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