Loading...
HomeMy Public PortalAbout2014.029 (02-04-14)RESOLUTION NO. 2014.029 • RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD APPROVING • CITY MANAGER EMPLOYMENT AGREEMENT WITH SARAH MAGANA WITHERS WHEREAS, the City Council wishes to enter into a City Manager employment agreement with Sarah Magana Withers for performance of City Manager duties. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LYNWOOD DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: Section 1. That the Lynwood City Council approves an employment agreement with Sarah Magana Withers for performance of City Manager duties. Section 2. That the Mayor is authorized to execute the attached employment agreement, and any addendum, with Sarah Magana Withers to perform City Manager duties. Section 3. That this Resolution shall take effect on February 5, 2014. Section 4. The City Clerk shall certify as to the adoption of this Resolution. PASSED, APPROVED and ADOPTED this 4th day of February, 2014. Mr ' • • Y. •� ATTEST: Maria Quinonez, City Clerk APPROVED AS TO FORM: 1 W David A. Garcia, City Attorney STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the foregoing Resolution was passed and adopted by the City Council of the City of Lynwood at a regular meeting held on the 4th day of February, 2014. AYES: COUNCIL MEMBERS ALATORRE, SANTILLAN -BEAS, HERNANDEZ AND CASTRO NOES: COUNCIL MEMBER SOLACHE ABSENT: NONE ABSTAIN: NONE Maria Quinonez, City Clerk STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, the undersigned, City Clerk of the City of Lynwood, and the Clerk of the City Council of said City, do hereby certify that the above foregoing is a full, true and correct copy of Resolution No. 2014.029 on file in my office and that said Resolution was adopted on the date and by the vote therein stated. Dated this 4`h day of February, 2014. ji �I1E ,WMWWA/ i �� Maria QGinonez, CITY MANAGER EMPLOYMENT AGREEMENT This Agreement, made and entered into this _th day of January, 2014, by and between the City of Lynwood, a municipal corporation, hereinafter called, "Employer" or "the City," and Sarah Magana Withers, hereinafter called "Employee" or "City Manager." From time to time Employer and Employee are referred to as "party" or "parties." WITNESSETH WHEREAS, Employer desires to employ the services of Employee as the City Manager, pursuant to the provisions of California law and the Lynwood Municipal Code; and WHEREAS, it is the desire of the governing board, hereafter called "City Council" to provide certain benefits, to establish certain conditions of employment, and to set working conditions for Employee; and WHEREAS, Employee desires to accept employment as City Manager of Employer; NOW THEREFORE, in consideration of the mutual covenants herein contained the parties agree as follows: Section t: Duties Employer hereby agrees to employ Employee as City Manager to perform the functions and duties specified in Section 2 -2 of the Lynwood Municipal Code and to perform such other legally permissible and proper duties and functions as the City Council shall from time to time direct and assign including serving as Executive Director for the Successor Agency to the Lynwood Redevelopment Agency, Lynwood Public Finance Authority, Lynwood Information, Inc. and any and all City related entities. Section 2: At -Will Status A. Employee shall serve at the pleasure of the City Council and both parties fully acknowledge and hereby state that Employee is an at -will employee. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City Council to terminate the services of Employee for any reason, with or without cause, at any time, as the City Council in no way intends to alter, abrogate, or change its right to dismiss an at -will employee without notice, without reason, and without affording any right of appeal, as set forth in California Labor Code section 2922. Employee understands that she is an "at- will" employee serving at the pleasure of the City and subject to summary dismissal without any right of notice or hearing, including any so- called Skelly hearing. Employee acknowledges that while Employee is afforded benefits described in any memorandum or in an agreement with any employee bargaining unit, or is afforded benefits provided other City management, nothing in this Agreement or the City's policies or,procedures, either now or in the future, is intended to change the at -will nature of this relationship. B. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of Employee to resign at any time from her position with City. Section 3: Suspension Employer may suspend the employee with or without full pay and benefits at any time during the term of agreement. Section 4: Termination and Severance Pa A. In the event Employee is terminated during such time that Employee is willing and able to perform her duties under this Agreement, then in that event Employer agrees to pay Employee a lump sum cash payment equal to six (6) months' aggregate salary including any eligible sell back of leave provisions described in the City's Management Benefit Plan for said period, provided that Employee first signs a complete release absolving the Employer from any and all claims or potential claims that Employee may have against the City. Employer shall have no obligation to pay the aggregate severance sum designated in the above paragraph in the event the Employee is terminated for 1) conviction of any crime involving moral turpitude; 2) City Manager's loss of legal capacity; 3) personal dishonesty by City Manager in performing her duties hereunder; 4) acts of fraud or misrepresentation or any act of malfeasance or moral turpitude; 5) conflicts of interest or breach of fiduciary duty; 6) gross negligence or incompetence in performing her duties hereunder; 7) willful breach by City Manager of any provision of this Agreement; 8) City Manager's insubordination or willful failure to follow City policies, procedures, rules or regulations; 9) City Manager's willful and serious misconduct; or 10) actions by City Manager that are detrimental to the reputation of the City; or 1 1) for material performance deficiencies, Upon termination of City Manager's employment with the City, the City shall be under no further obligation to City Manager, except to pay all accrued but unpaid Salary and vested benefits through date of termination. B. In the event Employer at any time during the term of this Agreement reduces the salary or other financial benefits of Employee in a greater percentage than applicable across - the -board reduction of all employees of Employer, or in the event Employer refuses to comply with any other provision benefiting Employee herein, or the Employee resigns following a suggestion whether formal or informal, by the City Council that she resign, then, in that event Employee may, at her option, be deemed to be "terminated" at the date of such reduction or such refusal to comply within the meaning and context of the herein severance pay provision. C. Payment For Accrued Benefits: Upon termination of this Agreement and the services of City Manager hereunder, City shall pay to City Manager the cash equivalent of all vacation accrued. Such cash equivalent shall be calculated by dividing City Manager's then - prevailing annual salary by 2080 hours and by multiplying the resulting quotient by the number of hours accrued (but unused) vacation, as the case may be. D. Sole Rim: The severance rights provided in this Section shall constitute the sole and only entitlement of City Manager in the event of the termination, and City Manager expressly waives any and all other rights except as provided herein. Section 5: Disability If Employee is permanently disabled or is otherwise unable to perform her duties because of sickness, accident, injury, mental incapacity or health for a period of four successive weeks beyond any accrued sick leave, Employer shall have the option to terminate this Agreement. Section 6: Salary A. Employer agrees to pay Employee for her services rendered pursuant hereto an annual base salary of ONE- HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($175,000.00) payable in installments at the same time as the other management employees of Employer are paid. Employer agrees to conduct an annual performance review not less than sixty (60) days prior to the anniversary date of this Agreement. Provided the performance review is satisfactory to the City Council, Employee's annual salary shall be adjusted on the anniversary date by a sum not greater than five percent (5 %) of the annual salary for the preceding year. In addition to any performance adjustments to salary, Employer will provide cost of living adjustments to Employee's Base Salary on the anniversary dates in an amount (percent based) equal to cost of the increase granted to the management group. For purposes of such increases only increases received by the entire management group shall be considered and any increase or increases granted to members of the management group that result from a reclassification of titles or positions shall not be taken into account in settling Employee's cost of living adjustments to the Base Salary. B. California Law /FLSA Exempt Status: City Manager agrees that her position is that of any exempt employee for the purposes of the Fair Labor Standards Act and under California law. C. City Manager understands and agrees that her compensation for the first pay period that she is working under this Agreement shall be prorated consistent with all applicable laws as she is commencing work in the middle of a pay period. Section 7: Performance Evaluation A. The City Council may review and evaluate the performance of Employee periodically. This review and evaluation shall be in accordance with specific criteria developed jointly by Employer and Employee. Criteria may be added to or deleted from, as the City Council may from time to time determine in consultation with the Employee. Further, the City Council shall provide the Employee with a summary of the findings of the City Council and provide an adequate opportunity for the Employee to discuss her 3 evaluation with the City Council B. Annually, the City Council and Employee shall define such goals and performance objectives that they determine necessary for the proper operation of the City of Lynwood and in the attainment of the City Council's policy objectives and shall further establish a relative priority among those various goals and objectives, said goals and objectives to be reduced in writing. They shall generally be attainable within the time limitations as specified and the annual operating and capital budgets and appropriations provided. C. In effecting the provisions of this section, the City Council and Employee mutually agree to abide by provisions of applicable law D. Pursuant to the provisions of Section 2- 2.9(b) of the Lynwood Municipal Code, the City Manager shall not be removed from office during or within a period of ninety (90) days next succeeding any general municipal election held in the City at which election a member of the City Council is elected. Section 8: Hours of Work It is recognized that Employee must devote a great deal of time outside the normal office hours to business of the Employer, and to that end Employee will be allowed to take compensatory time off she shall deem appropriate during said normal office hours in the same manner as accrued by the management staff on an annual basis. Section 9: Outside Activities Employee shall not spend more than ten (10) hours per week in teaching, consulting or other non - Employer- connected business without the prior approval of the City Council, and none of Employee's outside activities shall be in conflict with her performance and responsibilities as City Manager. Section 10: Benefits A. Electronic Media Allowance: Employer shall provide City Manager with a monthly allowance for electronic media of Two Hundred and Fifty Dollars ($250.00) as full compensation for the cost associated with the purchase and use of electronic media to be used for City — related business, which allowance shall be paid to City Manager through payroll, with applicable taxes and other payroll - liability cost deducted. City Manager understands that any applicable taxes are her responsibility to pay and not covered by the City. B. Bilingual Pay: Employee may be paid bilingual pay of One Hundred Twenty Five Dollars ($125.00) per month upon passing a verbal bilingual exam to the satisfaction of the Human Resources Department. C. Medical. Dental, Vision and Life Insurance: Employer agrees to put into force and to make required premium payments for Employee for insurance policies for life, accident, sickness, disability income benefits, major medical, dental, vision, employee assistance program benefits and dependent's coverage group insurance covering Employee and her dependents as provided to all management employees of Employer. Employer agrees to provide hospitalization, surgical and comprehensive medical insurance for Employee and her dependents and to pay the premiums thereon equal to that which is provided all management employees of Employer. D. PERS: Employee shall be covered by the normal City Retirement System in the category of City Manager. Employer agrees to pay directly to the Public Employers Retirement System all payments needed to satisfy Employee's share of the contribution to PERS. E. Vacation, Personal and Sick Leave: And subject to vacation,.personal and sick leave accruals as outlined in the Management Benefit Plan, City Manger shall accrue leave as follows: Vacation at the rate of Eighty (80) hours per year; Sick leave at a rate of Ninety -Six (96) hours per year; Personal leave at a rate of Twenty (20) hours per year. City Manager's accrual rates shall be revised if the accrual rates, as set forth in the Management Benefit Plan sell back provisions, Vacation leave may be converted into cash, up to One Hundred and Sixty (160) hours in one year. F. Employee shall be entitled to military reserve leave time pursuant to state law and local government policy. Section 11: Dues and Subscriptions, If the amounts are duly approved in advance by City Council, Employer agrees to budget for and to pay for professional dues and subscriptions expenses of Employee necessary for her continuation and full participation in national, regional State, and local associations, and organizations necessary and desirable for her continued professional participation, growth and advancement, and for the good of the Employer. Section 12: Professional Development A. Membership: City encourages City Manager's continued professional development and membership and shall provide payment of appropriate related costs for such activities. B. Out -of -Town Meetings and Seminars: City agrees to reimburse City Manager the actual cost for registration, travel, lodging, and meals and other reasonable expenses incurred by City Manager while attending overnight out -of -town meetings or seminars related to her employment which are pre- approved by the City Manager and in accordance with the City's policies for expense reimbursement. To be eligible to receive reimbursement for meals and 'lodging for out -of -town meetings or seminars, City Manager must have budgeted funds available. C. Local Meetings and Seminars: City agrees to reimburse City Manager the actual cost of registration, meals and other expenses necessarily incurred while in attendance at local meetings or seminars related to her employment with City in accordance with the City's policies for expense reimbursement. D. Incidental Expenses: City agrees to reimburse City Manager the actual cost of those incidental expenses necessarily incurred by City Manager while engaged in the business of City upon the presentation of an appropriate receipt therefore in accordance with the City's policies for expense reimbursement. E. Approval by City Council: To be eligible to receive reimbursement for the memberships,,travel and other expenses, City Manager shall obtain advance approval of City Council. Section 13: Indemnification For the purposes of indemnification and defense of legal actions, City Manager shall be considered an employee of the City and entitled to the same rights and subject to the same obligations as are provided for all other employees of the City as set forth in the California Government Code. Accordingly, City shall defend, hold harmless and indemnify City Manager against any tort, professional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of City Manager's serves under this Agreement, to the extent required under California Labor Code 2802. This section shall not apply to any intentional tort or crime committed by City Manager, to any action outside the course and scope of the services provided by City Manager under this Agreement, or another intentional or malicious conduct or gross of City Manager. Section 14: Bonding Employer shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. Section 15: Other Terms and Conditions of Employment A. The City Council, 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 Lynwood Municipal Code or any other applicable law. B. All provisions of the Lynwood Municipal Code, and regulations and rules of the Employer relating to vacation and sick leave, retirement and pension system contributions, holiday, and benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Employee as they would to other employees of Employer, in additional to said benefits enumerated specifically for the benefit of Employee except as herein provided. C. Employee shall receive compensable time, vacation and sick leave benefits as are afforded to department heads, including provisions governing accrual and payment therefore on termination of employment. Employee shall be entitled to sell back leave schedules in line with provisions eligible to all management employees. Section 16: No Reduction of Benefits Employer shall not at any time during the term of this agreement reduce the salary, compensation or other financial benefits of Employee, except to the degree (measured in percentage terms) of such a reduction across - the -board for all employees of the Employer. Section 17: Notices Notices pursuant to this agreement shall be given by deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows: EMPLOYER City of Lynwood 11330 Bullis Road Lynwood, California 90262 Attn: Mayor EMPLOYEE Sarah Magana Withers Alternatively, notices required pursuant to this agreement may be personally served in the same manner as is applicable to civil judicial practice. Notice shall be given 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. Section 18: General Provisions A. Entire Agreement: This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, either oral or in writing between the parties with respect to City Manager's employment by City and contains all of the covenants and agreements between the parties with respect to such employment. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by either party, or anyone acting on behalf of either party, which are not embodied herein, and that no other agreement, statement or promises not contained in this Agreement shall be valid or binding upon either party. B. Conflicts Prohibited: During the term of this Agreement, City Manager shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of City Manager's duties under this Agreement. City Manager shall comply with all requirements of law, including but not limited to, Sections 87100 et seq., Section 1090 and Section 1125 of the Government Code, and all other similar statutory and administrative rules. C. Other Employment: The parties acknowledge that City Manager may conduct, participate in or otherwise be in engaged in independent consulting projects not to exceed ten (10) hours (or one workday) per week. In no event should any services, employment or business pursuits be conducted in violation of the Agreement. D. Effect of Waiver: The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of that right or power for all or any other times. E. Partial Invalidity: If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. F. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, which are full force and effect as of the date of execution. G. Independent Legal Advice: City and City Manager represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this Agreement and, City and City Manager further represent and warrant that each has carefully reviewed this entire Agreement and that each and every term thereof is understood and that the terms of this Agreement are contractual and not a mere recital. This Agreement shall not be construed against the party or its representatives who drafted it or who drafted any portion thereof. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the City of Lynwood has caused this Agreement to be signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly authorized, and City Manager has signed and executed this Agreement, all in triplicate. Dated: 2014 ATTEST: aria umonez, City Clerk Dated: 2014 .l APPROVED AS TO FORM: David A. Garcia, City Attorney 9 CITY OF LYNWOOD: Aide Castro, Mayor Sarah Magana )Atbers, City Manager