additional security to the Chief of Police as he purchases a home in the community, which will be advantageous to both parties.

FISCAL IMPACT
The salary and benefits for the Chief of Police are included in the 2008/2009 Operating Budget. With current fluctuations in home prices, it is difficult to quantify the possible cost, if any, of the Housing Equity Reimbursement section of the Employment Agreement. A payout of this portion of the contract would only occur if all of the conditions in that section of the Agreement are met. Further, a reimbursement would only be made if the home is sold for less than the original purchase price or the appraised value; and the Chief is terminated for reasons other than cause.

At this time a budget adjustment is not required, if needed in the future, staff will bring a request to the City Council for consideration.

Attachments:
• Employment Agreement between the City of Brentwood and Mark Evenson, Chief of Police
• Resolution authorizing the City Manager to execute the Employment Agreement between the City of Brentwood and Mark Evenson, Chief of Police

EMPLOYMENT AGREEMENT BETWEEN THE CITY OF BRENTWOOD AND
MARK EVENSON, CHIEF OF POLICE


THIS EMPLOYMENT AGREEMENT (the “Agreement”) made and entered into on this 18th day of November, 2008 and effective November 1, 2008, by and between the City of Brentwood (“City”) and Mark Evenson, Chief of Police (“Evenson”), (each a “party” and collectively, the “parties”)
WITNESSETH:
WHEREAS, City desires to continue to employ and retain the services of Employee as Police Chief of Brentwood; and
WHEREAS, City wishes to establish and memorialize certain benefits, conditions of employment and working conditions for Evenson into a written contract; and
WHEREAS, Evenson desires to serve as Police Chief of City and represents that he has the requisite skill and experience to perform the job of Chief of Police for the City.
NOW, THEREFORE in consideration of these recitals and the mutual covenants contained herein, the parties agree as follows:
Section 1. DUTIES:
City hereby agrees to employ Evenson, as Police Chief of City and Evenson will perform those legally permissible and proper duties and functions as the City Manager, shall assign him from time to time. From an organizational standpoint, Evenson shall report to the City Manager with regard to day-to-day responsibilities. Evenson agrees to devote his full time to said duties as shall be reasonably necessary for their proper performance, regardless of the number of hours involved.
Section 2. TERM:
(A) The term of this Agreement shall be from November 1, 2008 until October 31, 2012, inclusive, unless terminated earlier by either party or unless terminated by the death or permanent disability of Evenson. Prior to the expiration date of October 31, 2012, both the City and Evenson may agree to extend the contract.
(B) Evenson shall devote his time and efforts exclusively to the position of Chief of Police for City. Evenson agrees not to undertake any other employment or consulting incompatible with his duties hereunder during the term of this Agreement without the City Manager’s written approval, unless otherwise required under State or Federal law, such as mandatory military service.
(C) Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Evenson to resign at any time from his position with City, subject to the provisions set forth in Section 3.
Section 3. TERMINATION AND SEVERANCE PAY:
This Agreement may be terminated at any time in any one of the following ways:
(A) By mutual agreement of the Parties, expressed in writing; or
(B) By Evenson, upon giving to City not less than four (4) weeks prior written notice of his election to terminate; or
(C) By City, for cause, arising from a willful breach of duty or habitual neglect of duty by Evenson, by Evenson’s conviction or plea of guilty or nolo contendere of a crime involving moral turpitude, or for any conduct by Evenson which makes it impossible or impractical for him to perform his duties including permanent disability, or that seriously and substantially impedes City’s operations; or
(D) By City, without cause, upon giving Evenson five (5) days’ written notice of termination. In the case of such at-will termination by City (but not in the event of termination for cause), City agrees to pay Evenson a lump sum cash payment equal to six (6) months’ salary. If Evenson resigns, retires, or is terminated for cause, this subsection shall not apply and Evenson will not be entitled to receive any severance pay.
Section 4. COMPENSATION AND BENEFITS:
(A) Compensation: City agrees to pay Evenson for his services rendered at Police Chief Step E in the adopted Classification/Compensation plan, and such compensation may be adjusted annually as part of the annual budget process and in accordance with Section 7, Performance Evaluation.
(B) Vacation Leave: Evenson shall accrue twenty-one (21) days (168 hours) of annual vacation leave each fiscal year. Evenson shall be entitled to any vacation buyback program and subject to accrual caps to the same extent as other exempt management employees at the Department Director level in accordance with Council/Administrative Policies 20-8, Vacation Policy, and 20-9, Vacation Buy-Back Policy.
(C) Holidays: Evenson shall be entitled to holidays to the same extent as other exempt management employees at the Department Director level.
(D) Sick Leave: Evenson shall be provided sick leave to the same extent as other exempt management employees at the Department Director level.
(E) Health / Dental / Life / Vision / LTD Insurance: Evenson shall be provided health / dental / life / vision / LTD insurance packages to the same extent as other exempt management employees at the Department Director level. Benefit levels and eligibility for benefits are defined in the contracts between the providers and the City.
(F) Retirement: Evenson shall be eligible to participate, in the Public Employees’ Retirement System (PERS) for the 3% at age 50 formula and the Third Level 1959 survivor benefit. City shall pay Evenson’s contribution in line with the City’s sworn member group. The terms of the contract between the City and PERS shall govern the eligibility for and level of benefits, if any, to which Evenson is entitled.
(G) Deferred Compensation: Evenson shall be allowed to participate in the City’s deferred compensation plan to the same extent as other exempt management employees.
(H) Automobile: City will provide Evenson a fully equipped take home vehicle for the term of this Agreement.
(I) Management-Incentive: Management incentive pay is in recognition of the fact that Department Directors have significant workloads given the unique residential/commercial growth experienced by the City of Brentwood while maintaining and improving the quality of life for the current City of Brentwood residents.

During the term of this Agreement, Management incentive pay in an amount equal to 11 hours per month shall be paid to Evenson, distributed evenly in his paycheck and shall be incorporated into the PERS compensation and contribution calculation as permitted in California Code Section 571 Definition of Special Compensation.
(J) Uniform Allowance and Education Supplement: Evenson shall receive a uniform allowance and education supplement to the same extent as other sworn officers employed by the City’s police department.
(K) Dues and Subscriptions: City shall budget and shall pay for the professional dues and subscriptions of Evenson necessary for his continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for his professional growth and advancement, and for the good of the City, including but not limited to the International Association of Chiefs of Police, the California Police Chiefs’ Association, the Contra Costa County Chiefs’ Association, and the FBI National Academy Associates, subject to approval by the City Manager.
(L) Professional Development: City shall budget and shall pay, as stated in the approved budget, for travel and subsistence expenses of Evenson for professional and official travel, meetings, and occasions. The amount shall be adequate to continue the professional development of Evenson and to adequately pursue necessary official and other functions for City, including but not limited to the Annual Conferences of the International Association of Chiefs’ of Police, the California Police Chiefs’ Association, the Contra Costa County Chiefs’ Association, law enforcement seminars and training, and such other national, regional, state and local governmental groups and committees for which Evenson serves as a member for the good of the City, subject to approval by the City Manager.
(M) Housing Equity Reimbursement: In recognition of the fact that Evenson relocated to City from out of State in difficult economic times, with unprecedented fluctuations in the housing market and the fact that the City desires Evenson to reside within the City limits, the City agrees to provide an incentive for Evenson to purchase a residence within the City limits (the “Residence”). City agrees that in the event that Evenson is terminated from employment for reasons other than for cause during the term of this Agreement, the City will reimburse Evenson for the loss of equity in the Residence upon the sale of the Residence. This provision will apply providing the Residence is put up for sale within ninety (90) days of termination and the Residence sells within nine (9) months of being put on the market. Within ninety (90) days of termination, an appraisal must be conducted by a qualified appraiser, holding an active residential license or greater, mutually agreed to by Evenson and the City Manager. Evenson and the City will share equally in the costs of the appraiser. The reimbursement amount is defined as the purchase price of the Residence paid by Evenson less the greater of the appraisal amount or the sale price of the Residence. In no instance shall Evenson be entitled to any reimbursement amount if either the appraised value or sales price equals or exceeds the original purchase price. This subsection applies only to the Residence purchased by Evenson immediately following the approval of this Agreement. This subsection shall expire October 31, 2012, unless the parties mutually agree to an earlier expiration date. Notwithstanding any other provision of this Agreement, this subsection shall not automatically renew at any time. This subsection of the Agreement will be considered void if Evenson voluntarily resigns from employment or is discharged for cause.
Section 5. OTHER TERMS AND CONDITIONS OF EMPLOYMENT:
City, in consultation and agreement with Evenson, shall fix any such other terms and conditions of employment, relating to the performance of Evenson provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the Brentwood Municipal Code or any other law.
Section 6. GENERAL PROVISIONS:
(A) This Agreement shall be binding and inure to the benefits of the heirs at law and executors of Evenson.
(B) If any provision, or any portion thereof, contained in this Agreement is held unconstitutional or unenforceable, the remainder of this Agreement or portion thereof, shall be deemed severable and shall not be affected and shall remain in full force in effect.
(C) All reports, notes, plans, documents, records, and data or certified copies of same prepared by Evenson in the course and scope of his duties under this Agreement shall be delivered to and become the property of the City. Evenson shall make such documents available for review and/or audit by City and City’s representatives at all reasonable times during the term of this Agreement and for at least four (4) years from the date of the completion and/or termination of this Agreement.
(D) This Agreement shall be interpreted as though prepared by both Parties and constitutes the entire, integrated understanding of the parties.
(E) Evenson serves at the pleasure of the City Manager and nothing herein shall be taken to prevent, limit or otherwise interfere with the right of the City Manager to terminate the services of Evenson with or without cause and with or without prior notice, except as provided for in Section 3. There is no express or implied promise made to Evenson for any form of continued employment. This Agreement is the sole and exclusive basis for an employment relationship between Evenson and City.
(F) Notwithstanding the above, the City shall not be obligated to pay any compensation, benefits or severance under the provisions of this Agreement if Evenson is terminated because of a conviction, plea bargain or adverse State Attorney General, Grand Jury or Fair Political Practices Commission determination involving any felony, intentional tort, crime of moral turpitude, or violation of statute or law constituting forfeiture of office, misconduct in office, misuse of public funds or conflict of interest. During the proceedings, the City may place Evenson on unpaid administrative leave. If such proceedings do not result in a conviction, plea bargain or adverse determination, City shall reimburse Evenson all unpaid administrative leave amounts within 30 days of concluding the proceedings.
(G) Nothing in this Agreement shall be construed to deny Evenson any and all rights accorded under the California Public Safety Officers Procedural Bill of Rights Act, Government Code § 3300 et seq.
Section 7. PERFORMANCE EVALUATION:
City Manager shall evaluate Evenson’s performance annually during the term of this Agreement and prior to any renewal or extension of this Agreement. During any performance evaluation, City Manager may adjust any part of the compensation and benefits, provided Evenson is notified of such adjustment and the adjustment is made in writing and attached to this Agreement and agreed to by Evenson. City Manager and Evenson may renew or extend the term of this Agreement provided such renewal or extension is reduced to writing, signed by both parties and adopted as an amendment to this Agreement.
Section 8. CONFLICT OF INTEREST PROHIBITION:
Evenson shall not engage in any activity which is or may become a conflict of interest, prohibited contract, or which may create an incompatibility of office as defined under California law. Evenson shall complete all annual disclosure forms required by law.
Section 9. INDEMNIFICATION:
City and Evenson agree that they will at all times assist each other in defending any litigation involving City and City agrees to indemnify and defend Evenson against any and all demands, claims, suits, actions and legal proceedings against him in his individual capacity or in his official capacity for damages or relief arising out of an act or omission occurring within the scope of his employment, except any punitive damages that may be imposed on Evenson. In any case in which Evenson is subject to punitive damages, the City will consider and evaluate the circumstances, and may, as provided for by law, pay those punitive damages on behalf of Evenson. City’s defense may be with a reservation of City’s rights. The parties shall each comply with the requirements of Government Code Section 825 et seq. (or their successor) in implementing this paragraph.
Section 10. NON-LIABILITY OF OFFICIALS AND EMPLOYEES:
No official or employee of City shall be personally liable for any default or liability under this Agreement.
Section 11. NOTICE:
Notices pursuant to this Agreement shall be given by deposit in the custody of the United States Postal Service, postage prepaid. Alternatively, notices required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial proceedings. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service to the addresses set out below or as subsequently communicated by one party to the other in writing.
Notice to EVENSON shall be sent to:
Mark D. Evenson (Home address as given to City by EVENSON)
Notice to EMPLOYER shall be sent to:
City of Brentwood City Manager 150 City Park Way Brentwood, CA 94513
Section 12. WAIVERS:
The waiver by either Party of any breach or violation of any term, covenant, or condition of this Agreement or any applicable law will not be deemed to be a waiver of such term, covenant, condition or law or of any subsequent breach or violation of same or of any other term, covenant, condition or law. The acceptance by either party of any fee or other payment which may become due under this Agreement will not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or any applicable law.
Section 13. ENTIRE AGREEMENT:
This Agreement, together with any other written document referred to or contemplated by it embody the entire Agreement and understanding between the parties relating to the subject matter of it. The City Manager is authorized, in consultation with the City Attorney, to agree to non-material amendments to this Agreement. Neither this Agreement not any of its provisions may be amended, modified, waived or discharged except in a writing signed by both Parties.
Section 14. REPRESENTATION BY COUNSEL:
Evenson and City acknowledge that they each did, or had the opportunity to, consult with legal counsel of their respective choices with respect to the matters that are the subject of this Agreement prior to executing it.
Section 15. SECTION HEADINGS:
The headings on each of the sections and subsections of this Agreement are for the convenience of the parties only and do not limit or expand the contents of any such section or subsection.
IN WITNESS WHEREOF, the City of Brentwood has caused this agreement to be signed and executed on its behalf by its City Manager, and duly attested by its City Clerk and Evenson has signed and executed this agreement.

CITY OF BRENTWOOD MARK D. EVENSON

__________________________ __________________________
Donna Landeros, City Manager Mark D. Evenson

_______________ _______________
Date Date


ATTEST:


__________________________ _______________
Margaret Wimberly, City Clerk Date

APPROVED TO FORM:

__________________________ ______________
Damien Brower, City Attorney Date



RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN EMPLOYMENT AGREEEMENT BETWEEN THE CITY OF BRENTWOOD AND MARK EVENSON, CHIEF OF POLICE


WHEREAS, on September 28, 2006, Mark Evenson accepted the City’s offer to serve as the Chief of Police for the City of Brentwood, and

WHEREAS, on October 30, 2006, Mark Evenson began serving in the capacity of Brentwood’s Chief of Police; and

WHEREAS, City desires to continue to employ and retain the services of Mark Evenson as Chief of Police for the City; and

WHEREAS, the City wishes to establish and memorialize certain benefits, conditions of employment and working conditions for Mark Evenson into a written contract.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood approves and authorizes the City Manager to execute an Employment Agreement between the City and Mark Evenson, Chief of Police, with an effective date of November 1, 2008.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on November 18, 2008, by the following vote:



 
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