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HomeMy WebLinkAboutReso - CC - 023-2021DocuSign Envelope ID: 75D30518-A4D7-4F26-BOB1-8C85CD5ACE56 RESOLUTION NO. 23-2021 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPOINTING MICHAEL GUINA AS CITY ATTORNEY AND APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH MICHAEL GUINA TO SERVE AS BURLINGAME CITY ATTORNEY EFFECTIVE MAY 17, 2021 WHEREAS, the City Council has completed its recruitment and interviews to replace prior City Attorney Kathleen Kane; and WHEREAS, Michael Guina is currently the City Attorney for the City of Emeryville, and has over fifteen years of municipal law experience; and WHEREAS, Mr. Guina has excellent legal credentials, background, and training and is well respected through the Bay Area municipal law community; and WHEREAS, Mr. Guina received his Bachelor of Arts from UC Berkeley, his Juris Doctorate from the University of San Francisco, and is an attorney in good standing admitted to the state bar of the state of California; and WHEREAS, the City of Burlingame wishes to appoint Mr. Guina to be the next City Attorney of the City of Burlingame, effective May 17, 2021, and Mr. Guina wishes to accept the appointment. NOW, THEREFORE, IT IS RESOLVED, DETERMINED AND ORDERED that: 1. The City Council hereby appoints Michael Guina as the City Attorney for the City of Burlingame with the authority provided by law and by Chapter 3.05 of the Burlingame Municipal Code, effective May 17, 2021. 2. The attached employment agreement between the City of Burlingame and Mr. Guina is approved and the City Council authorizes the Mayor to execute it. Ann O'Brien Keighran, Ma, or DocuSign Envelope ID: 75D30518-A4D7-4F26-BOB1-8C85CD5ACE56 I, Meaghan Hassel -Shearer, City Clerk of the City of Burlingame, certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 1 st day of March, 2021, and was adopted thereafter by the following vote: AYES: Councilmembers: BEACH, BROWNRIGG, COLSON, O'BRIEN KEIGHRAN, ORTIZ NOES: Councilmembers: NONE ABSENT: Councilmembers: NONE DocuSigned by: osnEaaass _ Meaghan Hassel -Shearer, City Clerk AGREEMENT BETWEEN THE CITY OF BURLINGAME AND MICHAEL GUINA FOR EMPLOYMENT AS CITY ATTORNEY OF THE CITY OF BURLINGAME THIS AGREEMENT is entered into this day of March, 2021, by and between the City of Burlingame ("City"), a Municipal Corporation existing under the laws of the State of California, and Michael Guina ("Employee"). RECITALS A. The City is seeking a new City Attorney and desires to employ Mr. Guina in that position pursuant to the terms and conditions of this Agreement and consistent with Chapter 3.05 of the Burlingame Municipal Code. B. Mr. Guina has the education and experience for the position of City Attorney and is willing and able to assume the duties and responsibilities of that position pursuant to the terms and conditions of this Agreement. AGREEMENT NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: Employment and Duties. Employee shall serve as City Attorney of the City and as an employee of the City for all purposes as provided in Burlingame Municipal Code, Chapter 3.05, the California Government Code, and other applicable ordinances, resolutions, and laws. Employee shall also serve as Agency Attorney of the Burlingame Financing Authority. Employee shall perform such further duties as the City may direct. 2. Time of Performance. Employee shall begin employment with the City on May 17, 2021. Devotion to Duties. During such time as Employee is employed pursuant to this Agreement, and in accordance with Section 3.05.020 of the Burlingame Municipal Code, Employee shall not accept or undertake any employment that would interfere with, conflict with, or be inconsistent with his duties and obligations under this Agreement, or that would interfere with, conflict with or be inconsistent with his duties under any local, State, or Federal laws or regulations. 4. Nonassi ng ability. The services to be performed under this Agreement are unique and personal to Employee, and he is being employed solely because of his personal qualifications, qualities, and character. No portion of these services shall be assigned or subcontracted in any way except as permitted by Chapter 3.05 of the Burlingame Municipal Code. 5. Monthly CoMpensation. Upon beginning employment with the City, City shall pay Employee a salary of $19,333.33 per month. This compensation shall be paid on the same payment schedule as City Department Heads, which is currently biweekly. Employee shall receive the same cost of living adjustments as provided in the Compensation and Benefit Plan for Department Heads, attached hereto as Exhibit "A". Hereafter, the City Council may adjust the City Attorney's salary by resolution. 6. Deferred Compensation Contribution. City shall contribute 2% of base salary per month into a City sponsored deferred compensation program, effective with the first pay period beginning after May 17, 2021. 7. Employment Benefits. Except as expressly amended by this Agreement, City shall provide Employee with the same benefits, including retirement, holidays, medical, dental, long-term disability, vision, life insurance, professional development, unreimbursed health, Health Reimbursement Arrangement, and administrative leave benefits, as provided in the Compensation and Benefit Plan for Department Heads, which may be amended from time to time. In the event that a subsequently negotiated Department Head Compensation and Benefit Plan provides greater benefits than those in the attached Exhibit A, Employee shall be extended those benefits as well. 8. Vacation Accrual. Upon commencement of his employment pursuant to this Agreement, Employee will accrue vacation at the rate of one -hundred and sixty (160) vacation hours per year. Additionally, upon commencement of his employment, forty (40) hours of vacation shall be credited to Employee's vacation leave balance. Except as provided in this paragraph, Employee's vacation leave shall be subject to the same rules as for City Department Heads. 9. Sick Leave Accrual. Employee shall accrue sick leave at a rate of one -hundred and twenty (120) hours per year. 10. Professional Memberships and Training. In addition to the benefits provided by the Professional Development/Unreimbursed Health Account benefit, City shall pay for Employee's membership in the California State Bar Association and in the San Mateo County Bar Association. It is the intention of the parties that the City Attorney department budget shall include Employee's attendance at professional training, and that Employee's expenses in connection with those training sessions shall be paid for or reimbursed pursuant to that budget and City policies governing travel and reimbursement. 11. Performance Review. At least once per year, the City Council shall meet with Employee and review his performance. During this performance review, the City Council and Employee may agree on performance objectives and priorities for the coming year for Employee. During or subsequent to the performance review, the Council may also consider performance or market - based compensation adjustments. 12. Termination of Agreement by Employee. Employee may terminate this Agreement at any time upon giving at least sixty (60) days written notice to the City. 13. Termination of Agreement by City. Subject to Section 3.05.020 of the Burlingame Municipal Code, Employee serves at the pleasure of the City Council. Therefore, the City may terminate this Agreement at any time, with or without cause, pursuant to the provisions of the Burlingame Municipal Code. However, the City may not terminate this Agreement within ninety (90) days of the certification of results of an election at which one or more new members are elected to the Page 2 of 4 023-2021 - l.docx City Council, except for cause as defined in subparagraph (a), provisions (i) through (iii), below. If the City terminates this Agreement for any of the reasons outlined in provisions (ii) and (iii) of this subparagraph, the City shall provide written notice of such termination, which shall contain the factual basis upon which the City has made its determination. Employee is entitled to, and may elect to request, a public hearing before the Council on the City's determination as described in its termination notice. a. Except as required by State or Federal law, no further payment to Employee shall be required pursuant to this Agreement if the City terminates this Agreement for the following reasons: i. If Employee dies. ii. If Employee commits a crime of moral turpitude or a violation of statute or law constituting misconduct in office or abuse of office or position. For purposes of this Agreement, "abuse of office or position" is defined as in California Government Code 53243.4. iii. If the City Council determines that Employee has violated City policy regarding sexual harassment or drug or alcohol use, or has violated State or Federal law with regard to civil rights, and the City Council determines that termination from City employment is the appropriate sanction. b. In the event that the City terminates this Agreement for a reason not stated in subparagraph (a) above and Employee is still willing and able to perform his duties under this Agreement, City shall pay to Employee upon termination of the Agreement an amount equal to six (6) months of then -current monthly compensation, in addition to the payment of the accrued benefits as provided to the City Department Heads upon resignation or termination. Contemporaneously with this payment, Employee agrees to execute and deliver to City a release agreement approved by the City, waiving and releasing City and its officials and employees from any and all claims that Employee may have against City and its officials and employees and acknowledging that any such payments under this provision release City from any further obligations under this Agreement. c. Notwithstanding any other provision in this Agreement, and in accordance with California Government Code Sections 3511.1, 3511.2, 53243.1 and 53243.2, the following limitations apply to City's obligations to Employee: i. In the event Employee is placed on paid leave pending an investigation, Employee shall reimburse such pay to City if he is subsequently convicted of a crime that constitutes "abuse of office or position." ii. In the event City pays for Employee's legal criminal defense, he shall fully reimburse such funds to the City if he is subsequently convicted of a crime that constitutes "abuse of office or position." iii. If this contract is terminated, any cash settlement related to the termination that Employee may receive from City must be fully reimbursed to City if he is subsequently convicted of a crime that constitutes "abuse of position or power." 14. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To City: City Clerk City of Burlingame 501 Primrose Road Burlingame, CA 94010 To Mr. Guina: Mr. Michael Guina [City will use last address in Mr. Guina's personnel file] 15. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 16. BindingE. This Agreement was negotiated and drafted by both parties. This Agreement is binding on the heirs and executors, administrators, and conservators of Employee. 17. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed according to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior or Municipal Court of the County of San Mateo. 18. Non -Liability of Officials and Employ. No official or employee of the City shall be personally liable for any default or liability under this Agreement except Employee. 19. No Rights in Third Parties. Nothing contained in this Agreement is intended to nor shall it be construed to create any right of action of any kind in any third party. 20. Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by both the City and Employee. 21. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the Agreement between the City and Employee, and supersedes all prior written or oral understandings. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. 22. Severability. In the event that any provision of this Agreement is found to be illegal or void by a court having jurisdiction over the parties, the remainder of the Agreement shall remain in full force and effect. Page 4 of 4 023-2021 - Ldocx IN WITNESS WHEREOF, the City and Employee have executed this Agreement as of the date indicated on page one (1). CITY OF BURLINGAME MICHAEL GUINA Ann O'Brien Keighran, Mayor City Attorney (designate) ATTEST: Meaghan Hassel -Shearer, City Clerk Approved as to Form: Scott Spansail, Interim City Attorney