HomeMy WebLinkAboutItem 32 Exhibit 1 Revised 08.19.202455394.00000\42495009.1
EMPLOYMENT AGREEMENT
BETWEEN
THE CITY OF SANTA ANA AND ALVARO NUÑEZ
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into
effective as of the 6th day of August 2024, by and between the CITY OF SANTA ANA, a
general law city and municipal corporation (“City”), and ALVARO NUÑEZ, an individual
(“Nuñez”) and collectively with the City, the “Parties”), both of whom understand as
follows:
RECITALS
A. City desires to engage the services of Nuñez, and Nuñez desires to accept
employment, as City Manager of the City of Santa Ana, as provided by the provisions of
Section 500 of the City Charter of the City of Santa Ana;
B. It is the desire of the City Council to (1) secure and retain the services of
Nuñez and to provide inducement for him to remain in such employment, (2) to make
possible full work productivity by assuring Nuñez’s morale and peace of mind with respect
to future security, and (3) to provide a me ans of terminating Nuñez’s services if City so
desires to terminate his employment;
C. Nuñez desires to accept employment, on an at-will basis, as the City
Manager of the City; and
D. The Parties further desire to establish certain benefits and certain conditions
of Nuñez’s employment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Parties agree as follows:
1. Employment.
a. Duties. The City hereby agrees to employ Nuñez as City
Manager of the City to perform the functions and duties specified in City's Charter and
Municipal Code, and Nuñez agrees to accept such employment. Nuñez shall perform all
duties and responsibilities imposed by law and industry standards, and such legally
permissible further and proper duties and functions as the City Council may from time to
time assign. Nuñez shall hold office at the pleasure of the City Council and shall be the
chief administrative officer and head of the administrative branch of the government of
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the City under the direction and control of the City Council except as otherwise provided
in the Municipal Code.
b. Work Efforts and Schedule. Nuñez shall devote such time,
interest, and effort to the performance of his duties as may be reasonably necessary to
fulfill the requirements set forth in Section 1.a. Nuñez agrees to perform such services to
the best of his ability, in an efficient and competent manner consistent with the standards
of the profession. Due to the nature of the City Manager position, it is understood that
flexibility is required for Nuñez’s work schedule, including without limitation the need for
remote work and to modify his schedule within reason to adjust for attendance at meetings
at night and during other times outside of ordinary business hours, at Nuñez’s reasonable
discretion. Without limiting the generality of the foregoing, Nuñez understands and agrees
that the position is an exempt, salaried, full-time position that may involve expenditures
of time in excess of forty (40) hours per week, and will also include time outside normal
office hours, such as attendance at City Council and other community and public agency
meetings. Nuñez shall be exempt from paid overtime compensation and from Fair Labor
Standard Act work hours restrictions. For purposes of this Section, “normal office hours”
shall refer to work at City Hall when it is open for business, as determined by the City
Council.
c. Outside Professional Activities. Due to the nature of the City
Manager position, it is understood Nuñez shall not consult or engage in other non-City
connected business or employment (aside from community volunteer activities) without
the prior knowledge and express approval of the City Council. Nuñez may, however,
undertake limited outside activities, including (a) volunteer professional development
activities, including activities on behalf of organizations like the League of California Cities
and City Manager associations; (b) volunteer activities; (c) teaching, subject to City
Council approval; and/or (d) other related activities, provided that such activities do not in
any way interfere, conflict with, or adversely affect his employment as City Manage r or
the performance of his duties as provided herein.
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2. Term.
a. Commencement and Term. This Agreement shall be effective
as of August 6, 2024, which is the commencement date of Nuñez’s service as City
Manager (August 6 shall hereinafter be referred to as the “Anniversary Date”) and
continued without interruption through August 5, 2027 (“Term”), unless terminated as
provided in Section 3 herein.
b. Renewal. On each of the Anniversary Dates in 2026, 2027
and 2028, respectively, this Agreement shall automatically renew for one (1) additional
year (each automatic one (1)-year renewal shall be considered an extension of the Term),
unless prior thereto, either (i) the Parties agree to enter into a formal, written amendment
to mutually extend the Term of this Agreement for greater than a one (1)-year period, or
(ii) the City Council notifies Nuñez of its intent not to extend the Agreement for one
additional year; provided, however, that in the event the Cit y Council desires not to allow
the automatic renewal of the Term of the Agreement, the City shall inform Nuñez, in
writing, no less than six (6) months prior to the end of the Term, as may have been from
time to time extended in accordance with this Section. For the avoidance of doubt, this
Section 3.b allows for two separate one-year renewals.
3. Termination, Resignation, and Severance Pay.
a. At-Will. Nuñez’s employment with the City is on an at-will
basis. Nothing in this Agreement shall prevent, limit or othe rwise interfere with the right
of the City Council to terminate, by at least two-thirds (⅔) membership vote of the City
Council, the services of Nuñez without cause, at any time and without notice other than
a duly-noticed City Council meeting agenda, and complying with Section 3.d of this
Agreement and the Santa Ana City Charter Section 500, as may from time to time be
amended, unless waived in writing by Nuñez. Notwithstanding the foregoing, Nuñez may
not be terminated under this provision for at-will termination by the City before or within a
period of six (6) months following a municipal election (general, special, recall) or
appointment at which one or more Council seats are contested on the ballot of such
election (the "Election Cool-off Period"). For the avoidance of doubt, the City Council’s
decision during the Election Cool-off Period or otherwise to either (i) not renew, or provide
notice of non-renewal of, the Agreement, as set forth in Section 2.b, above, or (ii)
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terminate “for cause,” as set forth in Section 3.c, below, does not constitute a termination
for purposes of this Section 3.a.
b. Resignation. Nothing in this Agreement shall prevent, limit, or
otherwise interfere with the right of Nuñez to resign from his position, subject only to
Nuñez providing sixty (60) days’ prior written notice to the City. Nuñez’s resignation shall
be deemed accepted upon delivery of a written resignation to the City Council.
Notwithstanding the foregoing, Nuñez hereby expresses his intent to remain as City
Manager for a period of not less than three (3) years from the date of execution of this
Agreement.
c. For Cause Termination. Notwithstanding the provisions of
Section 3.a, City may terminate this Agreement "for cause" as defined below. In the event
Nuñez is terminated by the City for “cause” (i.e., a “For Cause Termination”) then City
may terminate this Agreement immediately and Nuñez shall not be entitled to severance
and will only be entitled to the compe nsation accrued up to the date of such For Cause
Termination. For Cause Termination shall be defined for purposes of this Agreement to
only mean any of the following: (1) conviction of any felony; (2) conviction of a
misdemeanor arising directly out of the City Manager's duties pursuant to this Agreement
involving a willful and intentional violation of law; (3) conviction of a crime of moral
turpitude; (4) removal from office by the Grand Jury; (5) willful abandonment of duties; (6)
malfeasance; (7) gross negligence; (8) fraud; or (9) serious misconduct, substantiated
through an independent investigation (e.g., sexual harassment, discrimination), which
would constitute a violation of City policy, or state or federal law. (Conviction for purposes
of this Agreement includes a judgment entered after a trial, plea of guilty, or plea of nolo
contendere.)
d. Severance. In the event Nuñez is terminated by the City
Council at any time that Nuñez is still willing and able to perform the duties of City
Manager, and the termination is not a For Cause Termination (i.e., it is instead an “At Will
Termination”), as defined in Section 3.a, above, then, subject to the limitations set forth
in Government Code Section 53260, the City shall pay Nuñez a lump sum cash payment
settlement equal to twelve (12) months’ base pay (as defined in Section 5, below)
(“Severance”), exclusive of incentive or bonus pay, benefits and other non -cash
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remuneration, except health benefits which will be continued, at the same level of City
contribution provided Department head level employees (and at the same coverage
election as at the time of termination), for the same period as the severance or until Nuñez
begins other employment, whichever occurs first. To receive Severance, Nuñez must
execute and deliver to the City a Settlement Agreement and General Release, in a form
satisfactory to the City, within twenty-one (21) days of the date of notice of the At Will
Termination and given by at least two-thirds (⅔) membership of the City Council. In the
event Nuñez elects not to sign the Settlement Agreement and General Release, Nuñez
will not be entitled to Severance. The term At Will Termination shall include Nuñez’s
resignation, but only if it is preceded by a formal request by at least two-thirds (⅔) of the
of the membership of the City Council that he resign and is outside of the termination
period specified in Section 2.b. The term At Will Termination does not include any of the
following circumstances, for which Nuñez will not be entitled to Severance: (1) his
employment is terminated by the Council at any time for cause (i.e., a For Cause
Termination); (2) Nuñez resigns or retires, except for a resignation as referenced in the
immediately preceding sentence; (3) in the event of death, or due to a medical condition
or disability, even with reasonable accommodations, Nuñez cannot perform the essential
functions of the employment position; or (4) his Agreement is not renewed and Nuñez
has received notice of non-renewal at least six (6) months’ prior to the expiration of the
Term, per Section 2.b.
e. Effect of Payment of Severance/Release.
i. It is understood and agreed by the Parties that Nuñez
is employed at will, and that upon commencement of the City’s payment of Severance to
Nuñez, any right of Nuñez to continued employment with City is terminated. The promise
and tender of payment to Nuñez, of any Severance payable herein, is in lieu of any
damages which Nuñez might claim arising out of the At Will Termination of the
employment relationship between the Parties, including lost wages, breach of contract,
express or implied, breach of covenant of good faith and fair dealing, emotional distress
and anxiety, or any similar contractual and personal injury claims.
ii. This Section does not otherwise affect, waive, nor
release any other rights Nuñez may have under this Agreement or applicable law.
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f. Abuse of Office. Pursuant to Government Code sections
53243 et seq., if Nuñez is convicted of a crime involving an abuse of his office or position,
as defined below, all of the following shall apply upon final conviction: (1) if Nuñez is
provided with administrative leave pay pending an investigation, he shall be required to
fully reimburse such amounts paid; (2) if the City, in its discretion, pays for the criminal
legal defense of Nuñez, in his official capacity, Nuñez shall be required to fully reimburse
such amounts paid; and (3) if this Agreement is terminated, any cas h settlement related
to the termination that Nuñez may receive from the City shall be fully reimbursed to City.
For purposes of this Section, “abuse of office or position” means either: (1) an abuse of
public authority, including waste, fraud, and violation of the law under color of authority
as those crimes are specifically defined under specific provision of California statute; or
(2) a crime against public justice, including a crime described in Title 7 commencing with
section 92 of the Penal Code or as specifically defined under separate provision of
California statute.
g. Public Communications. The City and Nuñez agree that
neither the City nor Nuñez, shall make any written, oral or electronic statement to any
member of the public, the press, or any City employee concerning Nuñez’s separation
from the City, except in the form of a joint press release, the content of which is mutually
agreeable to the City and Nuñez. Consent of either Party to such joint press release shall
not unreasonably be withheld. Either party may verbally repeat the substance of the joint
press release or statement in response to any inquiry. This Section 3.g shall not apply in
the event of a For Cause Termination.
h. Survival. This Section will survive termination of the
Agreement.
4. Revolving Door. Nuñez must comply with Government Code
Section 87406.3 for a period of one year after separating from service with City. This
Section will survive termination of this Agreement.
5. Compensation.
a. Base Salary. The City agrees to pay Nuñez for the services
required by this Agreement a base annual salary of three -hundred and fifteen-thousand
Dollars ($315,000.00), payable in equal installments at the same time as other employees
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of the City are paid and subject to customary withholding for taxes and other required
deductions.
b. Other Salary Adjustments. On his Anniversary Date starting
in 2025, the City may consider potential increases to Nuñez’s salary and/or any other
benefits Nuñez receives, and to make modifications in such amounts and to such extent
(whether in the nature of a merit-based base salary increase, other compensation
enhancement, or otherwise) based on performance, comparative s alaries, and the
finances of the City, as the City Council in its discretion may determine that it is desirable
to do so, to take effect upon City Council approval. The City Council may, in its discretion,
also determine to give Nuñez exceptional performance recognition in the form of a one-
time check for exceptional performance during the prior year, to take effect upon City
Council approval. Any modifications to Nuñez’s compensation or benefits as
contemplated in this Section 5.c require written amendment of this Agreement, approved
by the City Council at a regular meeting.
b.c. Bilingual Pay. If Nuñez elects to qualify for bilingual skill pay,
the City will pay him the highest amount available to management employees on a
schedule consistent with other employees.
6. Automobile. The City agrees that upon proof of insurance coverage
in an amount acceptable to the City, the City shall provide Nuñez a City-owned vehicle
for Nuñez’s exclusive use. The City will be responsible for paying for liability, proper ty
damage, and comprehensive liability insurance for the purchase, operation, maintenance,
repair, and regular replacement of said vehicle. At Nuñez’s discretion, in lieu of electing
to utilize a City-owned vehicle, he may elect to receive a monthly vehicle allowance of
Five Hundred Dollars ($500.00) per month, which shall be paid on a schedule consistent
with the unrepresented Executive Management Groupin equal installments in each pay
period. The vehicle allowance is intended to reimburse Nuñez for mileage costs and the
use of his private vehicle for City business. If Nuñez elects the allowance he must provide
his own automobile for his use in performing his duties and is responsible for all
maintenance, repair, fuel and insurance expenses for said vehicle. Nuñez agrees to
adhere to all laws, regulations, and City policies applicable to vehicles, driving, or traffic
when operating any vehicle on City-related business.
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7. Cell Phone/Technology/Equipment. The City agrees to provide
Nuñez a cell phone, laptop computer in addition to a desktop computer, and a mobile
device such as an IPad for purposes of conducting official City business. Nuñez agrees
the use of such equipment shall be for conducting City business only and shall not be
used for personal purposes.
8. Leaves, Vacation, and Holidays.
a. Sick Leave. Sick leave shall accrue and be capped at the
same amount of hours per year as provided to the unrepresented Executive Management
Group. Sick leave accrues and is accounted for on a prorated basis in each pay period.
As an existing employee of City, Nuñez has a bank of sick leave hours which he shall be
entitled to retain. Sick leave may be used for personal illness, illness of a spouse or
dependent, and doctor and dentist appointments or as otherwise provided under
California law. Sick leave earned can be cashed in (into the City’s Retirement Health
Savings (“RHS”) Plan) and/or CalPERS Service Credit at the rate of one hundred percent
(100%) of its value upon death, retirement for disability or from service, or resignation.
Accrued sick leave may also be converted to service credit under the "Credit for Unused
Sick Leave" option of the Public Employees' Retirement System per Government Code
section 20965. Any annual accrual over the maximum sick leave hours will be converted
into Nuñez’s RHS Plan account during the first full pay period in January of each year.
Nuñez upon termination of employment with the City, shall be entitled to the amount of
unused sick leave benefits credited to his RHS and/or CalPERS Service Credit account
upon the effective date of separation.
b. Vacation Leave. Nuñez shall earn of the same amount of
vacation hours per year as provided to the unrepresented Executive Management Group.
Vacation leave accrues and is accounted for on a prorated basis in each pay period. As
an employee of City, Nuñez has a bank of vacation leave hours that he shall be entitled
to maintain. Nuñez shall accrue vacation leave at his existing normal rate. Nuñez may
use vacation as it accrues. Vacation accrued by Nuñez and not taken shall be cashed out
or paid to Nuñez when separating from City service, calculated at Nuñez’s then-current
base hourly rate in accordance with the same rules that apply to the unrepresented
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Executive Management Group; it shall not be necessary to carry Nuñez on the payroll for
the vacation period available at time of separation. In the event separation from the City
is caused by Nuñez’s death, payment shall be made to Nuñez’s designated beneficiary
or in accordance with the law. Vacation is transferable from one year to the next.
c. Management Vacation (Administrative Leave). Management
vacation leave shall accrue and be capped at the same amount of hours per year as
provided to the unrepresented Executive Management Group for Nuñez to be taken at
his discretion, which shall be deemed earned on January 1 of each year. As a current
employee of the City, Nuñez has a bank of management vacation leave hours that he
shall be entitled to maintain. The highest leave accrual, maximum accrual, and cash-out
provisions provided to any represented employee’s unit, will also be offered to Nuñez.
Such cash option may be eliminated or modified to the extent it is construed as overtime
under Department of Labor Guidelines implementing provisions of the Fair Labor
Standards Act.
d. Holidays. Nuñez shall be entitled to the same number of paid
holidays per year as provided to other City unrepresented Executive Management Group
employees.
9. Retirement, Insurance, and Other Benefits.
Unless expressly addressed in this contract, Nuñez will receive the same benefits as the
unrepresented Executive Management Group.
a. CalPERS Retirement. The City agrees to execute all
necessary agreements to enroll Nuñez in the California Public Employees Retirement
System ("CalPERS") commensurate with the standard City employee retirement benefits
program, as that program may be changed from time to time. During the term of this
Agreement, City shall contribute to the employer's portion and as a Classic member under
CalPERS, Nuñez will continue to be enrolled in the 2.7% at 55 Service Retirement Benefit
formula. Nuñez shall pay eight percent (8%) of CalPERS reportable compensation toward
the employer cost of the 2.7% at 55 enhanced retirement formu la. This payment shall be
implemented as cost-sharing pursuant to Government Code section 20516(f).
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b. Pre-Taxable Benefit. To the extent permitted by CalPERS and
Internal Revenue Service regulations, this eight percent (8%) employee contribution shall
be implemented through payroll deductions on a pre-tax basis.
In addition, Nuñez shall further contribute to the costs of his retirement benefits in such
amounts, if any, hereafter approved by the City and applied to City general management
employees prior to the expiration date of this Agreement. The City does not participate in
Social Security for employees enrolled in CalPERS. Notwithstanding the foregoing, in the
event CalPERS determines Nuñez to be a classic member, Nuñez and the City shall each
pay the normal contribution in accordance with City policy. Nuñez shall complete
CalPERS’s “Reciprocal Self-Certification Form” and submit the form to the City within 10
business days after employment has commenced.
c. Medical and Other Insurance.
i. Medical.
(a) City Contribution. The City shall provide health
(medical, dental and vision) insurance benefits to Nuñez as commensurate with the
standard unrepresented Executive Management Group employee health benefits. The
City shall pay one hundred percent (100%) of the premium coverage for Nuñez, and
ninety percent (90%) of the premium coverage for all dependent care. Nuñez shall be
responsible for the remaining dependent care premium coverage, as well as all co -pays,
charges, out-of-pocket expenses, and other costs required by the insurance provider or
for any such co-pays, charges, out-of-pocket expenses, and other costs not covered by
insurance.
(b) In-Lieu Benefit. In lieu of selecting to use the
City-provided above-referenced health benefit coverage, Nuñez may elect a cash as
commensurate with the standard unrepresented Executive Management Group
employee health benefits.
ii. Life Insurance and Long Term Disability. City shall
provide Nuñez with a term life insurance policy in the amount of five hundred thousand
dollars ($500,000) and Nuñez shall name the beneficiary of the policy. City shall further
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pay the premium for long-term disability insurance, as provided to unrepresented
Executive Management Group.
iii. Deferred Compensation (457 Plan). City agrees to
provide Nuñez an annual deferred compensation pursuant to section 457 of the Internal
Revenue Code in an amount equal to the maximum contribution allowed by law, including
the normal contribution and the catch-up contribution for individuals aged 50 or over.
Payments shall be equally divided over twelve months and deposited by City into his 457
plan account each month.
d. Other Insurance. City shall provide and pay for all other
insurance mandated by State law.
10. Wellness Stipend. Nuñez shall be entitled to reimbursement for
expenses related to wellness (e.g., uninsured medical expenses, chiropractic visits,
elective dental work, fitness memberships, etc.), upon submission of receipts to the City,
up to a gross amount of one thousand Dollars ($1,000) per calendar year.
11. Professional Development. The City hereby agrees to budget for
and pay travel and subsistence expenses of Nuñez for professional travel, official travel,
meetings necessary to pursue official and other functions for the Ci ty and to continue
professional development of Nuñez, to the extent deemed reasonable by the City Council.
The City also agrees to pay for the travel and subsistence expenses of Nuñez for short
courses, institutes and seminars that are necessary for his professional development and
for the good of the City.
12. Memberships. The City agrees to pay Nuñez’s membership dues
and subscriptions in the Orange County City Manager’s Association, the International
City/County Management Association (“ICMA”), League of California Cities, California
City Managers Foundation, and other similar organizations to which the City is a member,
at City expense with prior City approval. Nuñez shall have a reasonable right to attend
meetings of such organizations.
13. General Expenses. The City recognizes that certain extraordinary
expenses of a non-personal and job-affiliated nature may be incurred by Nuñez, such as
a business-related lunch or certain expenses incurred at a conference of a professional
organization of which Nuñez is a member. The City agrees to reimburse Nuñez for
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reasonable expenses which are submitted to the City Council within thirty (30) days of
occurrence for approval and which are supported by expense receipts, statements or
personal affidavits, and an audit thereof in like manner as other demands against the City.
For the avoidance of doubt, this paragraph is intended to apply to business expenses that
Nuñez himself directly incurs in performance of his job duties.
14. Performance Evaluation. The City Council shall conduct a “mini”
review and evaluate the performance of Nuñez at the first regular meeting that is at least
120 days following the commencement of his job as City Manager. At least annually
thereafter, the City Council shall conduct a review and evaluate the performance of Nuñez
in his role as City Manager in accordance with the City Charter. At the election of either
Nuñez or the City Council, the format of such evaluation shall be a facilitated evaluation
conducted by a third-party facilitator that is mutually agreeable to both the City Council
and Nuñez, at the City Council’s expense. If neither the City Council nor Nuñez elect for
a facilitated evaluation, the format of the evaluation shall be as determined by the City
Council. The City Council shall provide Nuñez with an evaluation of his performance
based on criteria established by the City Council with the assistance of Nuñez and/or the
facilitator, if so elected. Nuñez shall be provided an adequate opportunity to discuss his
evaluation with the City Council. The annual evaluations are expected to take place within
one month before or after the Anniversary Date, or at any other time as requested by
Nuñez. Notwithstanding the foregoing, the City Council may evaluate Nuñez at any time.
15. Indemnification. In accordance with and consistent with applicable
law, the City shall provide Nuñez with a defense and indemnification, and shall hold
Nuñez harmless from and against any and all claims, actions, or causes of action of any
kind for which Nuñez may be held liable and which arise out of or relate to Nuñez’s
performance of his job duties at City, in accordance with the requirements of the California
Government Code. In addition and in accordance with and consistent with applicable law,
the City shall defend, at the City’s expense and with counsel of the City’s choosing, any
action, claim, or proceeding in which Nuñez is named and which alleges actions on the
part of Nuñez, or failures to act, within the scope of the above-referenced indemnity
obligation. Notwithstanding the foregoing, any funds provided for the legal criminal
defense of Nuñez, if such were authorized, shall be fully reimbursed to the City if Nuñez
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is convicted of a crime involving an abuse of his office or position, in accordance wi th
Government Code section 53243.1. This Section will survive the termination of the
Agreement.
16. Bonding. The City shall bear the full cost of any fidelity or other
bonds required of Nuñez, acting as City Manager of the City, under any law or ordinance.
17. Other Terms and Conditions of Employment. The City Council
may by resolution or contract amendment from time to time fix other terms and conditions
of Nuñez’s employment as the City may determine relating to the performance of his duties
as City Manager, provided that such terms and conditions are not inconsistent or in conflict
with the provisions of this Agreement, the City's Municipal Code, and all applicable laws.
18. Notices. Notices given under this Agreement shall be in writing and
shall be served personally or sent by Federal Express or some equivalent private
overnight delivery service. Notices shall be deemed received at the earlier of actual
receipt or two (2) days following transmission to an overnight carrier.
City Attn: City Council
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
With a copy to:
Santa Ana City Attorney
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Nuñez
To the address on file with the City’s Human
Resource Department
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19. Arbitration. Any controversy or claim arising out of the interpretation
or performance of this Agreement, or otherwise pertaining to this Agreement or Nuñez’s
appointment and service as the City Manager, shall be resolv ed by binding arbitration in
Orange County, California, in accordance with the rules of the Judicial Arbitration and
Mediation Services, Inc., or such other arbitration service that the City and Nuñez may
mutually select; and the arbitration award may be enforced as provided by California law.
The City shall be solely responsible for the costs of administration and the costs of the
arbitrator.
20. Assignment. This Agreement is not assignable by either the City or
Nuñez. The City and Nuñez acknowledge that this Agreement is a personal services
agreement for the personal services of the City Manager.
21. General Provisions
a. The text herein shall constitute the entire agreement between
the Parties. No representations have been made or relied upon except as set forth herein.
The Agreement is deemed to have been prepared by all of the Parties hereto, and any
uncertainty or ambiguity herein shall not be interpreted against the drafter, but rather, if
such ambiguity or uncertainty exists, shall be interpreted according to the applicable rules
of interpretation of contracts under the law of the State of California. The use of section
headings in this Agreement is provided for convenience only and will not have any impact
on the interpretation of particular provisions.
b. If Nuñez dies or becomes incapacitated during the Term of
this Agreement, any accrued and unpaid wages provided by the terms of this Agreement
shall be paid by City to Nuñez’s spouse or if no spouse, to Nuñez’s dependents. The
Agreement shall be binding upon, or shall inure to the benefit of, the respective heirs,
executors, administrators, successors and assigns of the Parties; provided, however,
that Nuñez may not assign Nuñez’s obligations hereunder.
c. If any provision or portion hereof contained in this Agreement
is held to be unconstitutional, invalid, 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 and effect.
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d. This Agreement represents the entire understanding of the
City and Nuñez as to those matters contained herein, and no prior oral or written
understanding shall be of any force or effect with respect to those matters covered by this
Agreement. Except as specifically authorized by this Agreement, this Agreement may not
be modified, altered or amended, except in writing approved by the City Council at a
regular public meeting and Nuñez, and signed by the Mayor and Nuñez.
e. Nuñez is expected to conform to the ICMA Code of Ethics.
Nuñez shall not engage in any business or transaction, or have a financial or other
personal interest or association, direct or indirect, that is in conflict with the proper
discharge of his official duties or that would tend to impair the independence of his
judgment or action in the performance of his official duties. Nuñez shall also be subject
to the conflict of interest provisions of the Government Code of the State of California, the
City's Municipal Code, and any other conflict of interest regulations applicable to Nuñez’s
employment with the City.
f. This Agreement shall be construed in accordance with the
laws of the State of California and the parties agree that venue shall be in the state court
in the County of Orange, California.
g. Nuñez acknowledges that he has had the opportunity to
consult legal counsel in regard to this Agreement, that he has read and understands this
Agreement, that he is fully aware of its legal effect, and that he has entered into it freely
and voluntarily and based on his own judgment and not on any representations or
promises other than those contained in the Agreement .
IN WITNESS WHEREOF, the City and Nuñez have executed this Agreement as
of the day and year first above written.
NUÑEZ
________________________
ALVARO NUÑEZ
55394.00000\42495009.1
CITY OF SANTA ANA
By: __________________________
VALERIE AMEZCUA, MAYOR
ATTEST:
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JENNIFER HALL, CITY CLERK
APPROVED AS TO FORM:
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SONIA CARVALHO, CITY ATTORNEY