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HomeMy Public PortalAbout2015.004 (01-06-15)RESOLUTION NO. 2015.004 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD APPROVING AN EMPLOYMENT AGREEMENT WITH MARK A. FLORES FOR THE POSITION OF DIRECTOR OF RECREATION AND COMMUNITY SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT WHEREAS, the City ,of Lynwood is a General Law City under California law and is governed by an elected City Council; and WHEREAS, the management of the day -to -day business of the City is the responsibility of the City Manager; and WHEREAS, under the general direction of the City Manager, the Director of Recreation and Community Services will be in charge of the administration of the City's Recreation and Community Services Department and be 'Department Director of the Department; and WHEREAS, the City Manager has selected the Interim Director of Recreation and Community Services for the position of Director of Recreation and Community Services and authorized the terms of employment to the Director of Recreation and Community Services under an "at- will" employment agreement, a copy of which is attached hereto as "Exhibit A ". NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LYNWOOD DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The City Manager is authorized to execute the attached at -will DIRECTOR OF RECREATION AND COMMUNITY SERVICES EMPLOYMENT AGREEMENT on behalf of the City, subject to the City Attorney's approval of the form. Section 2.' That the City Council of the City of Lynwood appropriates and transfers $18,821 from the unappropriated General Fund to account for the difference in base salary and benefits. The appropriation of $18,821 shall be budgeted in FY 15. Section 3. The Director of Recreation and Community Services is authorized and directed to commence performance of the duties of the position upon the effective date of the agreement. Section 4. That this Resolution is to be given effect upon its adoption by the City Council of the City of Lynwood and execution of the same by the appropriate parties. PASSED, APPROVED and ADOPTED this 6t" day of January, 2015. ATTEST: u Maria Quinonez, City Clerk APPROVED AS TO FORM: � it,-/j �(— Davi A. Garcia, City Attorney Luis Solache, Mayor APPROVED AS TO CONTENT: J. Arnoldo Beltran, City Manager 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 6th day of January, 2015. AYES: COUNCIL MEMBERS ALATORRE, SANTILLAN -BEAS AND SOLACHE NOES: NONE ABSENT: NONE ABSTAIN: NONE STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) CASTRO, HERNANDEZ, 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. 2015.004 on file in my office and that said Resolution was adopted on the date and by the vote therein stated. Dated this 6th day of January, 2015. /1 r Win- THE CITY OF LYNWOOD DIRECTOR OF RECREATION AND COMMUNITY SERVICES EMPLOYMENT AGREEMENT This at -will DIRECTOR OF RECREATION AND COMMUNITY SERVICES AGREEMENT ( "Agreement ") is effective the 7`f' day of January, 2015, by and between the CITY OF LYNWOOD, a general law city and municipal corporation ( "City ") and MARK A. FLORES, an individual ( "Employee "). The City and Employee may be referred to individually as a "Party" or collectively as "the Parties ". RECITALS WHEREAS, the City Council of the City ( "Council ") now desires to employ Employee to serve in the at -will position of the Director of Recreation and Community Services for the City; WHEREAS, Employee desires to perform and assume responsibility for the provisions of such professional services to the City; WHEREAS, the parties wish to establish the terms and conditions of Employee's services to the City as described in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the City and Employee hereby agree as follows: AGREEMENT 1.0 EMPLOYMENT & DUTIES 1.1 Duties. City hereby employs Employee to serve as the City's Director of Recreation and Community Services, to perform the functions and duties of Director of Recreation and Community Services as such duties are customarily performed by a person in such position, as specified in any position description for the Director of Recreation and Community Services and to perform such other legally permissible and proper duties and functions as the City Manager shall, from time -to -time, direct or assign, including, but not limited to, the duties of Director of Recreation and Community Services of the City, unless said duties are reassigned by the City Manager. 1.2 Work Schedule. The parties agree that the Employee shall engage in the hours of work that are necessary to fulfill the obligations of the position and must devote -a time in addition to the City's regular business hours to the business of the City. Employee . acknowledges that City Hall is open Monday through Thursday from 7:00 am to 6:00 pm and is closed on Friday such that the City's standard work week is 4 10- hour days. Notwithstanding the foregoing, the Employee will be permitted reasonable time off during the City's business hours, as is customary for exempt employees, so long as the time off does not interfere with the City's business. 1.3 Outside Activities. The Employee shall not spend more than 10 hours per week in teaching, consulting or other non- City- connected business activity without the prior approval of the City Manager, and none of Employee's outside activities shall be in conflict with his performance and responsibilities as Director of Recreation and Community Services. 1.4 Direction. The City shall retain full direction and control of the manner, means and methods by which Employee performs the services for which he is employed hereunder and of the place or places at which such services shall be rendered. 1.5 Employment Status, At -Will. Employee shall serve at the will and pleasure of the City Manager and understands he is an "at -will" employee serving at the pleasure of the City Manager and subject to summary dismissal without any right of notice or hearing, including any so- called Skelly hearing. City Manager may terminate the employment of Employee at any time, with or without cause, as set forth in Section 3.2 below. The Parties acknowledge that while Employee is afforded the benefits described in Article 6.0 and those benefits provided other City management in accordance with the "Comprehensive Memorandum of Understanding for Submission to the Lynwood City Council Regarding Lynwood Employees Management Bargaining Group" ( "MOU "), as may be amended, a copy of which is attached hereto as Exhibit "A," Employee is not an employee represented by any bargaining unit and 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. 1.6 City Documents. All data, studies, reports and other documents prepared by Employee while performing his duties during the term of this Agreement shall be furnished to and become the property of the City, without restriction or limitation on their use. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to Employee in connection with the performance of this Agreement shall be held confidential by Employee to the extent permitted by applicable law. Such materials shall not, without the prior written consent of the Council, be used by Employee for any purposes other than the performance of his duties for the City. Nor shall such materials be disclosed to any person or entity not connected with the performance of services under this Agreement, except as required by law. 1.7 FLSA Exempt Status. Employee agrees that his position is that of an exempt employee for the purposes of the Fair Labor Standards Act. 2.0 COMPENSATION AND REIMBURSEMENT 2.1 Compensation. For the services rendered pursuant to this Agreement, City agrees to pay Employee an annual salary of One Hundred Ten Thousand dollars and 00/100 ($110,000.00)( "Salary "), which shall be paid on a bi- weekly at the same time that other employees of City are paid. The Salary shall be adjusted for payroll taxes, workers' compensation and other payroll - related liability costs. Employee understands and agrees that his compensation for the first pay period that he is working for the City shall be prorated consistent with all applicable laws as he is commencing work in the middle of a pay period. 2.2 Annual Salary Review. City and Employee agree to conduct an annual salary review concurrently with the annual performance evaluation set forth in Article 5.0. The Employee shall receive any Cost of Living Allowances (COLA's) "consistent with" or "provided by" the Management Benefit Plan. In addition, a merit increase up to five percent (5 %) of the Salary may be granted on the Employee's one year anniversary, any subsequent merit increases will be at the sole discretion of the City Manager. 2.3 Effectuating Salary Adjustment. City and Employee agree that any upward adjustment in the Salary paid to Employee shall be at the sole discretion of the City Manager. 3.0 TERM 3.1 Commencement & Effective Date. Employee shall commence his services hereunder at 7:00 a.m. Pacific time on the 7th day of January, 2015, which shall also be deemed the effective date of this Agreement. 3.2 Termination Without Cause. The City Manager or his designee may terminate this Agreement at any time with or without cause, without notice to Employee. Additionally, Employee may terminate this Agreement at any time with or without cause; provided he provides City Manager with at least thirty (30) days advance written notice prior to the effective date of termination, unless a shorter period is acceptable to the City Manager. Employee expressly agrees that he shall not be entitled to any severance pay as the result of any termination of this Agreement initiated by the Employee; whereas, should the City elect to terminate the services of Employee hereunder, City shall, upon the effective date of such termination, pay to Employee severance as provided in Section 4.1 below, except in the case of termination for cause under Section 3.3 below, and all accrued but unpaid Salary and vested benefits through the date of termination. 3.3 Termination for Cause. Notwithstanding anything herein to the contrary, the City may terminate Employee's employment hereunder for cause for any one of the following reasons: Employee's loss of legal capacity; personal dishonesty by Employee in performing his duties hereunder; acts of fraud or misrepresentation or any act of malfeasance or moral turpitude; conflicts of interest or breach of fiduciary duty; gross negligence or incompetence in performing his duties hereunder; willful breach by Employee of any provision of this Agreement; Employee's insubordination or willful failure to follow City policies, procedures, rules or regulations; Employee's willful and serious misconduct; actions by Employee that are seriously detrimental to the reputation of the City; or Employee's conviction of a criminal offense. The City may also terminate Employee's employment under this Agreement for material performance deficiencies, other than those listed above, upon written notice to Employee, specifying the nature of the performance deficiencies, and upon Employee's failure to improve said deficiencies within thirty (30) days thereafter. Upon termination of Employee's employment with the City, the City shall be under no further obligation to Employee, except to pay all accrued but unpaid Salary and vested benefits through the date of termination. 3.4 Cooperation. After notice of termination, Employee shall cooperate with the City, as requested by the City, to effect a transition of Employee's responsibilities and to ensure that the City is aware of all matters being handled by Employee. 4.0 SEVERANCE 4.1 Severance Pay. Except as provided in Section 3.3, should City elect to terminate, City shall, upon the effective date of such termination, pay Employee severance pay in a sum equal to three (3) months of his Salary, together with all other vested benefits, as and for severance pay. 4.2 Payment For Accrued Benefits. Except as provided for in Article 6.0, upon the termination of this Agreement and the services of Employee thereunder, City shall pay to Employee the cash equivalent of all vacation leave then accrued. Such cash equivalent shall be calculated by dividing Employee'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. 4.3 Sole Rights. The severance rights provided in Article 4.0 shall constitute the sole and only entitlement of Employee in the event of the termination, other than for cause or non - extension of this Agreement, and Employee expressly waives any and all other rights except as provided herein. Any and all severance rights are conditioned upon execution of standard "Agreement of Separation, Severance and General Release" attached hereto as Exhibit "B." 4.4 Gov. Code Section 53260(a) Provision. Any other term of this Agreement notwithstanding, the maximum severance that Employee may receive under this Agreement shall not exceed the limitations provided in Government Code Sections 53260- 53264, or other applicable law. 5.0 PERFORMANCE EVALUATIONS_ 5.1 Purpose. The performance review and evaluation process set forth herein is intended to provide review and feedback to Employee so as to facilitate a more effective management of City. Nothing herein shall be deemed to alter or change the employment status of Employee, nor shall this Article 5.0 be construed as requiring "cause" to terminate this Agreement or the services of Employee thereunder. 5.2 Six Month Evaluation. The City Manager shall review and evaluate the performance of Employee within six (6) months after the commencement of this Agreement. The City. Manager may consider Employee's performance in light of Approved Goals or other criteria as deemed appropriate by the City Manager. Such review and evaluation shall be conducted in accordance with the purpose noted in Section 5.1 above. 5.3 Annual Evaluation. The City Manager may review and evaluate the performance of Employee annually, within thirty (30) days after each anniversary date. In addition, Employee shall submit for City Manager's consideration at those times established by the City Manager, but at least annually, Employee's proposed perfonnance goals and objectives and incorporate the City Manager's suggestions. Such review and evaluation shall be conducted concurrently with an annual salary review, and in accordance with the purpose noted in Section 5.1 above. 6.0 BENEFITS 6.1 Automobile Allowance. City is to provide Employee with a monthly vehicle allowance consistent with the amount paid to LEMG members in accordance with the MOU as full compensation for the usage of Employee's personal vehicle for City - related business, which vehicle allowance to be paid to Employee through payroll, with applicable taxes and other payroll - liability costs deducted. Employee understands that any applicable taxes are his responsibility to pay and not covered by the City. 6.2 Electronic Media Allowance. City shall provide Employee with a monthly allowance for electronic media consistent with the amount paid pursuant to the City's Administrative Policy regarding use of Telecommunication Equipment (one hundred and twenty five dollars ($125.00) per month) as full compensation for the cost associated with the purchase and use of electronic media to be used for City- reIated business, which allowance shall be paid to Employee through payroll, with applicable taxes and other payroll - liability costs deducted. Subject to the requirements of the City's Administrative Policy regarding use of Telecommunication Equipment, Employee shall be also be entitled to select electronic equipment of his choice not to exceed the onetime cost of three hundred dollars ($300). Employee understands that any applicable taxes are his responsibility to pay and not covered by the City. 6.3 Medical, Dental, Vision and Life Insurance. City shall provide to Employee the same group medical, dental, vision, and life insurance plans and /or programs as are offered to the City's Management in accordance with the MOU. The City's contribution on behalf of Employee toward any PERS health insurance plan shall be at the family premium rate for Kaiser coverage, as may be amended by the MOU. In addition, the City will pay the cost of dental plan premiums and vision plan premiums for Employee and his eligible dependents according to the MOU. City shall provide and pay for a life insurance policy for Employee in the amount of Fifty Thousand Dollars ($50,000). 6.4 PERS. In accordance with the MOU, City shall pay 0% (of 8 %) of Employee's share of all required retirement contributions to the California Public Employees' Retirement System ( "PERS "). Employee shall pay his full member contribution directly to CalPERS through payroll withholding with no Employer Paid Member Contribution from the City. The City will also afford Employee the retirement benefit commonly referred to as "3% at 60." 6.5 Vacation, Personal and Sick Leave. In accordance with the MOU, and subject to vacation, personal and sick leave accruals as outlined in the Management Benefit Plan, Employee 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; and personal leave at a rate of Twenty (20) hours per year. Employee's accrual rates shall be revised if the accrual rates, as set forth in the Management Benefit Plan, are revised. Additionally, as further described in the Management Benefit Plan sell back provisions, vacation leave may be converted into cash, up to One Hundred (100) hours in one year. The aforementioned benefits shall be subject to adjustment as may be revised by the MOU. 6.6 Holidays. In accordance with the MOU, Employee shall be entitled to Ten (10) days of paid holiday time and a total of Five (5) floating holidays per year. The aforementioned holiday benefits shall be subject to adjustment as may be revised by the MOU. 6.7 Executive Leave. In accordance with the MOU, Employee shall accrue executive leave at the rate of Ninety (90) hours per year. Executive leave shall not be carried over from year -to -year. The aforementioned leave benefits shall be subject to adjustment as may be revised by the MOU. 6.8 Additional Benefits. Unless otherwise specified to the contrary in this Agreement, Employee shall be entitled to cost of living increases and such additional benefits, if any, as are afforded other City Management employees pursuant to the MOU attached hereto as Exhibit "A." 7.0 PROFESSIONAL DEVELOPMENT 7.1 Membership. City encourages Employee's continued professional development and membership and shall provide payment of appropriate related costs for such activities, as approved by the City Manager. 7.2 Out -of -Town Meetings & Seminars. City agrees to reimburse Employee the actual cost for registration, travel, lodging, and meals and other reasonable expenses incurred by Employee while attending overnight out -of -town meetings or seminars related to his 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, Employee must have budgeted funds available for same. 7.3 Local _Meetings & Seminars. City agrees to reimburse Employee the actual cost of registration, meals and other expenses necessarily incurred while in attendance at local meetings or seminars related to his employment with City in accordance with the City's policies for expense reimbursement. 7.4 Incidental Expenses. City agrees to reimburse Employee the actual cost of those incidental expenses necessarily incurred by Employee while engaged in the business of City upon the presentation of an appropriate receipt therefor in accordance with the City's policies for expense reimbursement. 7.5 Approval by City Manager. To be eligible to receive reimbursement for the memberships, travel and other expenses incurred pursuant to this Article 7.0, Employee shall obtain advance approval of City Manager. 8.0 INDEMNIFICATION 8.1 Indemnification. For the purposes of indemnification and defense of legal actions, Employee 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 Employee 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 Employee's serves under this Agreement as provided for in the California ,Government Code. This section shall not apply to any intentional tort or crime committed by Employee, to any action outside the course and scope of the services provided by Employee under this Agreement, or any other intentional or malicious conduct or gross negligence of Employee. 9.0 GENERAL PROVISIONS 9.1 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 Employee'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. 9.2 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be personally served or shall be sufficiently given when served upon the other party as sent by United States Postal Service, postage prepaid and addressed as follows: To City: To Employee: City Manager At his home address on file with the City City of Lynwood 11330 Bullis Road Lynwood, California 90262 Notices shall be deemed given as of the date of personal service or within two (2) days of the date of deposit in the. course of transmission with the United States Postal Service. 9.3 Conflicts Prohibited. During the term of this Agreement, Employee 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 Employee's duties under this Agreement. Employee 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. 9.4 Other Employment. The parties acknowledge that Employee may conduct, participate in or otherwise be in engaged in independent consulting projects, not to exceed 10 hours (or one workday) per week. In no event should any services, employment or business pursuits be conducted in violation of this Agreement. 9.5 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 any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times. 9.6 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. 9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, which are in full force and effect as of the date of execution. 9.8 Independent Legal Advice. City and Employee 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 Employee 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. 9.9 AB 1344. Assembly Bill 1344 was recently enacted as a means to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. AB 1344 also requires that contracts between a local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency (California Government Code §§ 53243 - 53243.4). These sections are set forth in full in Exhibit "C" attached hereto and incorporated herein. Accordingly, the parties agree that it is their mutual intent to fully comply with the Government Code sections that are part of AB 1344 and all other applicable law as it exists as of the date of execution of this Agreement and as such laws may be amended from time to time thereafter. Specifically, AB 1344 includes the following Government Code sections which are hereby incorporated by this Agreement: §53243. Reimbursement of paid leave salary required upon conviction of crime involving office or position. §53243.1. Reimbursement of legal criminal defense upon conviction of crime involving office or position. §53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position. §53243.3. Reimbursement of non - contractual payments upon conviction or crime involving office or position. §53243.4. Abuse of office or position defined. Employee has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to Employee, including that Employee agrees that any cash settlement or severance related to the termination that Employee may receive from the City shall be fully reimbursed to the local agency if Employee is convicted of a crime involving an abuse of his or his office or position. IN WITNESS WHEREOF, the City of Lynwood has caused this Agreement to be tp signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly authorized, and Employee has signed and executed this Agreement, all in triplicate. ATTEST: r VJA 11'.07 Maria Quinonez, Ci Clerk &17 APPROVED AS TO FORM: David A. Garcia, City Attorney CITY OF LYNWOOD- f 4 Luis Solache, Mayor Arnoldo Beltran, City Manager EMPLOYEE: Mark A. Flores