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11. Approve employment agreement between the Town of Los Gatos and Town Manager Greg Larson0_3 DATE: TO: FROM: SUBJECT: MEETING DATE: 03/03/15 ITEM NO: I I COUNCIL AGENDA REPORT FEBRUARY 25, 2015 MAYOR AND TOWN COUNCIL RUMI PORTILLO, HUMAN RESOURCES ROBERT SCHULTZ, TOWN ATTORNEY APPROVE AN EMPLOYMENT AGREEMENT BETWEEN THE-TOWN OF LOS GATOS AND TOWN MANAGER GREG LARSON RECOMMENDATION: Approve an Employment Agreement between the Town of Los Gatos and Town Manager Greg Larson. BACKGROUND: As an appointee of the Town Council, the Town Manager is employed under an Employment Agreement specifying the terms and conditions of employment. The terms and conditions of employment include items such as base pay, basic and optional benefits, covered expenses, parameters for an annual performance review, and conditions for termination/severability. DISCUSSION: In early February 2015, Town Manager Greg Larson notified the Town Council of his intent to retire in late 2015. Subsequent to that notice, a new Employment Agreement has been written to accept the Town Manager's resignation, establish the intent of the Town to engage an Interim Town Manager and redefine Larson's role as a senior management advisor pending Larson's departure from the Town. The Employment Agreement also establishes Larson's final date of employment as October 13, 2015. Larson's resignation may be adjusted to a sooner date, should he obtain other full -time employment. CONCLUSION: The objective of the Employment Agreement is to assist in a smooth, efficient and effective transition to a new Town Manager. Prepared bv: RUMI PORTILLO ROBERT SCHULTZ Human Resources Director Town Attorney Reviewed by: lbwn Manager N: MMAdminWorkFiles\2015 Comcil Reports\Mu.3 \Counci1 Memo TM Agreement Mmh 3 2015.doc PAGE MAYOR AND TOWN COUNCIL SUBJECT: APPROVE AN EMPLOYMENT AGREEMENT BETWEEN THE TOWN OF LOS GATOS AND TOWN MANAGER GREG LARSON FEBRUARY 25, 2015 ENVIRONMENTAL ASSESSMENT: This is not a project defined under CEQA, and no further action is required. FISCAL IMPACT: Funding to support the Town Manager's position is authorized in the annual budget each fiscal year, along with all other Town employee compensation and benefits. This agreement maintains Larson's current wages, salary, vacation, sick and other benefits as authorized and funded; thus no additional funding is required to support this agreement. Attachments: 1. Agreement for Employment — Greg Larson AGREEMENT FOR EMPLOYMENT This Agreement for Employment and Mutual Release and Waiver ( "Agreement ") is hereby entered into by and between Greg Larson ( "Larson ") and the Town of Los Gatos ( "Town "). It is the intent of all parties to this Agreement to clearly define and resolve Larson's employment with the Town of Los Gatos through October 13, 2015. RECITALS WHEREAS, Town and Larson executed an agreement effective January 7, 2008 for Larson to provide Town Manager services to the Town; and WHEREAS, in November 2012 and again in August 2014, the agreement was amended to incorporate changes in state law and provide for an increase in compensation and benefits; and WHEREAS, Larson is an "at -will" employee and has announced his retirement effective December 2015; and WHEREAS, Larson desires to resign from his employment effective October 13, 2015 with the Town on the terms and conditions herein set forth; and WHEREAS, the Town desires to accept Larson's resignation from employment with the Town effective October 13, 2015 on the terms and conditions herein set forth; and WHEREAS, the Town desires to define Larson's employment and resignation date with the Town in order to efficiently and effectively transition to a new Town Manager; and WHEREAS, the Town desires to engage an Interim Town Manager for the transition to a new Town Manager; and WHEREAS, both the Town and Larson have made a thorough investigation of the facts, believe that the proposed Agreement is fair, reasonable and adequate, and in the best interests of each of the Parties; and WHEREAS, both the Town and Larson recognize that the Agreement herein is an individually negotiated agreement, and is not intended to reflect or establish any new or existing policy of the Town; and WHEREAS, this Agreement shall supersede all prior oral and written agreements, arrangements, and understandings relating to the terms and conditions of Larson's employment with the Town. NOW THEREFORE, in consideration of the terms, conditions, and covenants contained herein, it is hereby agreed as follows: ATTACHMENT 1 Agreement — Larson Page] of 5 AGREEMENT 1. Incorporation of Recitals. The foregoing recitals are incorporated herein and made part of this Agreement. 2. Resignation. Town and Larson agree that the last day of Larson's employment with the Town shall be October 13, 2015 ( "Resignation Date "). As of the Resignation Date, Larson will no longer be eligible to receive further payments for wages, salary, vacation, severance and /or benefits from the Town, except as normally provided by Town Policy and Practice (final paycheck, accrued vacation cash out, retiree health care etc.). Upon the Resignation Date, Larson will be eligible for continuation of health insurance benefits at Larson's own expense, pursuant to the provisions of COBRA. 3. Interim Period. Town and Larson agree that in the time period from March 13, 2015 to October 13, 2015 ( "the Interim Period "), Larson shall continue to receive his current payments for wages, salary, vacation, sick and other benefits. During the Interim Period from March 13, 2015 to October 13, 2015, Larson will be granted paid Management Administrative Leave as provided by the Town of Los Gatos and irrevocably relinquish his duties and responsibilities as Town Manager. During the Interim Period, Larson shall function as a senior management advisor to the Interim Town Manager, for the purposes of historical continuity, transition support and answering any and all work - related questions during regular business hours as requested by the Interim Town Manager. Larson agrees during the Interim period to comply with all Federal and California law, Town Ordinances, Town Policies and Procedures, and shall employ his best efforts in transitioning all Town assignments, information, and workload to the Interim Town Manager. Larson agrees that if during the Interim Period he is employed in any position or job on a permanent basis for more than 24 hours per week, he will immediately resign his position with the Town and all wages, salary, vacation and benefits shall cease immediately from the Town and this agreement and any other agreements with Larson shall be deemed terminated. 4. Waiver of Actions Aeainst the Town. In consideration of the promises contained in this Agreement, Larson, on behalf of himself, his heirs, executors, administrators, assignees and successors, fully and forever releases, discharges and covenants not to sue or otherwise institute or in any way actively participate in, or voluntarily assist in, the prosecution of any legal or administrative proceedings or inquiries against the Town, including without limitation, Town departments, commissions, agencies, boards, subsidiaries, related entities, and current or former officers, directors, elected and appointed officials, agents, employees, or assignees, with respect to any matter arising out of, connected with, or related in any way to Larson's employment with the Town. 5. Waiver of Actions Against Larson. In consideration of the promises contained in this Agreement, the Town, on behalf of the organization and its Council and officers, fully and forever releases, discharges and covenants not to sue or otherwise institute or in any way actively participate in, or voluntarily assist in, the prosecution of any legal or administrative proceedings or inquiries against Larson with respect to any matter arising out of, connected with, or related in any way to Larson's employment with the Town. Agreement — Larson Page 2 of 5 6. Complete Release. This is a complete general release that will forever bar Larson from pursuing any claims against the Town relating to his employment. Larson understands and agrees that he is waiving any rights he may have had, now has, or in the future may have, to pursue any and all remedies available to him under any cause of action arising directly or indirectly from his employment with the Town; including without limitation, claims of wrongful discharge; constructive termination; emotional distress; defamation; retaliation; breach of contract; breach of covenant of good faith and fair dealing; violation of the provisions of the California Labor Code; claims to unemployment benefits and compensation; claims to workers' compensation; violation of the Town's ordinances, regulations, resolutions, personnel rules and other Town enactments; the Meyers - Milias Brown Act; violations of any memoranda of understanding covering Larson; and claims under Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1991, the California Fair Employment and Housing Act, the Americans With Disabilities Act and comparable state statutes and regulations; the Family Medical Leave Act and comparable state statutes and regulations; any and all state and federal whistle - blower statutes and /or freedom of speech causes of action; the California and United States Constitution; the Equal Pay Act of 1963; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Civil Rights Act of 1866; and any other laws and regulations relating to employment and/or discrimination. Larson understands and expressly agrees that this release extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributed to, Larson's employment with the Town, and that any and all rights under Section 1542 of the California Civil Code or any analogous state law or federal law or regulation are hereby expressly waived. Section 1542 of the Civil Code of the State of California reads as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his Separation with the debtor. 7. Voluntary and Knowing Action. Larson acknowledges that he has read and understands the terms, conditions, releases, and waivers contained in this Agreement, and that he has executed this Agreement voluntarily and without coercion. Larson acknowledges that the waivers and releases he has made by executing this Agreement are knowing, conscious and with full appreciation that he is forever foreclosed from pursing any of the rights so waived. Larson acknowledges that pursuant to the Older Worker Benefit Protection Act, Larson has 21 days from the date this agreement was presented to him, in which to consider this Agreement and whether he will enter into it, although he may, in the exercise of Larson's own discretion, sign or reject it at any time before the 21 day period expires. Larson also acknowledges that for a period of 7 days following the signing of this Agreement he may revoke this Agreement. 8. Mutual Representations. Covenants and Warranties Each of the Parties to this Agreement represents, covenants, warrants, and agrees as follows: a. Each of the Parties hereto represents and warrants that it (a) has been or has had the opportunity to be represented by legal counsel of its choosing with respect to the negotiation of this Agreement, the advisability of making the Agreement provided for herein, and the advisability of executing this Agreement; and (b) has been or has had the opportunity to be advised by legal counsel of its choosing as to its respective Agreement — Larson Page 3 of 5 rights and obligations with respect to this Agreement; (c) has had the opportunity to participate in the review and drafting of this Agreement; and (d) to the extent any language barriers exist, has been or has had the opportunity to be assisted by a professional language interpreter of its choosing with respect to this Agreement; b. Each of the Parties hereto acknowledges that it has read and understood the contents of this Agreement, each having been advised by its attorney in connection with the terms of this Agreement; c. Each of the Parties hereto has made such investigation of the facts pertaining to this Agreement, and of all the matters pertaining thereto as it deems necessary, including, but without limitation of, the tax consequences of this transaction; d. Each of the Parties hereto executing this Agreement and any document executed in connection with this Agreement, whether signed individually or on behalf of any person, corporation, organization or other entity, represents and warrants that it (a) has full power and authority to enter into and execute this Agreement and (b) has the full power and authority to bind the person, corporation, organization or other entity for whom it is signing; e. Each of the Parties hereto agrees to execute all such documents as shall be necessary or helpful to carry out the provisions of this Agreement, and each Party irrevocably authorizes its attorney to execute all such documents; f. Each of the Parties hereto represents and warrants that it is the holder of all claims released in this Agreement, and that they have not sold, assigned, transferred, conveyed or otherwise disposed, or purported to have assigned, transferred, conveyed or otherwise disposed to any person or entity any claim, demand, debt, liability, account, obligation or cause of action herein released. 9. Recruitment of Town Employees Larson agrees that upon execution of this agreement, he will not hire, recruit, promise to hire, or encourage any current Los Gatos employee to quit their employment with Los Gatos for a period of one year from the date of this Agreement. 10. Communications. The Town, Larson, and elected officials of the Town agree that the extent of any public comments, either orally or in writing, regarding Larson's employment with the Town, shall consist entirely of this Agreement and the following Press Release, which has been reviewed and agreed to by all parties to this agreement: Los Gatos - On Tuesday, March 3, the Los Gatos Town Council will be considering the appointment of Les White as Interim Town Manager. White has previously served Los Gatos as Interim Town Manager and Acting Parks and Public Works Director. He also worked for the Town during the prior Town Manager transition and on other special projects. Agreement — Larson Page 4 of 5 Current Town Manager Greg Larson recently announced his plans to retire and Town Council will also be considering approval of an agreement with Mr. Larson to allow for a smooth transition to a new Town Manager. Les White said, "I look forward to again serving Los Gatos and working closely with the Town Council and the excellent Town Staff." White is well known for his extensive career as City Manager in San Jose, Fullerton and high level positions in Fresno and Anaheim. In addition, White has served in other executive positions for public, nonprofits and educational institutions including United Way Silicon Valley, Fort Ord Reuse Authority, Association of Monterey Bay Area Governments, West Valley/Mission Community College District, and the cities of Palo Alto, Seaside, and Pittsburg CA. 11. References. Town and Larson agree that all third party inquiries regarding Larson's employment with the Town shall be directed as required by the law to the Town's Human Resources Director. Town and Larson agree to release only Larson's dates of employment, Town Manager employment agreements and amendments, position held, and final salary and this Agreement. 12. Entire Agreement. The Town and Larson agree and acknowledge that this Agreement constitutes the entire understanding and agreement of the parties, and supersedes the terms of Larson's employment agreement and is the sole and entire agreement in this matter. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and no promises, inducements or agreements, other than -those expressed herein, have been made in connection with this Agreement. The Town and Larson further agree and acknowledge that this Agreement may not be modified except through a writing executed by the parties. 13. Fees and Costs. Town and Larson agree that in the event of litigation relating to this Agreement, the prevailing party shall be entitled to reasonable attorney' fees and costs. 14. Severable. If any word, phrase, sentence or provision of this Agreement is found to be unenforceable, then the remaining words, phrases, sentences and provisions shall remain valid and enforceable. 15. Construction. Each party to this Agreement has had an opportunity to review, revise, and contribute to this Agreement. Hence, it will not, in the event of a dispute, be construed in favor of, or against, any particular party. The parties agree to mediate any dispute arising out of, or related to, the subject matter of this release prior to pursuing any judicial or administrative remedy or filing, or asserting any claim for judicial or administrative relief. Dated: Z 'z 57— 1 5� z �- Greg Larson Dated: Town of Los Gatos Approved as to Form Agreement — Larson Page 5 of 5 THIS PAGE INTENTIONALLY LEFT BLANK