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HomeMy Public PortalAbout2015.182 (10-06-15)RESOLUTION NO. 2015.182 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD APPROVING AN EMPLOYMENT AGREEMENT WITH RAUL GODINEZ FOR THE POSITION OF DIRECTOR OF PUBLIC WORKS /CITY- ENGINEER 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 and 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 Public Works /City Engineer will be in charge of the administration of the City's Public Works Department and be Department Director of the Department; and WHEREAS, the City Manager has selected a candidate for the position of Director of Public Works /City Engineer and authorized the terms of employment to the Director of Public Works /City Engineer 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 Public Works /City Engineer Agreement on behalf of the City, subject to the City Attorney's approval of the form. Section 2. The Director of Public Works /City Engineer is authorized and directed to commence performance of the duties of the position upon the effective date of the agreement. Section 3. 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 6th day of October, 2015. A TEST: 01 A aria Quirionez, Ci y Clerk Luis Solache, APPROVED AS TO FORM: David A. Garcia, City Attorney APPROVED AS TO CONTENT: J. Arnoldo Beltran, City Manager [THIS SPACE INTENTIONALLY LEFT BLANK] 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 October, 2015. AYES: COUNCIL MEMBERS ALATORRE, SANTILLAN -BEAS AND SOLACHE NOES: NONE ABSENT: NONE ABSTAIN: NONE r � Maria Quinonez, ity Clerk 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. 2015.182 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 October, 2015. 3 THE CITY OF LYNWOOD PUBLIC WORKS DIRECTOR/CITY ENGINEER EMPLOYMENT AGREEMENT This at -will PUBLIC WORKS DIRECTOR/CITY ENGINEER EMPLOYMENT AGREEMENT ( "Agreement ") is effective the twelve (12) day of October 2015, between the CITY OF LYNWOOD, a general law city and municipal corporation ( "City ") and Raul Godinez, an individual ( "Public Works Director /City Engineer "). RECITALS WHEREAS, the City Council of the City ( "Council ") now desires to employ Raul Godinez in the at -will position of the Public Works Director /City Engineer for the City; WHEREAS, Public Works Director /City Engineer 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 Public Works Director /City Engineer's services to the City as described in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the City and Public Works Director /City Engineer hereby agree as follows: AEREEMENT 1.0 EMPLOYMENT & DUTIES 1.1 Duties. City hereby employs Public Works Director /City Engineer to serve as the City's Public Works Director /City Engineer, to perform the functions and duties of a Public Works Director /City Engineer as such duties are customarily performed by a person in such position, as specified in any position description for the Public Works Director /City Engineer, 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 the Public Works Director /City Engineer of the City, unless said duties are reassigned by the City Manager. 1.2 Work Schedule. The parties agree that Public Works Director /City Engineer shall engage in the hours of work that are necessary to fulfill the obligations of the position and must devote time in addition to the City's regular business hours to the business of the City. Public Works Director /City Engineer acknowledges that City Hall is open Mondays through Thursdays from 7:00 a.m. to 6:00 p.m. and is closed on Fridays, such that the City's standard work week is four (4) 10 -hour days. Notwithstanding the foregoing, Public Works Director /City Engineer will be permitted reasonable time off during the City's business hours upon proper approval and as permitted by accrued leave time, as is customary for exempt employees, so long as the time off does not interfere with the City's business. Page 1 of 19 1.3 Direction. The City shall retain full direction and control of the manner, means and methods by which Public Works Director /City Engineer performs the services for which he is employed hereunder and of the place or places at which such services shall be rendered. 1.4 Employment Status; At -Will. Public Works Director /City Engineer shall serve at the will and pleasure of the City Manager and understands he is an "at- will" employee subject to summary dismissal without any right of notice or hearing, including any so- called Skelly hearing. The City Manager may terminate the employment of Public Works Director /City Engineer at any time, with or without cause, as set forth in Section 3.2 below. The Parties acknowledge that, while Public Works Director /City Engineer is afforded the benefits described in Article 6.0, as those benefits are provided to other employees within the Lynwood Employees Management Bargaining Group ( "LEMG ") 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 from time to time, a copy of which is attached hereto as Exhibit "A," Public Works Director /City Engineer 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. 1.5 City Documents. All data, studies, reports, and other documents prepared by Public Works Director /City Engineer 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 Public Works Director /City Engineer in connection with the performance of this Agreement shall be held confidential by Public Works Director /City Engineer to the extent permitted by applicable law. Such materials shall not, without the prior written consent of the Council, be used by Public Works Director /City Engineer 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. 1.6 FLSA Exempt Status. Public Works Director /City Engineer agrees that his position is that of an exempt employee for the purposes of the Fair Labor Standards Act. 200 COMPENSATION AND REIMBURSEMENT 2.1 Compensation. For the services rendered pursuant to this Agreement, the City agrees to pay Public Works Director /City Engineer an annual salary of One Hundred Fifty -Three Thousand Five Hundred and 00 /100 Dollars ($153,500.00) ( "Salary "), which shall be paid on a bi- weekly basis at the same time that other employees of the City are paid. The Salary shall be adjusted for payroll taxes, workers' compensation, and other payroll- related liability costs. Public Works Director /City Engineer 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. Page 2 of 19 2.2 Annual Review. The City and Public Works Director /City Engineer agree to conduct a review concurrently with the annual performance evaluation set forth in Article 5.0, below. Public Works Director /City Engineer shall receive any Cost of Living Adjustment ( "COLA ") consistent with or provided to other LEMG members under the MOU. In addition, a merit increase up to five percent (5 %) of the Salary may be granted on the Employee's one year anniversary in 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 TER10�I 3.1 Commencement & Effective Date. Public Works Director /City Engineer shall commence his services hereunder at 7.00 a.m. Pacific time on the Monday October 12, 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 Public Works Director /City Engineer. Additionally, Public Works Director /City Engineer 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. Public Works Director /City Engineer expressly agrees that any termination of this Agreement initiated by Public Works Director /City Engineer shall not entitle Public Works Director /City Engineer to any severance pay; whereas, termination of this Agreement initiated by the City shall entitle Public Works Director /City Engineer, upon the effective date of such termination, to severance pay 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, and without weakening or changing the right of either party on notice to the other to terminate the employment relationship at will, the City may terminate Public Works Director /City Engineer's employment hereunder for specific cause for any one of the following reasons: Public Works Director /City Engineer's loss of legal capacity; personal dishonesty by Public Works Director /City Engineer in performing his duties hereunder; Public Works Director /City Engineer's acts of fraud or misrepresentation or any act of malfeasance or moral turpitude; Public Works Director /City Engineer's conflicts of interest or breach of fiduciary duty; gross negligence or incompetence in performing Public Works Director /City Engineer's duties; willful breach by Public Works Director /City Engineer of any provision of this Agreement; Public Works Director /City Engineer's insubordination or willful failure to follow City policies, procedures, rules, or regulations; Public Works Director /City Engineer's willful and serious misconduct; actions by Public Work Director /City Engineer that are seriously detrimental to the reputation of the City; or Public Works Director /City Engineer's conviction of a criminal offense. Page 3 of 19 The City may also terminate Public Works Director /City Engineer's employment under this Agreement for material performance deficiencies, other than those listed above, upon written notice to Public Works Director /City Engineer, specifying the nature of the performance deficiencies, and upon Public Works Director /City Engineer's failure to improve said deficiencies within thirty (30) days thereafter. Upon termination of Public Works Director /City Engineer's employment with the City, the City shall be under no further obligation to Public Works Director /City Engineer, except to pay all accrued but unpaid Salary and vested benefits through the date of termination. 3.4 Cooperation. After notice of termination, Public Works Director /City Engineer shall cooperate with the City, as requested by the City, to effect a transition of Public Works Director /City Engineer's responsibilities and to ensure that the City is aware of all matters being handled by Public Works Director /City Engineer. 4.0 SEVERANCE 4.1 Severance Pay. Except as provided in Section 3.3, should City elect to terminate this Agreement without cause, the City shall, upon the effective date of such termination, pay Public Works Director /City Engineer severance pay in a sum equal to six (6) 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 Public Works Director /City Engineer thereunder, City shall pay to Public Works Director /City Engineer the cash equivalent of all vacation leave then accrued. Such cash equivalent shall be calculated by dividing Public Works Director /City Engineer'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 this Article 4.0 shall constitute the sole and only entitlement of Public Works Director /City Engineer in the event of the termination, other than for cause, and Public Works Director /City Engineer 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 EVALUAI'I ®NS. 5.1 Purpose. The performance review and evaluation process set forth herein is intended to provide review and feedback to Public Works Director /City Engineer so as to facilitate a more effective management of City. Nothing herein shall be deemed to alter or change the at -will employment status of Public Works Director /City Engineer, nor shall this Article 5.0 be construed as requiring "cause" to terminate this Agreement or the services of Public Works Director /City Engineer thereunder. Page 4 of 19 5.2 Six Month Evaluation. The City Manager may review and evaluate the performance of Public Works Director /City Engineer within six (6) months after the commencement of this Agreement. The City Manager may consider Public Works Director /City Engineer'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 Public Works Director /City Engineer annually, within thirty (30) days after each anniversary date. In addition, Public Works Director /City Engineer shall submit for City Manager's consideration at those times established by the City Manager, but at least annually, Public Works Director /City Engineer's proposed performance goals and objectives and incorporate the City Manager's suggestions. Such review and evaluation shall be conducted concurrently with an annual 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 her responsibility to pay and not covered by the City. 6.2 Electronic Media Allowance. In accordance with the MOU, as may be amended from time to time, the City shall provide Public Works Director /City Engineer a monthly allowance for electronic media consistent with the allowance paid to LEMG members ( "Electronic Media Allowance "), which as of the date of this Agreement is One Hundred Twenty Five and 00 /100 Dollars ($125.00) per month. The Electronic Media Allowance shall be full compensation for the cost associated with the purchase and use of electronic media to be used for City - related business, and shall be paid to Public Works Director /City Engineer through payroll, with applicable taxes and other payroll - liability costs deducted. Public Works Director /City Engineer understands that any applicable taxes are his responsibility to pay and not covered by the City. 6.3 Bilingual Pay. In accordance with the MOU, as may be amended from time to time, the City shall provide Public Works Director /City Engineer bilingual pay for his proficiency in another language (Spanish) consistent with the pay paid to LEMG members ( "Bilingual Pay "), which as of the date of this Agreement is One Hundred Twenty Five and 00 /100 Dollars ($125.00) per month. The Bilingual Pay shall be paid upon passing a verbal bilingual exam to the satisfaction of the Human Resources Department, and shall be paid to Public Works Director /City Engineer through payroll, with applicable taxes and other payroll - liability costs deducted. Public Works Director /City Engineer understands that any applicable taxes are his responsibility to pay and not covered by the City. Page 5 of 19 6.4 Medical Dental Vision and Life Insurance. City shall provide to Public Works Director /City Engineer the same group medical, dental, vision, and life insurance plans and /or programs as are offered to LEMG members in accordance with the MOU. The City's contribution on behalf of Public Works Director /City Engineer 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 Public Works Director /City Engineer and his eligible dependents according to the MOU. The City shall provide and pay for a life insurance policy for Public Works Director /City Engineer in the amount of Fifty Thousand and 00 /100 Dollars ($50,000.00). 6.5 PERS. In accordance with the MOU, the City shall pay Zero (0 %) (of 8 %) of Public Works Director /City Engineer's share of all required retirement contributions to the California Public Employees' Retirement System ( "PERS "). The City will also afford Public Works Director /City Engineer the retirement benefit commonly referred to as "3% at 60." 6.6 Vacation Personal and Sick Leave. In accordance with the applicable and current LEMG MOU, and subject to vacation, personal and sick leave accruals as outlined in the Management Benefit Plan, Public Works Director /City Engineer 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. Public Works Director /City Engineer'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. 6.7 Holidays. In accordance with the MOU, Public Works Director /City Engineer shall be entitled to nine (9) 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. 6.8 Executive Leave. In accordance with the MOU, Public Works Director /City Engineer shall accrue executive leave at the rate of ninety (90) hours per year. Executive leave shall not carry over from year -to -year. The aforementioned leave benefits shall be subject to adjustment as may be revised by the MOU. 6.9 Additional Benefits. In addition to the benefits set forth in this Agreement, Public Works Director /City Engineer shall receive the benefits provided by the City to LEMG members under the MOU, excluding any License and Certificate Incentive Pay. To the extent benefits provided under this Agreement are similar to those provided to the LEMG members under the MOU, Public Works Director /City Engineer shall receive only those benefits provided under this Agreement, and not both. 7.0 PROFESSIONAL DEVELOPMENT 7.1 Membership. The City encourages Public Works Director /City Engineer's continued professional development and membership and shall provide payment of appropriate related costs for such activities, as approved by the City Manager. Page 6of19 7.2 Out -of -Town Meetings & Seminars. The City agrees to reimburse Public Works Director /City Engineer the actual cost for registration, travel, lodging, meals, and other reasonable expenses incurred by Public Works Director /City Engineer while attending overnight out -of -town meetings or seminars related to his employment with the City, 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, Public Works Director /City Engineer must have budgeted funds available for same. 7.3 Local Meetings & Seminars. The City agrees to reimburse Public Works Director /City Engineer the actual cost of registration, meals, and other reasonable expenses necessarily incurred while in attendance at local meetings or seminars related to his employment with the City in accordance with the City's policies for expense reimbursement. 7.4 Incidental Expenses. The City agrees to reimburse Public Works Director /City Engineer the actual cost of those incidental expenses necessarily incurred by Public Works Director /City Engineer while engaged in the business of the 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, Public Works Director /City Engineer shall obtain advance approval of the City Manager. 8.0 INDEMNIFICATION 8.1 Indemnification. For the purposes of indemnification and defense of legal actions, Public Works Director /City Engineer 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 Public Works Director /City Engineer 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 Public Works Director /City Engineer's services under this Agreement. This section shall not apply to any intentional tort or crime committed by Public Works Director /City Engineer, to any action outside the course and scope of the services provided by Public Works Director /City Engineer under this Agreement, or any other intentional or malicious conduct or gross negligence of Public Works Director /City Engineer. 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 Public Works Director /City Engineer's employment by the 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. Page 7 of 19 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: City Manager City of Lynwood 11330 Bullis Road Lynwood, California 90262 To Public Works Director /City Engineer: At his home address on file with the City 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, Public Works Director /City Engineer 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 Public Works Director /City Engineer's duties under this Agreement. Public Works Director /City Engineer 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 Public Works Director /City Engineer may not conduct, participate in, or otherwise be in engaged in independent consulting projects. 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. The City and Public Works Director /City Engineer 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 the City and Public Works Director /City Engineer 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. Page 8 of 19 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 `B" 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 her office or position. Page 9of19 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 Public Works Director /City Engineer has signed and executed this Agreement, all in triplicate. ATTEST:. APPROVED AS TO FORM: � V'// X GA"-/ David A. Garcia, City Attorney ,M. Saint, erector of Resources 84 Risk Management CITY OF LYNWOOD: l 'r J. Arnoldo Beltran, City Manager PUBLIC WORKS DIRECTOR/CITY ENGINEER: r Raul Godinez Page 10 of 19 EXHIBIT A COMPREHENSIVE MEMORANDUM OF UNDERSTANDING FOR SUBMISSION TO THE LYNWOOD CITY COUNCIL REGARDING LYNWOOD EMPLOYEES MANAGEMENT GROUP JULY 1, 2015. TO JUNE 30, 2016 [See attached] Pagel l of 19 ATTACHMENT B AGREEMENT OF SEPARATION. SEVERANCE AND GENERAL RELEASE 1. PARTIES This Agreement of Separation, Severance and General Release (hereinafter referred to as the "AGREEMENT ") is entered into by and between the City of Lynwood (hereinafter referred to as "THE CITY "), a general law city and municipal corporation, and (hereinafter referred to as "EMPLOYEE "). 2. RECITALS 2.1. EMPLOYEE was hired by THE CITY as an at will Public Works Director /City Engineer,. effective , serving at the pleasure of the City Council of THE CITY pursuant to a written contract, a copy of which is attached hereto as Exhibit "A" ( "THE CONTRACT "). EMPLOYEE is currently years old. 2.2. THE CITY and EMPLOYEE desire that EMPLOYEE resign and enter into a severance agreement' whereby EMPLOYEE receives severance compensation in exchange for executing a general release and waiver of any and all claims that EMPLOYEE may have against THE CITY, including but not limited to its elected and non - elected officials, employees, attorneys, and agents. Accordingly, the parties hereto intend by this AGREEMENT to mutually conclude any and all employment relationships between THE CITY and EMPLOYEE by means of EMPLOYEE's voluntary separation as of , with this AGREEMENT setting forth the full and complete terms and conditions concluding EMPLOYEE's employment relationship with the CITY and any obligations related thereto, including any provided under THE CONTRACT. 2.3 In accordance with this AGREEMENT and with applicable state and federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post employment rights, including but not limited to, EMPLOYEE's rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 ( "COBRA "), the Employee Retirement Income Security Act of 1974 ( "ERISA "), and the Health Insurance Portability and Accountability Act of 1996 ( "HIPAA "). 3. CONSIDERATION 3.1 EMPLOYEE shall receive payment to him at the time of his voluntary separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or all other wage compensation/benefits owed to EMPLOYEE upon separation of employment as required by law or THE CONTRACT or any other agreement with THE CITY. Page 12 of 19 3.2. In exchange for the waivers and releases set forth herein, THE CITY shall also cause to be paid to EMPLOYEE an additional compensatory payment by means of severance, settlement and release in the form of a lump sum amount of and cents ($ .00) in the form of a check made payable to EMPLOYEE to be mailed to EMPLOYEE at EMPLOYEE's home address via certified mail return receipt requested within thirty (3 0) business days after the EFFECTIVE DATE (as defined below) of this AGREEMENT. 3.3 In exchange for the severance payment provided for herein, EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and each of them (hereinafter referred to as "THE CITY PARTIES "), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at anytime from the beginning of time up to and including (hereinafter referred to collectively as "CLAIMS "), without regard to whether such CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims based upon any alleged breach of THE CONTRACT or any other agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach .of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act, or any claim or cause of action including, but not limited to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code § §12, 900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human rights, civil rights, or employment discrimination or employee rights statute, rule, or regulation. Page 13 of 19 4. Specific Acknowledement of Waiver of Claims under ADEA and OWBPA The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA ") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual's employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referredto as the " OWBPA," 29 U.S.C. § 626, et. seq., Pub L 101 - 433,104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this AGREEMENT, EMPLOYEE acknowledges that he knowingly and voluntarily, for just compensation in addition to anything of value to which EMPLOYEE was already entitled, waives and releases any rights he may have under the ADEA and /or OWBPA. EMPLOYEE further acknowledges that he has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: (a) This waiver /release is written in a manner understood by EMPLOYEE; (b) EMPLOYEE is aware of, and /or has been advised of, his rights under the ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently may have under the ADEA, OWBPA and /or similar age discrimination laws; (c) EMPLOYEE is entitled to a reasonable time of at least twenty -one (21) days within which to review and consider this AGREEMENT and the waiver and release of any rights he may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of his own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty -one (21) days; (d) The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE of this AGREEMENT; (e) EMPLOYEE has been advised by this writing that he should consult with an attorney prior to executing this AGREEMENT; (f) EMPLOYEE has discussed this waiver and release with, and been advised with respect thereto by, his counsel of choice, and that he does not need any additional time within which to review and consider this AGREEMENT; (g) EMPLOYEE has seven (7) days following his execution of this AGREEMENT to revoke the AGREEMENT; (h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby revoke my acceptance of our Agreement of Severance and General Release;" and (i) This AGREEMENT shall not be effective until all parties have signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution ( "EFFECTIVE DATE "). Page 14 of 19 5. UNKNOWN CLAIMS In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE understands that California Civil Code section 1542 reads as follows: "General Release — Claims Extinguished" "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." EMPLOYEE hereby waives the protection of California Civil Code section 1542. 6. WAIVER OF ADDITIONAL CLAIMS EMPLOYEE hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above. 7. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each other party as follows: 7.1. Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of this AGREEMENT and of its legal effect. 7.2. No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other party in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT. 7.3. Independent Investigation: _ Each party to this AGREEMENT has made such investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters pertaining thereto, as it deems necessary. 7.4. Mistake Waived: In entering into this AGREEMENT, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such Page 15 of 19 parry shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever. 7.5. Later Discovery: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that EMPLOYEE fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees that he shall be exclusively liable for the payment of all taxes for which he is responsible, if any, as a result of his receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT. 7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this AGREEMENT. EMPLOYEE shall provide THE CITY with consultation services (including deposition or trial testimony) in any litigation involving THE CITY which is reasonably related to acts or occurrences transpiring during his employment. Said services shall be provided as needed by THE CITY at a rate of $100.00 per hour. 7.8. Return of Confidential Information and Property: Prior to the separation date, EMPLOYEE shall submit a written inventory of, and return to the City Clerk, all City keys, equipment, computer identification cards or codes, and other equipment or materials or confidential documents provided to or obtained by EMPLOYEE during the course of his employment with THE CITY. 7.9 No Pending Claims and /or Actions: EMPLOYEE represents that he has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or federal agency or court; that he will not do so at any time hereafter for any claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where ever filed, he will request such agency or court to withdraw from the matter forthwith. Page 16 of 19 7.10. Ownership of Claims: EMPLOYEE represents and warrants as a material term of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE further warrants and represents that none of the CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and /or entity. 7.11 Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 7.12 Authori : Each party represents to the other that it has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT to which they are a party or by which they are bound by entering into this AGREEMENT. The parties represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed. 8. MISCELLANEOUS 8.1. No Admission: Nothing contained herein shall be construed as an admission by THE CITY of any liability of any kind. THE CITY denies any liability in connection with any claim and intends hereby solely to avoid potential claims and/or litigation and buy its peace. 8.2. Governing_ This AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 8.3. Full Integration: tion: This AGREEMENT is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This AGREEMENT may be amended only by a further agreement in writing, signed by the parties hereto. 8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest. 8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the parties agree that same shall not be construed against any party. 8.6. Severability: In the event that any term, covenant, condition, provision or agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement and the remainder of this AGREEMENT shall still be in full force and effect. Page 17 of 19 8.7. Titles: The titles included in this AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT. 8.8. Counterparts: This AGREEMENT may be executed in counterparts, and when each parry has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective as to all parties. 8.9. Notice: Any and all notices given to any party under this AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: At EMPLOYEE's home address on file with THE CITY. As to THE CITY: David A. Garcia, Esquire, Tafoya & Garcia, LLP 316 N. 2nd Street, Ste., 1000 Los Angeles, CA 90012 With a copy to: City of Lynwood Attn: City Manager 11330 Bullis Road Lynwood, CA 90262 IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has signed and executed this Agreement, and the attorneys for THE CITY and EMPLOYEE, if any, have approved as to form as of the dates written below. DATED: EMPLOYEE so Page 18 of 19 THE CITY DATED: By: ATTEST: Maria Quinones, City Clerk APPROVED AS TO FORM: Tafoya & Garcia, LLP IIN David A. Garcia, City Attorney [EMPLOYEE'S LAW FIRM] Los [Counsel] Jose Luis Solache, Mayor Page 19 of 19 COMPREHENSIVE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF LYNWOOD AND THE LYNWOOD EMPLOYEES MANAGEMENT GROUP July 1, 2015 — June 30, 2016 006170.00002 13300661.1 Table of Contents ARTICLE1 IMPLEMENTATION ......................................... :............................. 1 ARTICLE 2 EMPLOYEE RECOGNITION ...................... ........... ,.................. ........ 1 ARTICLE3 CITY RIGHTS .....: ....................:...................... .................a............. 4 ARTICLE 4 ASSOCIATION RIGHTS ................................. ............................... 4 ARTICLE 5 STEP INCREASES.... .............:. ••••••••••••• 5 ARTICLE 6 SALARIES/WAGES /DUES DEDUCTIONS .... ............................. ... 6 ARTICLE 7 EXECUTIVE LEAVE ... ............................... .. ........:.................. 8 ARTICLE8 AUTO ALLOWANCES ....................:...:........... ......................:.:...... 9 ARTICLE 9 BILINGUAL PAY .................................::...•..:..: ............................... 9 ARTICLE 10 PROJECT COORDINATOR PAY ..........:...... ............................... 9 ARTICLE 11 TOOL ALLOWANCE ...................................... .............................10 ARTICLE 12 UNIFORM AND CLOTHING ALLOWANCE ... .............................10 ARTICLE 13 MILEAGE REIMBURSEMENT ....................... .............................10 ARTICLE 14 EDUCATION INCENTIVE PAY /TUITION REIMBURSEMENT ...11 ARTICLE 15 LONGEVITY PROGRAM ......................................... , •••••••• •••••• •••12 ARTICLE 16 EMPLOYEE'S INSURANCE COVERAGE ..... .............................13 ARTICLE 17 SICK LEAVE POLICY ............:......................... ...,,........,...............15 ARTICLE18 HOLIDAYS ...................... . ............. .. ........ .. ........... ..16 ARTICLE 19 ACTING SUPERVISORY COMPENSATION .. .................. ::....:...:18 ARTICLE 20 RETIREMENT POLICY .................:................. ...............:...•.•.••....19 ARTICLE 21 LEAVE BENEFIT ACCRUAL RATES ................................. ,......,.19 ARTICLE 22 NON — DISCRIMINATION ..... .............. ................. 20 ARTICLE 23 ANNUAL VACATION LEAVE .......................:. :...........:................20 006170.00002 13300661.1 ARTICLE24 MILITARY LEAVE ........ .................................... .............................22 ARTICLE 25 FAMILY CARE AND MEDICAL LEAVE POLICY .....................:...22 ARTICLE26 HOURS OF WORK ........................................ .....................:.......29 ARTICLE27 ATTENDANCE ......................... ............. :.:...:... ......:....................:.29 ARTICLE 28 GRIEVANCE AND DISCIPLINARY APPEAL PROCEDURE..,....29 ARTICLE 29 BEREAVEMENT LEAVE......... ...................,..... ....... .......................32 ARTICLE 30 EMERGENCY LEAVE............ .....................:... .......:.....................32 ARTICLE31 JURY DUTY ......:.........:.........................:......:.. . :,:.:...........:...........32 ARTICLE 32 SERVICE DISABILITY :................................... ........,:,:....,...,:.......32 ARTICLE33 NO STRIKE ...................................................... ........._...............:...34 ARTICLE 34 FULL FAITH AND CREDIT CLAUSE ............ ... ........... ..................... 34 ARTICLE 35 SAVINGS CLAUSE ...................... ............................... ....35 ARTICLE 36 AUTHORIZED AGENTS .................................. .............................35 ARTICLE37 LAYOFF ................................................,.......... .........:....... .............35 ARTICLE 38 LEAVE OF ABSENCE .................................... .......................:.....37 ARTICLE 39 FULL UNDERSTANDING, MODIFICATIONS WAIVER .............. 38 ARTICLE 40 RENEGOTIATION ........................................... .............................38 ARTICLE 41 TERM.-...,.. ......................... 38 006170.00002 13300661.1 ARTICLE 1 IMPLEMENTATION The wages, hours, and other terms and conditions of employment set forth in this Memorandum of Understanding ( "MOU ") have been discussed and jointly proposed by and between the City of Lynwood ( "City "), by and through the City's Municipal Employee Relations Officer, and representatives of the Lynwood Employees Management Group (hereinafter "Group "), and shall apply to all employees of the City working in the classifications as set forth herein. The wages, hours, and other terms and conditions of employment set forth in this MOU have been discussed in good faith between the City and Group, and the Municipal Employee Relations Officer agrees to recommend to the Lynwood City Council that all of the wages, hours, and other terms and conditions of employment as set forth herein be incorporated in full in a resolution of the City Council or, where appropriate, in a policy statement. Upon the adoption of such a resolution and /or policy statement, all wages, hours, and other terms and conditions of employment set forth in this MOU so incorporated, shall become effective as provided without any further action by either party. ARTICLE 2 EMPLOYEE RECOGNITION A. The City hereby continues to recognize the Lynwood Employee Management Group ( "Group ") as the recognized employee organization for all professional and management positions to the fullest extent allowable under California law applying to public employees and as further defined in Resolution No. 2002.103, adopted by the Lynwood City Council on July 16, 2002. The Group is the recognized bargaining agent for the management and professional employee unit ( "Unit "). B. The Meyers - Milias -Brown Act ( "MMBA ") does not define either "confidential" or "management" employee, and Government Code section 3507.5 authorizes each local agency to adopt procedures for determining which of its employees will be designated confidential or managerial. The MMBA, however, does not exclude management and confidential employees from the definition of employees entitled to the organizational and representation rights of the Act. Resolution No. 2002.103 defines a "confidential employee" as "an employee who, in the course of his or her duties, has access to information relating to the City's administration of employer - employee relations. It defines a "management supervisory employee" as "an employee having responsibility for formulating, administering, or managing the implementation of City policies or programs." While employees designated as "confidential" employees may be represented by the Group, the parties acknowledge and agree that such designated employees may not represent the Group or the Unit, participate in the bargaining process, or share , any confidential information in 006170.00002 LEMG MOU FY 2013 -2015 13300661.1 connection with labor relations that would undermine the respective roles of each party in the bargaining process. C. It is acknowledged and agreed that the following positions are expressly excluded from the management and professional employee unit and from representation by the Group and from coverage under this MOU: All elected officials, the City Manager, the Assistant City Manager,. all "At- Will" Department Directors, the Assistant to the City Manager, and the Senior Human Resources Analyst. D. It is acknowledged and agreed that the following positions are within the represented Unit but shall be designated as "confidential ": Administrative Analyst II (Finance), Administrative Analyst, III (Finance), Accounting & Auditing Supervisor, Director of Development Services, Director of Recreation and Community Services, Finance Manager (formerly Deputy Director of Finance), Financial Analyst, Information Systems Manager, Information Systems Analyst, Personnel Analyst II, Personnel Analyst III, Purchasing Manager, and Senior Internal Auditor. E: It is acknowledged and agreed that the positions listed below are expressly covered by this MOU. Any and all future management and /or professional positions below the level of Director created during the term of this MOU shall be added to the list below and considered part of the management and professional employee unit represented by the Group in accordance with the express provisions of Resolution No. 2002.103 governing the creation of new job positions and /or classifications. LIST OF REPRESENTED MANAGEMENT AND PROFESSIONAL POSITIONS * = Confidential += Management Employee * Accounting and Auditing Supervisor * Administrative Analyst II * Administrative Analyst III Billing and Collections Supervisor Capital Improvement Projects Manager Code Enforcement Manager Community Development Associate Deputy Director of Administrative Services Deputy Director of Recreation and Community Services Development Services Manager * + Director of Development Services 2 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 * + Director of Recreation and Community Services Electrical Maintenance Supervisor Events Coordinator • Financial Analyst • Finance Manager * Information Systems Manager Parking Control Manager Park Superintendent • Personnel Analyst II • Personnel Analyst III Planning Associate Public Works Associate Public Works Special Projects Manager Recreation Facility and Program Supervisor Recreation Superintendent II * Risk Analyst Senior Administrative Analyst Senior Public Works Manager Senior and Social Services Manager (Special Projects Manager) Street Maintenance Supervisor Senior Planner Utility Services Manager The City shall leave the following four (4) positions vacant and unfilled until January 1, 2016: 1. Accounting and Auditing Supervisor 2. Risk Analyst 3. Park Superintendent 4. Recreation Facility and Program Supervisor 3 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 3 CITY RIGHTS A. It is understood and agreed that the City retains all of its powers and authority to direct, manage, and control its operations to the full extent of the law. Said powers and authority include, but are not limited to, the exclusive right to: determine its organization; direct the work of its employees; determine the times of operation; determine the kinds and levels of services to be provided and the methods and means of providing them; establish its policies, goals, and objectives; determine staffing patterns; determine the number and kinds of personnel required; maintain the efficiency of City operations; build, move, modify, or close facilities; establish budget procedures and determine budgetary allocations; determine the methods of raising revenue; contract out work; and take action on matters in the event of emergency. In addition, the City retains the right to hire, classify, assign, evaluate, transfer, promote, terminate, and discipline employees. B. In case of emergency, the City retains its right to amend, modify, or rescind provisions of this MOU. Such amendment, modification, or rescission shall remain in force only for the period of the emergency. The determination of whether or not an emergency exists is solely within the discretion of the City Council. ARTICLE 4 ASSOCIATION RIGHTS The Group has the right to conduct Group business as follows: A. The right to use City facilities to hold official scheduled meetings regarding Group business and the right to use City equipment, including telephones and photocopiers for reasonable Group purposes in an amount not to exceed $50.00 per month. If the amount exceeds the $50.00 limit, then the Group shall reimburse the City for such costs, including copy charges of 3 cents and 5 cents per page for letter or legal size copies, respectively, and 8 cents and 15 cents for color copies of same. Reasonable Group purposes and /or business shall not include administrative claims or proceedings, civil proceedings, political activities, campaigning, or any decertification or representation disputes with any other employee organization. B. The right to post information concerning elections, benefits, notices, reports, programs, and promotions. (Bulletin Board). 4 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 C. The right to notice by the City of new employees in the Unit. Such notice shall include name, home address, home phone number, classification, work hours, department, starting salary, and work location. D. The Human Resources Department shall distribute informational materials provided by the Group to new employees, and 15 minutes will be set aside for the employee to meet with a representative of the Group during the in- processing orientation. Any additional meetings between new hires and Group Shop Stewards shall be outside normal business hours. E. The right to designate authorized representatives who shall have access to work locations and employees, subject to Department Head approval, when such access does not unduly interfere with departmental operations and is in the course of grievance resolution. The Group may designate one Shop Steward per department. The appropriate steward shall request in writing and shall be allowed reasonable time off during duty hours for this purpose, provided the time requested does not substantially impact departmental operations. In the event the Steward cannot be released as requested, the supervisor shall provide an alternate time within the next forty -eight (48) hours. In the event that an alternate time is provided, all time limits in the grievance procedure shall be extended for an amount of time equal to the delay. Stewards shall be designated in advance by written notice from the Group to the Human Resources Director and the Steward's Departmental Director. F. The Group shall be allowed the use of the City's intranet for purposes of Group related communications. G. The Group shall be entitled to hold four (4) one -hour meetings annually or one per quarter during duty hours. These meetings will be held from 5:00 — 6:00 p.m. and all, as reasonably possible, Group represented employees shall be released from work in order to attend. ARTICLE 5 STEPINCREASES Employees are eligible for a step increase upon successful completion of probation and thereafter will be considered on the basis of merit after intervals of one (1) year. 5 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 Section 1., Any employee hired or promoted to Step A of a different range of pay shall receive the Step B salary at the successful completion of the probationary period. Increases to Step C, D, and E within any pay range shall be based on satisfactory job performance by the individual and shall be reviewed at least at the following time intervals: Step C - One (1) year after the Step B increase Step D - One (1) year after the Step C increase Step E - One (1) year after the Step D increase Section 2. Employees hired or promoted to any step above Step A shall receive the next step at the successful completion of the probationary period. Other increases within the range shall be followed in the method described in Section 1. Section 3. New employees, as well as current employees accepting another position within the bargaining Unit, shall be appointed at the first step of the salary range to which their class is assigned, except that when the education and previous training or experience of a proposed employee are substantially superior to those required of the class and justify a beginning salary in excess of such minimum compensation. Upon recommendation of the Department Head, the City Manager may authorize an appointment to this position at any higher step. The Department Head shall submit his /her recommendation to the City Manager in such form, together with such information as the City Manager may require. The provisions of this Article do not apply to those hired or employed on a part- time basis. ARTICLE 6 SALARIESmAGES/DUES DEDUCTIONS Section 1. Salary Adjustments. Except as provided by other Articles set forth in this MOU, the parties agree that there will be no salary adjustments or cost of living adjustments provided to employees covered by this MOU during the stated term of this 2015 -2016 MOU. Section 2. Mandatory Direct Deposit. All Group represented employees shall be on electronic direct payroll deposit. Section 3. Dues Deduction. The City agrees to allow voluntary Group dues deduction from each Group member's first and second paycheck of each month and remit to the Group all such monies as are authorized in writing by the employees using dues deduction authorization forms similar to those already in 6 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 place for other employee organizations in the City or as otherwise mutually negotiated. The Group shall have a duty to defend and shall indemnify and hold harmless the City against any liability arising from a claim, demand, or other action relating to this provision or the obligations hereunder. The City reserves the right to select its own counsel for its defense hereunder at the Group's expense. Section 4. A-gency Shop Agreement. The City and the Group have negotiated an agency shop agreement for all Group represented non - management employees pursuant to Government. Code Section 3502.5 as follows: A. As used in this MOU, "agency shop" means an arrangement that requires an employee, as a condition of continued employment, either to join the Group as the recognized employee organization or to pay the Group a service fee in an amount not to exceed the standard initiation fee, periodic dues, and general assessments of the Group. B. An employee who is a member of a bona fide religion, body, or sect that has historically held conscientious objections to joining or financially supporting public employee organizations shall not be required to join or financially support the Group as a condition of employment. The employee may be required, in lieu of periodic dues, initiation fees, or agency shop fees, to pay sums equal to the dues, initiation fees, or agency shop fees to a nonreligious, nonlabor charitable fund exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, chosen by the employee. Proof of the payments shall be made by the employee to the City on a monthly basis as a condition of continued exemption from the requirement of financial support to the Group. C. The Group shall keep an adequate itemized record of its financial transactions and shall make available annually, to the City, and to the employees who are members of the Group, within 60 days after the end of its fiscal year, a detailed written financial report thereof in the form of a balance sheet and an operating statement, certified as to accuracy by its president and treasurer or corresponding principal officer, or by a certified public accountant. An employee organization required to file financial reports under the federal Labor - Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 401 et seq.) covering employees governed by this chapter, or required to file financial reports under Government Code Section 3546.5, may satisfy the financial reporting requirement of this section by providing the City with a copy of the financial reports. D. The City agrees to have agency shop dues deducted from each Group member's first and second paycheck of each month and remit 7 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 to the Group all; such monies as are authorized in writing by the employees using dues deduction authorization forms similar to those already in place for other employee organizations in the City or as otherwise mutually negotiated. E. The Group shall have a duty to defend and shall indemnify and hold harmless the City against any liability arising from a claim, demand, or other action relating to dues deduction, agency shop, or any provision or obligation set forth in this Section. The City reserves the right to select its own counsel for its defense hereunder at the Group's expense. ARTICLE 7 EXECUTIVE LEAVE It is agreed that management employees who are assigned to regularly attend City Council, Commission, or Board meetings shall be granted ninety (90) hours Executive Leave annually. All other management staff shall receive seventy (70) hours annually. Except as expressly limited herein, executive leave may be taken at any time after the first of the calendar year with the approval of the .employee's Department Head and /or the City Manager. Executive Leave may not be accrued beyond the present calendar year. Unused Executive Leave at the end of a calendar year (December 31) or upon leaving employment will be lost. Any overuse of Executive Leave shall be repaid in full to the City upon termination of City employment. A Personnel Status Report form will be required for approval of the ninety (90) hours of Executive Leave. 8 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 8 AUTO ALLOWANCES Automobile allowances are provided either at $500.00 or $300.00 per month as determined by the City Manager. Employees who drive on the job and do not receive an auto allowance shall instead receive mileage reimbursement, per Internal Revenue Service standard (currently 56.5 cents per mile) for the duration of this MOU. ARTICLE 9 BILINGUAL PAY The City Manager may grant compensation to full -time employees who have passed their initial probationary period for using bilingual skills in the course of work, provided that such employees use bilingual skills at least twenty percent (20 %) of their working time for either written or oral communication. Employees required to use bilingual skills in the course of their work may request bilingual pay by submitting written justification approved by their Department Head to the City Manager. Those employees approved by the City Manager for bilingual pay shall be required to pass a language proficiency examination. Bilingual pay shall be one hundred twenty -five dollars ($125.00) per month paid on a biweekly basis, effective the first full pay period after the first of the month following the submission of a Personnel Status Report form with proper approval. ARTICLE 10 PROJECT COORDINATOR PAY Upon recommendation of the respective Department Head, eligibility verification by the Human Resources Director, and approval by the City Manager, employees are eligible for Project Coordinator Pay in increments of one hundred dollars ($100.00) up to a maximum of five hundred dollars ($500.00) per month. Project Coordinator Pay is intended for performing duties on a project basis outside an employee's job classification and- is limited to a twelve (12) month (one year) period unless otherwise approved by the City Manager or his /her designee. Any employee receiving Acting Duty Pay or Additional Duties Pay for performing duties outside the employee's classification shall not be eligible for Project Coordinator Pay for performing those same duties for which they are already being compensated. 7 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 11 TOOL ALLOWANCE The Equipment Repair Supervisor shall receive an allowance for furnishing and using his /her own tools. The allowance is payable annually in June through payroll. The amount of payment will be calculated at the rate of forty dollars ($40.00) per full month of employment during the previous twelve (12) month period. If the employee leaves City service prior to the June payment date, the amount of tool allowance payment will be as accrued with appropriate documentation initiated by the department prior to termination of City employment. ARTICLE 12 UNIFORM AND CLOTHING ALLOWANCE The City will furnish Public Works Department management employees, whose duties require wearing uniforms, three (3) uniform changes per week plus one (1) additional laundered shirt per week. Effective the first payday in December of 2004, position titles identified below that are required to wear OSHA safety boots /shoes shall receive seventy -five dollars ($75.00) as a uniform allowance annually: • Building Maintenance Supervisor • Park Superintendent • Street Maintenance Supervisor • Equipment Repair Supervisor • Building and Safety Manager • Electrical Maintenance Supervisor The allowance is taxable and will be included within the employee's paycheck. ARTICLE 13 MILEAGE REIMBURSEMENT With the approval of the employee's Department Head and the City Manager, the City will reimburse those management employees who do not receive an Auto Allowance and who are required to use their personal vehicles for the purpose of conducting City business at the rate contained in the current Internal Revenue Service code book (currently 56.5 cents per mile). Employees receiving monthly automobile allowances are not eligible for mileage reimbursement. Employees must document the date, destination, and beginning and ending odometer reading from their vehicles in supporting the request. Said information must be logged on a Mileage Claim Form when requesting payment. 10 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 14 INCENTIVE PAY/TUITI To encourage employees in undertaking outside study to the end that they may perform their duties in a more efficient manner, a system of education pay, over and above established pay schedules, is hereby established. Section 1. Education Incentive Pay Education incentive pay is allowable for completed courses of approved subjects at accredited schools, and is fixed at one dollar ($1.00) per month for each semester unit of credit satisfactorily completed by the employee with a grade of "C" or better. A quarter unit is the equivalent of a semester unit and is also compensated at one dollar ($1.00) per month. Maximum pay is fixed at one hundred fifty dollars ($150.00) per month. All courses of study must have prior approval by the employee's Department Head and the City Manager in order to receive education incentive pay. Accredited schools are herein defined as accredited colleges, junior colleges, universities or other schools providing college credits that are accredited by nationally recognized accrediting agencies, as determined by the U.S. Secretary of Education. Suitable written certification from the school or granting agency showing satisfactory completion of each course or program shall be submitted to Human Resources for inclusion in employee personnel records. Education incentive pay shall commence during the first full pay period in the month following the submission of written certification. Bachelor's /Master's Degree Pay Certain positions within the Group do not require degrees of higher education. The City may pay employees one hundred fifty dollars ($150.00) per month who have graduated and received a bachelor of arts or bachelor of science degree from an accredited college or university, or the City will pay employees two hundred dollars ($200.00) per month who obtain a master's degree from an accredited college or university Compensation under this section only applies to those employees whose positions do not require a bachelor's or master's degree as set forth in the City's official job description(s). In order to qualify for compensation under this section, employees must submit a request for compensation, submit proof of the degree obtained, and receive approval by the City Manager. 11 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 Section 2. Tuition Reimbursement Program The City will contribute one hundred percent (100 %) of the cost of tuition fees for such courses, up to one thousand five hundred dollars ($1,500.00) per semester or quarter course, while the employee is accruing the one hundred fifty dollars ($150.00) per month maximum education incentive pay (as .described above). The maximum City contribution to the cost of tuition and books is three thousand dollars ($3,000.00) annually per employee. Tuition Reimbursement Program guidelines are available through the Human Resources Division. The provisions of this section do not apply to employees undertaking an approved course during a regular workday or assigned shift. Section 3. Certificate Pay Program The City will pay up to three hundred dollars ($300.00) per month Certificate Incentive Pay upon certification as a Certified Energy Manager or Leadership in Environment and Energy Design (LEED). An employee covered by this MOU may not receive Certificate Incentive Pay for more than one of these certificates at a time. The City has eliminated the Certified Green Building Professional (CGBP) Certificate Pay and Corresponding Pay of $300.00 per month unless 1) employees can individually demonstrate that the certificate is necessary to the performance of their duties, and 2) the City Manager agrees to the continuation of this previously contracted benefit for that employee. ARTICLE 15 LONGEVITY PROGRAM Section 1. Effective 7 -1 -88, longevity pay was adopted as follows: One percent (1 %) of base salary at the end of seven (7) years of service; an additional one percent (1%) of base salary at the end of twelve (12) years of service; and an additional one percent (1%) of base salary at the end of seventeen (17) years of service; and an additional three hundred dollars ($300.00) annually paid on a biweekly payroll basis after completion of twenty -five (25) years of service. Section 2. Effective 1 -1 -89, longevity pay was modified as follows: The same as above with deleting three hundred dollar ($300.00) annually paid for twenty -five (25) years of service and inserting two percent (2 %) of base salary at twenty -two (22) years of service. 12 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 The additional percent(s) to base salary shall be paid on normally assigned positions and not temporary or special assignments. ARTICLE 16 EMPLOYEE'S INSURANCE COVERAGE Health Effective January 1, 2009, the City shall contribute toward any CalPERS health insurance plan selected by full time Group represented employees, up to the CaIPERS established Kaiser -Los Angeles County family rate. The employee must pay any remaining premium for dependent coverage through payroll deduction. For employees hired on or after January 1, 2012, the City "capped" City paid health insurance at the Kaiser Family, Los Angeles Region, coverage rate of $1128.40. Note: This meant that employees are responsible for paying the difference for calendar year 2012 and beyond on any increases to health insurance beyond the capped amount. With verifiable proof of non -City health benefits coverage as determined by the Human Resources Director, employees shall be eligible to receive either cash -in- lieu of benefits on a post -tax basis or a contribution in lieu of benefits to deferred compensation on a pre -tax basis in an amount equivalent to the Los Angeles County Kaiser "Employee Only" rate or five hundred dollars ($500.00) per month, whichever is less. Effective March 2005, the City will reimburse eligible employees up to a maximum of one hundred twenty dollars ($120.00) for health plan co- payments incurred in the previous calendar year with proper documentation. In the event an employee incurs co- payment costs that exceed the agreed reimbursable amount of one hundred twenty dollars ($120.00) in a given year, the employee may carry over the non - reimbursable amounts for subsequent payment up to three (3) years with proper documentation. The City thereafter eliminated co -pay reimbursements for those employees hired on or after January 1, 2012. Employees hired on or after January 1, 2012, are not eligible for City paid health, dental, vision or life insurance coverage upon retirement. Dental For full time employees hired before January 1, 2009, the City will continue to contribute up to one hundred percent (100 %) of the established family rate for dental insurance selected by that employee. For full time employees hired on or 13 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 after January 1, 2009, the City shall contribute up to eighty percent (80 %) of the established family rate for dental insurance selected by that employee. In March of each year of the MOU, the City will reimburse the employee for dental plan deductibles incurred in the previous calendar year. Effective November 1, 1999, the City shall enhance the current dental benefits to include a retirement benefit for employees who retire from active City service with at least five years tenure with the City. Verification of CalPERS retirement application will be required. _Life Effective July 1, 2002, the City shall pay a life insurance premium for all full -time Group represented employees in the amount of fifty thousand dollars ($50,000.00) with the full cost of the premium paid by the City, inclusive of a retirement benefit as outlined for dental insurance. Vision For full -time employees hired before January 1, 2009, the City will continue to contribute up to one hundred percent (100 %) of the established family rate for vision insurance selected by that employee. For full -time employees hired on or after January 1, 2009, the City shall contribute up to eighty percent (80 %) of the established family rate for vision insurance selected by that employee. The City shall continue to include a retirement benefit for employees who retire from active City service with at least five years tenure with the City. Verification of CaIPERS retirement application will be required. Effective March 2005, the City will reimburse employees up to a maximum of thirty dollars ($30.00) per eligible dependent/employee for vision plan co- payments incurred in the previous calendar year with proper documentation. In the event an employee incurs co- payment costs that exceed the agreed reimbursable amount of thirty dollars ($30.00) per eligible dependent/employee in a given year, the employee may carryover the non - reimbursable amounts for subsequent payment up to three (3) years with proper documentation. The City shall provide a flexible benefits plan in accordance with Internal Revenue Code Section 125. The City shall maintain its Employee Assistance Program (EAP) with the full insurance premium incurred by the City. Effective January 1, 1999, the City shall implement the State Disability Insurance Program with the full cost of such plan to be paid by the City. 14 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 17 SICK LEAVE POLICY Sick leave with pay shall be granted by the City Manager and /or his /her designee at the rate of one work day for each calendar month of service accrued at 3.69 hours per pay period or prorated if not a full pay period. Sick leave shall not be considered as a privilege which an employee may use at his /her discretion, but shall be allowed only in case of necessity and actual sickness or disability. In no event will sick leave with pay be granted in excess of that which is accrued. In order to receive compensation while absent on sick leave, the employee shall notify his /her immediate supervisor prior to, or- within-- two-(Z) - hours - after-- the-time set for beginning duty, unless notification is physically impractical. A physician's certificate or personal statement will be submitted for absences of three (3) days or more. The City may require a physician's certificate and release to return to work whenever there is reasonable cause to believe that there has been an abuse of sick leave or when there is reasonable doubt as to the employee's ability to perform his /her duties satisfactorily and safely. The City maintains the right to discipline any employee for excessive absenteeism. Effective January 1, 2000, the City implemented AB 109, Labor Code Section 233, as required by law. An employee shall be allowed to use in any calendar year sick leave accrued and available in an amount not less than what would be accrued in six (6) months of employment to attend to the illness of a child, parent, or spouse of the employee. For purposes of this section, six (6) months sick leave accrual will be based on thirteen (13) pay periods. All conditions and restrictions placed by the City upon the use by an employee of sick leave shall also apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or a registered domestic partner. This section does not extend the maximum period of leave to which an employee is entitled under Section 12945.2 of the Government Code or under the federal Family and Family and Medical Leave Act of 1993, regardless of whether the employee receives sick leave compensation during that leave. There shall be a sick leave pay off program. This program uses a sick leave limit of ninety -six (96) work days and the frozen amount, if applicable, which consists of sick leave hours earned in excess of ninety -six (96) work days prior to July 1, 1974, and retained and frozen as of that date. The method of compensation shall be on a straight time pay basis at the rate of pay in effect at the time of pay off. The pay off program has three elements: retirement, resignation or termination, and annual compensation. For purpose of the pay off program retirements are limited solely to regular service (non - disability) retirements. Upon regular service (non - disability) retirement employees shall receive fifty percent (50 %) compensation for unused 15 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 sick leave hours up to the maximum of the ninety -six (96) workdays. Fifty percent (50 %) compensation shall also be received for the sick leave hours frozen as of June 30, 1974. For purpose of the pay off program resignations and terminations shall exclude terminations for cause and retirements. Upon resignation or termination as specified herein and only after ten (10) years of continuous City service, employees shall be compensated for one - quarter (1/4) of their unused sick leave hours up to the maximum of ninety -six (96) work days. Twenty -five percent (25 %) compensation shall also be received for the sick leave hours frozen as of June 30, 1974. The annual compensation element of the sick leave pay off program is provided as follows: Fifty percent (50 %) of the sick leave earned beyond ninety -six (96) work days or the frozen amount shall be annually compensated to the employee at the end of each calendar year. The remaining fifty percent (50 %) of such excess sick leave remains on the books but shall be used for actual sick leave purposes only and shall not entitle the employee to any additional compensation. Sick leave accrued beyond the ninety -six (96) workday maximum or frozen amount shall be used prior to the earlier earned sick leave. Transfer of Leave Credits Upon official request by an employee experiencing a catastrophic illness /injury or event, the employee's department director, or the Group on behalf of the employee, the City Manager or his /her designee may allow individual employees the opportunity to transfer accrued vacation or compensatory time to another employee who has experienced a catastrophic event. All conditions for this transfer shall be in compliance with the City's Transfer of Leave (Catastrophic Leave) Policy. ARTICLE 18 HOLIDAYS Section 1. The City and Group agree to incorporate into this MOU the elimination of specified holidays and have floating holidays replace them. The holidays to be eliminated are: Washington's Birthday, Lincoln's Birthday, Columbus Day, Admission Day, and Veteran's Day. a) The total number of floating holidays is five (5), with all floating holidays available at the beginning of the calendar year. All floating holidays to be taken off are subject to operational and scheduling factors and must be approved by the employee's supervisor. b) Subject to (c) below, no floating holidays will be available until the successful completion of the original probationary period. At that time, such 16 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 employees will be credited with a pro rata portion of the aforesaid five (5) floating holidays based upon the time remaining in the initial calendar year of employment, but in no case less than one day. c) No floating holiday may be carried over to another calendar year. d) The availability of five (5) floating holidays on January 1 of each year (in the case of a permanent employee) and of a pro rata portion thereof upon successful completion of the probationary period (in the case of new employees) is based upon the assumption that the employee will successfully complete employment with the City for the calendar year in question. If an employee fails to successfully complete employment for the said calendar year, the number of floating holidays available to the employee shall be prorated on the basis of the portion of the calendar year for which the employee was employed by the City. If, under such circumstances, the employee has used more floating holidays than were actually available, the City shall make an appropriate reduction in its payment of final compensation to such employee. e) Effective January 1, 1992, the accrual for five (5) floating holidays for fulltime employees shall be fifty (50) hours per annum based on a 4/10 work schedule. f) In the event the City returns to an 8- hour /5 day workweek, then the accrual rate will reflect such change. Section 2.. Employees covered under this MOU shall be allowed the following paid holidays: New Year's Day, January 1; Martin Luther King Jr., third Monday in January; Presidents' Day, third Monday in February; Cesar Chavez Day, March 31; Memorial Day, last Monday in May; Independence Day, July 4; Labor Day, first Monday in September; Thanksgiving Day, fourth Thursday in November; day after Thanksgiving, fourth Friday in November; Christmas Day, December 25. When a holiday named in this regulation falls on Sunday, it shall be observed on the following Monday. As the City is currently operated on a flexible work schedule, those holidays which fall on a Friday in any given year will not be observed by 4/10 employees. Those employees working a 5 -day /8 hour (5/8) workweek will be paid for those holidays falling- on a Friday. This provision is made with the understanding that the accrual rates for floating and personal leave time (Article 21) will be adjusted annually for 5/8 scheduled employees as warranted to compensate both the 4/10 and 5/8 work schedules on an equal basis. In the event the City returns to a 5/8 work schedule for all full -time employees, those holidays falling on a Saturday will be observed on Friday. The City Manager may determine and approve as warranted the carryover of up to two (2) floating holidays into the following year for full -time employees. Said approved holidays shall be taken no later than June 30 of the carryover year. All 17 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 requests must be submitted to the City manager no later than November 1 to be considered. The City agrees that if the City closes on the days between Christmas and New Year's Day during Fiscal Years 2013 -2014 or 2014 -2015, employees covered by this MOU shall not lose any pay during this period. Section 3. Personal Leave Day may be taken on any day of the employee's choosing, subject to operational and scheduling factors and approval by the employee's supervisor. The Personal Leave Day must be taken within the calendar year or it is lost. Employees who terminate without using their Personal Leave Day for that calendar year shall receive payment for this day. Effective January 1, 2013, the Personal Leave time available will be twenty (20) hours for employees working the 4/10 schedule and sixteen (16) hours for employees working the 5/8 schedule. ARTICLE 19 ACTING SUPERVISORY COMPENSATION At such time as a supervisory position becomes temporarily vacant for reasons of sick leave, leave of absence, or injury on duty status, a civil service employee may be assigned the supervisory duties and designated as "acting." Further, at such time as a supervisory position becomes vacant, i.e., without an incumbent, a civil service employee who has less than the minimum training or experience requirements for temporary appointment may be assigned the duties and designated as acting upon determination by the Department Head (or City Manager, if appropriate) that said employee is best qualified to perform all or a substantial portion of the duties of the supervisory position. The selection of the employee for "acting" status shall be within the sole discretion of the Department Head. Employees acting in a supervisory position shall not be entitled to any additional compensation for doing so unless they work eight (8) or more days in that assignment, at which time they shall be entitled to acting compensation retroactive to the first day of that assignment. Such compensation shall continue until such time as the incumbent returns or, as in the case of the vacant position, the position is filled or the designated employee meets the temporary appointment requirements. Acting compensation is at the step rate -In the supervisory position range which exceeds but is closest to the employee's current rate of pay in the permanent position or two hundred fifty dollars ($250.00) per month, whichever is less. 18 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 20 RETIREMENT POLICY For employees hired prior to January 1, 2013, and for those employees hired after that date but determined by the California Public Employees Retirement System ( "CaIPERS ") to be "classic members" as defined by CaIPERS, the City will continue to provide employees a pension through the CaIPERS system commonly known as the "3% @60" formula. For new employees that are non - classic members, the City will provide a pension through CaIPERS using the "2% @ 62" formula, pursuant to the California Public Employees' Pension Reform Act of 2012 ( "PEPRA "). Employees hired prior to January 1, 2013 and classic members shall continue to pay up to eight percent (8 %) for any CaIPERS member contribution under the 3% @ 60 formula, unless directed to pay a higher percentage by law or a mandate directly from CaIPERS. New, non - classic members shall pay 100% for any CaIPERS member contribution under the 2% @ 62 formula pursuant to PEPRA. The City does not elect to pay any part of employee member contributions known informally as Employer Paid Member Contributions (EPMC) as allowed under Government Code Section 20691 pursuant to agreement reached between the parties in 2012. Retirement compensation for employees hired prior to January 1, 2013 and classic members shall be computed on the employee's one (1) year's highest earnings. Retirement compensation for non - classic members shall be computed on the employee's three (3) highest years of service. ARTICLE 21 LEAVE BENEFIT ACCRUAL RATES The following shall represent leave benefit accrual rates for full -time classified employees: VACATION 80 hours /year (80/26) = 3.08 hours /pay period VACATION 120 hours /year (120/26) = 4.62 hours /pay period VACATION 160 hours /year (160/26) = 6.15 hours /pay period SICK LEAVE 96 hours /year 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 (96/26) = 3.69 hours /pay period 19 FLOATING HOLIDAYS 50 hours /year (50/26) = 1.923 hours /pay period (518 work schedule; see below) PERSONAL LEAVE 10 hours /year Credited January 1 annually (4/10) 8 << 61 (5/8) Effective January 1, 2013: 4/10 Floating Holiday 50 hours Personal Leave 20 hours 5/8 Floating Holiday 40 hours Personal Leave 16 hours ARTICLE 22 NON - DISCRIMINATION It is agreed that neither the City nor the Group shall discriminate against any employee because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation of any person, employee organization membership or activity, or political affiliation. This prohibition shall include any other protected characteristics not mentioned_ here, as may be subsequently required by law pursuant to Government Code Section 12940. ARTICLE 23 ANNUAL VACATION LEAVE The purpose of annual vacation leave is to enable each eligible employee annually to return to work mentally refreshed. All -full time employees in the classified service shall be entitled to annual vacation leave with pay. Employees not eligible for vacation leave with pay are: 1) Employees still serving their original probationary period in the services of the City; however, vacation credits for the time shall be granted to each such employee who later received a permanent appointment. 2) Employees who work on an intermittent or seasonal basis and all part -time employees. All eligible employees in the first through seventh year of continuous service shall earn vacation credit at the rate of eighty (80) hours per year. Beginning with the eighth year and through the fourteenth year of continuous service employees shall 20 006170.00002 LEMG MOU FY 2015 -2016 73300661.1 earn vacation credit at the rate of one hundred twenty (120) hours per year. Beginning with the fifteenth year of continuous service and thereafter employees shall earn vacation credit at the rate of one hundred sixty (160) hours per year. Each eligible employee shall be required to have served the equivalent of one year of continuous service in the City in order to be eligible for his /her full annual vacation leave. After six (6) months of continuous service, the employee may be permitted to take vacation leave not to exceed forty (40) hours. In no event, however, will paid vacation be granted in excess of earned vacation credits. Vacation leave must be approved in advance by the Department Head or City Manager. The times during a calendar year at which an employee may take his /her vacation shall be determined by the Department Head with due regard to the wishes of the employee and particular regard for the needs of the service. Vacation Cap Effective January 1, 2009, an employee may accumulate vacation to a maximum of six hundred forty (640) hours. Vacation leave is accrued as earned, and the amount of vacation leave accumulated shall not exceed the maximum. Accrual shall stop whenever the employee is at the maximum. Upon reaching the maximum allowed accumulation, future vacation hours shall not be earned unless or until vacation usage or cash out causes the employee's accrual to fall below the maximum limit set forth in this MOU. Further, any employee who was over the 640 hours cap as of January 1, 2012 ceased accruing vacation hours until such time as the individual employee's accrued vacation was less than 640 hours. Upon reaching the maximum allowed accumulation, future vacation hours shall not be earned unless or until vacation usage or cash out causes the employee's accrual to fall below the maximum limit set forth in this MOU. At the City's election, the City may allow an affected employee over the six hundred forty (640) hour cap as of January 1, 2012 additional buybacks of vacation time, upon the affected employee's request and with the consent of the City Manager, until that employee's total accrued hours fall below the six hundred forty (640) hour cap. In the event one or more municipal holidays fall within an annual vacation leave, such holidays shall not be charged as vacation leave, and the vacation leave shall be extended accordingly. Employees who terminate employment shall be paid in a lump sum for all accrued vacation leave upon termination of employment. Effective January 1, 2012, employees represented by the Group may be paid for up to one hundred (100) hours per annum for compensable time. Sick time is 21 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 excluded from this provision. Financial hardship requests to convert additional accrued leave to cash will be reviewed on a case -by -case basis and require the approval of the City Manager. Financial hardship requests shall be submitted to the Human Resources Director with appropriate justification. Payment shall be made in the following manner: a. Payment will be made annually at the employee's current hourly rate of pay. b. Payment will not exceed one hundred (100) hours per calendar year. c. Payment request shall be submitted to the City Manager or his /her designee no later the 1St Thursday in November in order to be considered for payment. A form is available in the Human Resources Division. d. Such annual payment shall be included in the check for the first pay period ending in December provided the funds are available. The above referenced program permitting payment for up to one hundred (100) hours per annum for compensable time shall be suspended from July 1, 2015 through June 30, 2016. ARTICLE 24 MILITARY LEAVE Military leave shall be granted in accordance with the provisions of federal and state law. ARTICLE 25 FAMILY CARE AND MEDICAL LEAVE POLICY I. STATEMENT OF POLICY In addition to other leaves available under the MOU and /or other City provided leaves of absences, employees may also be eligible for leave under federal and state law. The City will provide family and medical care leave for eligible employees as required by state and federal law, including leaves under the Federal Family and Medical Leave Act ( "FMLA "), the State of California Family Rights Act ( "CFRA "), and Paid Family Care Leave ( "PFCL" ). An individual who is entitled to leave under the FMLA and the CFRA must take Family Temporary Disability Insurance leave concurrent with leave taken under the FMLA and the CFRA. II. DEFINITIONS 22 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 In implementing this policy, the following definitions will apply: A. "12 -Month Period" means a rolling twelve (12) month period measured backward from the date leave is taken and continuous with each additional leave day taken. B. "Parent" means the biological, foster, or adoptive parent of an employee or an individual who stands or stood in loco parentis (in place of a parent) to an employee when the employee was a child. This term does not include parents -in- law. C. "Child" means a child under the age of eighteen (18) years of age, or eighteen (18) years of age or older who is incapable of self care because of a mental or physical disability. An employee's child is one for whom the employee has actual day -to -day responsibility for care and includes, a biological, adopted, foster or step - child, a legal ward, a son or daughter of a domestic partner, or a son or daughter who stands in loco parentis to that child. D. "Spouse" means a husband or wife as defined or recognized under California State law for purposes of marriage. E. "Domestic Partner" means a partner as defined in Section 297 of the California Family Code. F. "Family Member" means a child, parent, spouse, or domestic partner as defined in this policy. G. "Serious Health Condition" means an illness, injury impairment, or physical or mental condition that involves: 1. Inpatient Care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity (i.e., inability to work, or perform other regular daily activities due to the serious health condition, treatment involved, or recovery therefrom); or 2. Continuing treatment by a health care provider: A serious health condition involving continuing treatment by a health care provider as defined under federal and /or state law. H. "Health Care Provider" is defined pursuant to the FMLA and CFRA. 111. REASONS FOR LEAVE Leave is only permitted for the following reasons: 1. The birth of a child or to care for a newborn of an employee or the employee's domestic partner; 23 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 2. The placement of a child with an employee in connection with the adoption or foster care of a child by the employee or domestic partner; 3. Leave to care for a child of the employee, spouse, or domestic partner who has a serious health condition; 4. Leave because of a serious health condition that makes the employee unable to perform the functions of his /her position; or 5. Leave to care for a parent, spouse, or domestic partner who has a serious health condition. IV. EMPLOYEES ELIGIBLE FOR LEAVE (Not applicable to PFCL) An employee is eligible for leave if the employee: 1. Has been employed for at least twelve (12) months; and 2. Has been employed for at least one thousand two hundred fifty (1,250) hours during the twelve (12) month period immediately preceding the commencement of the leave. V. AMOUNT OF LEAVE Eligible employees are entitled to a total of twelve (12) workweeks of leave during any twelve (12) month period. A female employee has a reasonable leave of absence of up to four (4) months whenever she becomes disabled as a result of pregnancy, childbirth, or related medical conditions. Four (4) months is the maximum allowed for pregnancy - related disability leave. A female employee who is physically and mentally capable of returning to work before the expiration of four months is not entitled to a full four (4) month leave of absence. Notwithstanding any leaves available under this policy, once an employee exhausts all federal and state leaves, and any accrued paid leaves, the employee may apply for an unpaid administrative leave of absence pursuant to Article 38 for successive periods of up to thirty (30) days each up to a maximum of one hundred eighty (180) consecutive days. The City has the discretion to either grant or deny any request for an unpaid administrative leave. Benefits shall not accrue during the term of an unpaid leave of absence nor does such time count as service time for step increases, seniority or other purposes. 24 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 A. Minimum Duration of Leave If leave is requested for the birth, adoption, or foster care placement of a child of the employee or domestic partner, leave must be concluded within one (1) year of the birth or placement of the child. In addition,_ the basic minimum duration of such leave is two (2) weeks. However, an employee is entitled to leave for one of these purposes (e.g., bonding with a newborn) for at least one (1) day, but less than two (2) weeks duration on any two (2) occasions. If leave is requested to care for a child, parent, spouse, domestic partner or the employee him /herself with a serious health condition, there is no minimum amount of leave that must be taken. However, the notice and medical certification provisions of this policy must be complied with. B. Spouses Both Employed by the City In any case in which domestic partners or spouses are both employed by the City and both are entitled to leave, the aggregate number of workweeks of leave to which both may be entitled may be limited to twelve (12) workweeks during any twelve (12) month period if leave is taken for the birth or placement for adoption or foster care of the employees' child (i.e., bonding leave). This limitation does not apply to any other type of leave under this policy. VI. EMPLOYEE BENEFITS WHILE ON LEAVE Leave under this policy is unpaid. While on leave, employees will continue to be covered by the City's group health insurance to the same extent that coverage is provided while the employee is on the job. Employees may make the appropriate contributions for continued coverage by payroll deductions or direct payments made to these plans. Depending on the particular plan the City will inform employees whether the premiums should be paid to the carrier or to the City. An employee's coverage on a particular plan may be dropped if he /she is more than thirty (30) days late in making a premium payment. However, employees will receive a notice at least fifteen (15) days before coverage is to cease, advising that coverage will be dropped if the employee's premium payment is not paid by a certain date. Employee contribution rates are subject to any change in rates that occurs while the employee is on leave. If an employee fails to return to work after his /her leave entitlement has been exhausted or expires, the City shall have the right to recover its share of health plan premiums for the entire leave period, unless the employee does not return because of the continuation, recurrence, or onset of a serious health condition of the employee or his /her family member which would entitle the employee to leave, 25 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 or because of circumstances beyond the employee's control. The City shall have the right to recover premiums through deduction from any sums due the City (e.g. unpaid wages, vacation pay, etc.). VII. SUBSTITUTION OF PAID ACCRUED LEAVES While on leave under this policy, as set forth herein, an employee may elect to concurrently use paid accrued leaves. Similarly, the City may require an employee to concurrently use paid accrued leaves after requesting FMLA/CFRA leave and Paid Family Leave, and may also require an employee to use FMLA leave concurrently with a non- FMLA/CFRA leave which is FMLA/CFRA- qualifying. A. Employer's Right to Require An Employee to Use Paid Accrued Leaves Concurrently With Family Leave Where an employee has earned or accrued paid vacation and /or administrative leave, that paid leave must be substituted for all or part of any (otherwise) unpaid leave under this policy. As for sick leave, an employee is entitled and may use sick leave concurrently with leave under this policy if: 1. The leave is for the employee's own serious health condition; or 2. The leave is needed to care for a parent, domestic partner, spouse or child with a serious health condition, and would be permitted as sick leave under the City's sick leave policy. As for compensatory time, an employee may use compensatory time concurrently with leave under this policy. As a condition of an employee's initial receipt of family temporary disability insurance benefits during any twelve (12) month period in which an employee is eligible for these benefits, the City may require an employee to take up to two (2) weeks of earned but unused vacation leave prior to the employee's initial receipt of these benefits. If the City requires the employee to take vacation leave, that portion of the vacation r leave that does not exceed one (1) week shall be applied to any applicable waiting period for receipt of family temporary disability insurance benefits. VIII. MEDICAL CERTIFICATION Employees who request leave for their own serious health condition or to care for a child, parent, domestic partner, or a spouse who has a serious health condition must provide written certification from the health care provider of the individual requiring care if requested by the City. 26 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 If the leave is requested because of the employee's own serious health condition, the certification must include a statement that the employee is unable to perform the essential functions of his /her position. A. Time to Provide a Certification When an employee's leave is foreseeable and at least thirty (30) days notice has been provided, if a medical certification is requested, the employee must provide it before the leave begins. When this is not possible, the employee must provide the requested certification to the City within the time frame requested by the City (which must allow at least fifteen (15) calendar days after the employer's request) unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts. B. Consequences for Failure to Provide an Adequate or Timely Certification If an employee provides an incomplete medical certification, the employee will be given a reasonable opportunity to cure any such deficiency. However, if an employee fails to provide a medical certification within the time frame established by this policy, the City may delay the taking of FMLA/CFRA leave until the required certification is provided. C. Recertification If the City has reason to doubt the validity of a certification, the City may require a medical opinion of a second health care provider chosen and paid for by the City. If the second opinion is different from the first, the City may require the opinion of a third provider jointly approved by the City and the employee, but paid for by the City. The opinion of the third provider will be binding. An employee may request a copy of the health care provider's opinions when there is a recertification. D. Intermittent Leave or Leave on a Reduced Leave Schedule If an employee requests leave intermittently (a few days or hours at a time) or on a reduced leave schedule to care for an immediate family member with a serious health condition, or for pregnancy - disability leave, the employee must provide medical certification that such leave is medically necessary. "Medically necessary" means there must be a medical need for the leave and that the leave can best be accomplished through an intermittent or reduced leave schedule. IX. EMPLOYEE NOTICE OF LEAVE 27 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 Although the City recognizes that emergencies arise which may require employees to request immediate leave, employees are required to give as much notice as possible of their need for leave. If leave is foreseeable, at least thirty (30) days notice is required. In addition, if an employee knows that he /she will need leave in the future, but does not know the exact date(s) (e.g. for the birth of a child or to take care of a newborn), the employee shall inform his /her supervisor as soon as possible that such, leave will be needed. If the City determines that an employee's notice is inadequate or the employee knew about the requested leave in advance of the request, the City may delay the granting of the leave until it can, in its discretion; adequately cover the position with a substitute. All notices required under this Policy must be submitted to the Employee's Department Head. X. REINSTATEMENT UPON RETURN FROM LEAVE A. Right to Reinstatement Upon expiration of leave, an employee is entitled to be reinstated to the position of employment held when the leave commenced, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. Employees have no greater rights to reinstatement, benefits and other conditions of employment than if the employee had been continuously employed during the FMLA/CFRA/Paid Family Leave period. If a definite date of reinstatement has been agreed upon at the beginning of the leave, the employee will be reinstated on the date agreed upon. If the reinstatement date differs from the original agreement of the employee and City the employee will be reinstated within two (2) business days, where feasible, after the employee notifies the employer of his /her readiness to return. B. Employee's Obligation to Periodically Report on His /Her Condition Employees may be required to periodically report on their status and intent to return to work. This will avoid any delays to reinstatement when the employee is ready to return. C. Fitness for Duty Certification As a condition of reinstatement of an employee whose leave was due to the employee's own serious health condition, which made the employee unable to perform his /her job, the employee must obtain and present a fitness - for -duty certification from the health care provider that the employee is able to resume work. Failure to provide such certification will result in denial of reinstatement. 28 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 26 HOURS OF WORK All classified City employees shall work five (5) eight (8) hours shifts per week, Monday through Friday, except as designated by other Resolutions and Ordinances enacted by the City Council and by directives of the City Manager acting within the framework of said Resolutions and Ordinances. Employees covered by this MOU shall also be eligible to work a 4/10 compressed work week or flexible work schedule as mutually agreed between the employee and Department Head and approved by the City Manager or his /her designee. Resolution 76 -86 provided that no part -time person, temporary help, or seasonal worker shall work more than thirty -five (35) hours in any week. Employees shall serve a total of 20 hours of furloughs from December 24, 2015 through January 1, 2016. The furloughs shall be "smoothed" so that the salary reduction shall be spread evenly over the applicable pay periods beginning on the first full pay period after the adoption of the MOU. Employees will not be able to utilize their leave banks during the 20 hours of furloughs. During the other three work days of that period, employees shall have the option to come in to work their normal shift or use any applicable leaves. ARTICLE 27 ATTENDANCE Employees shall be in attendance at their work in accordance with the rules regarding hours of work, holidays and leaves. If an employee is unable to report to work, the employee must notify his /her supervisor in accordance with departmental policy. Failure to do so may result in disciplinary action. Any employee who is unable to report to work must be approved for paid leave status, unless his /her accumulated paid leave time has been exhausted, or on approved leave of absence in accordance with Article 38. Failure on the part of an employee, absent without leave to return to duty within twenty -four (24) hours after notice to return, shall be deemed a resignation unless an acceptable reason is given. Such notice to return shall be sent by registered mail to the addressee only, return receipt requested, or by courier or telegram. It is the responsibility of the employee to notify the supervisor and the Human Resources Division of any change of address'or telephone number. ARTICLE 28 GRIEVANCE AND DISCIPLINARY APPEAL PROCEDURE A "Grievance" shall be defined as a controversy between the City and the Group or an employee or employees covered by this MOU solely relating to alleged violations of written terms of this MOU. An appeal of a disciplinary action, 29 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 including suspension, discharge for cause, demotion or disciplinary reduction in pay, shall initially be submitted at Step 3 and contain a succinct written statement of the basis of appeal within five (5) working days of the imposition of discipline. All written responses to a disciplinary appeal will specify reasons for the decision and inform the employee of the appeal procedure and applicability of Section 1094.6 of the Code of Civil Procedure limiting the time within which Legal actions must be commenced. There shall be an earnest effort on the part of both parties to settle grievances promptly through the steps listed below. The employee may request the assistance of a representative of his own choosing in preparing and presenting a grievance. Either party to the grievance - - -may invite persona- -with - relevant information to be present. For purposes of this procedure "working days" refers to Monday through Thursday, 7:00 AM to 6:00 PM and excludes weekends and holidays. A grievance by a Department Head shall be submitted in accordance with Step 3. Step 1: An employee's grievance must be orally discussed with the first line supervisor immediately in charge of the aggrieved employee within ten (10) working days after the event giving rise to the grievance, or ten (10) working days after the date that he /she should have been reasonably expected to have had knowledge of the grievance. The supervisor will give his /her answer to the employee by the end of the tenth (10th) working day following the presentation of the grievance and the giving of such answer will terminate Step 1. Step 2: If the grievance is not settled in Step 1 and the employee wishes to pursue it further, the grievance will be reduced to writing by the employee, fully stating the facts surrounding the grievance and /or detailing the specific provisions of this MOU alleged to have been violated, signed and dated by the employee and presented to the Department Head or, in his /her absence, his /her designee within ten (10) working days after termination of Step 1. Written discrimination allegations must contain a description of the purported discriminatory action and the specific basis which is defined by Federal or State law as discriminatory. A meeting with the employee, designated representative (if any) and Department Head, or in his /her absence, his /her designee, may be arranged at a mutually agreeable location and time to review and discuss the grievance: If scheduled, such meeting will take place within ten (10) working days from the date the grievance is received by the Department Head, or, in his /her absence his /her designee. The Department Head, or, in his /her absence his /her designee, will give a written reply by the end of the fifth (5th) work day following the date of the meeting, and the giving of such reply will terminate Step 2. Step 3: If the grievance is not settled at step 2, the employee may move the grievance to Step 3 by serving written notice upon the City Manager within ten (10) working days after receipt of the reply in step 2, or within ten (10) working 30 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 days after the reply was due, requesting a meeting. Said meeting shall be scheduled within (10) working days after receipt of such request. The City Manager, or in his /her absence his /her designee, shall provide the employee with a written disposition of the grievance within ten (10) ten working days after the meeting. The City Manager's decision shall be final and binding, except in disciplinary and discrimination cases as specified below. Step 4: The employee may seek review by the Personnel Board of the City Manager's decision in grievance matters by submitting a written request to the Human Resources Division within ten (10) working days from the date of the answer in Step 3. The Personnel Board may grant an informal hearing and the Board's role in such matter is advisory only, except that in disciplinary and discrimination cases, the Board shall grant a hearing and the Board's decision shall be final and binding. If any employee has complied with the above steps and requested Personnel Board review in a disciplinary appeal or discrimination allegation, the Board shall hold a hearing within thirty (30) days of the request and take such action as it deems appropriate. It is agreed that neither party shall attempt to influence the Personnel Board prior to the hearing. Upon conclusion of any investigation or hearing, the Personnel Board shall, within ten (10) working days, notify the Human Resources Director in writing of its finding and recommendations. A copy of such finding shall also be transmitted to the affected employee. All costs of representation resulting from the process shall be borne by the party incurring them. No employee shall use City time, staff or materials in the pursuit of a grievance or in response to a proposed or effected disciplinary action, unless he or she has obtained prior specific authorization to do so. A grievance or other appeal which is not brought forward within the time limit provided within each of the sections of this article shall be deemed to have been waived and settled, unless such time limit is expressly extended by mutual agreement. Time limits as set forth above may be extended by a mutual agreement between the parties, but neither party shall be required to do so. Probationary and part-time employees are excluded from the provisions of this article. 31 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 29 BEREAVEMENTLEAVE In the event of a death in the employee's immediate family, the Department Head or City Manager may grant a four (4) day bereavement leave with pay. "Immediate family" is defined as mother, father or grandparents of employee or mate; _mate; brother, sister, children or grandchildren of employees. ARTICLE 30 EMERGENCY LEAVE In the event of an emergency, the City Manager may grant the use of a maximum of two (2) days sick leave annually as emergency leave. Application for emergency leave may be under the following conditions: 1) hospitalization or illness in immediate family *; 2) death in family not covered by bereavement leave; and 3) other events which preclude the employee's attendance at work and which the Department Head determines constitutes an emergency. If the Department Head denies an employee's request for emergency leave, the employee may request in writing that the City Manager review the request. The City Manager's decision shall be final. * Not covered under Labor Code Section 233 / Article 17, Sick Leave Policy. ARTICLE 31 JURY DUTY The City shall compensate a full -time employee who has been called for jury duty. Compensation shall be at the employee's regular hourly rate pay. The employee shall remit to the City the amount paid by the courts minus any mileage reimbursement. Service on a grand jury is specifically excluded from this Article. ARTICLE 32 SERVICE DISABILITY Under the provisions of the Worker's Compensation Insurance and Safety Act of California, employees are compensated for injuries sustained in the course of employment, rendering them unable to perform their duties. The City of Lynwood provides full salary continuance for thirty (30) calendar days to an employee who is disabled by injury or illness arising out of and in the course of his /her duties. Time off work due to an on- the -job injury is not deductible from accumulated sick leave for the period not to exceed thirty (30) calendar days. However, the salary continuation may be extended in two (2) separate fifteen (15) calendar day extensions with the approval of the City Manager. This equates to up to 60 days in total: the initial 30 days and another 30 days in two 15 -day increments upon the 32 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 approval of the City Manager. Thereafter, compensation shall be only as provided in the Worker's Compensation and Safety Act. Temporary and part -time employees are excluded from the provisions of this Article relating to salary continuance. 33 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 33 NO STRIKE A. Prohibited Conduct Section 1. The Group, its officers, agents, representative and/or members agree that during the term of this MOU they will not cause or condone any strike, walkout, slowdown, sick out, or any other jab action by withholding or refusing to perform services. Section 2. Any employee who participates in any conduct prohibited in Section 1 above, shall be subject to termination by the City. Section 3. In addition to any other lawful remedies or disciplinary action available to the City if the Group fails, in good faith, to perform all responsibilities listed below in B, Section 1, the City may suspend any and all of the rights, privileges, accorded to the Group under the Employee Relations Resolution in this MOU including, but not limited to, right of access, check -off, the use of the City bulletin boards and facilities. B. Group Responsibility Section 1. In the event that the Group, its officers, agents, representatives, or members engage in any of the conduct prohibited in A, Section 1, above, the Group shall immediately instruct any persons engaging in such conduct that their conduct is in violation of this MOU and unlawful and they must immediately cease engaging in conduct prohibited in Al and return to work. Section 2. If the Group performs all of the responsibilities set forth in Section 1 above, its officers, agents, representatives shall not be liable for damages for prohibited conduct performed by employees who are covered by this MOU in violation of Section 1 above. ARTICLE 34 FULL FAITH AND CREDIT CLAUSE For purposes of administering the term and provisions of the various ordinances, resolution, rules, and regulations which may be adopted by the City pursuant to this MOU, all resolutions of the City Council, and all existing matters resolved regarding wages, hours, fringe benefits and other terms and conditions of employment prior to Myers - Milias -Brown Act in 1968, will remain unchanged and unaltered except where expressly changed or altered in this MOU. It is agreed that Management employees retain all benefits previously accrued as miscellaneous employees. 34 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 35 SAVINGS CLAUSE Any resolution of the City incorporating any provisions of this MOU shall provide that if any provision of this MOU or of such resolution of any kind is at any time or in any way held to be contrary to any law by any Court of proper jurisdiction, the - remainder of this MOU and the remainder of such resolution shall not be affected thereby and shall remain in full force and effect. ARTICLE 36 AUTHORIZED AGENTS_ For the purpose of administering the provisions of this MOU: A. The City's principal authorized agent shall be the City Manager or his /her duly authorized representative (address: 11330 Bullis Road, Lynwood, CA 90262; telephone: 310- 603 - 0220), except where a particular Management representative is specifically designed in connection with the performance of a specific function or obligation set forth herein. B. The Group's principal authorized agent shall be the Group's President or his /her duly authorized representative (address: 11330 Bullis Road, Lynwood, CA 90262; telephone 310 - 603 - 0220). ARTICLE 37 LAYOFF Subject to the express limitation set forth below, the City may separate any employee or class of positions without prejudice, because of the financial or economic condition of the City, reduction of work, or the necessity for the position or employment no longer exists. The City shall give such employee not less than thirty (30) days advance notice of separation and the reason therefor. However, no permanent full -time employee shall be separated while emergency, seasonal, probationary, part -time, or temporary employees are employed into the same positions according to the needs of the service as determined by the City. For the term of the Agreement, the City agrees that it will riot layoff any LEMG members for the sole purpose of achieving cost savings. The conditions of layoff shall be as follows: 1. PROMOTIONAL EXAMINATIONS. For purposes of layoff, all promotional opportunities will be conducted prior to layoffs proceeding. 2. ORDER OF SEPARATION. The principal criterion used in determining the order of separation and bumping rights shall be seniority based on the total 35 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 years of continuous full -time service and any prior part -time service as calculated on a pro -rata basis with the City provided the employee presently possesses the skill, ability and qualifications to perform the job. Layoffs shall be in the reverse order as hired. That is, the employee in the affected job class with the least total City service shall be laid off first. Whenever seniority is equal, the following criteria shall be applied in the indicated order: a. Ranking on eligibility list; b. Performance Evaluations; c. Drawing of lots. 3. BUMPING RIGHTS. Any full -time employee who has been given notice of layoff may displace another employee in the same job class with less seniority in the same job class, or bump to another class in which they formerly held a permanent appointment and there is an employee with less seniority. It is understood that an employee seeking to bump into a lower class shall first occupy any vacant position before displacing an existing employee. After the City has notified the affected employee of the layoff and the position available to the employee, if any, to bump, he /she must notify the Personnel Officer of his /her intent to exercise the bumping rights within ten (10) calendar days of the position in the City which they intend to bump, or the bumping rights shall be barred and waived to the employee. The employee with the least seniority shall be displaced by the person who is laid off. The employee displaced shall be considered as laid off for the same reason as the person who displaced him /her and shall in the same manner be eligible to bump to a position within City in which he /she formally held a permanent position. 4. APPOINTMENT OF LAID -OFF EMPLOYEES TO LOWER CLASS. Any employee in a represented job class who is scheduled to be laid off due to lack of work, lack or funds, of elimination of position, may, not later than ten (10) calendar days after notice of layoff, request to displace ( "bump ") an employee in a lower job class within the job series provided the laid off employee has greater overall City service seniority than the employee in the lower job class and is qualified by education and /or experience for such a position. If there is more than one employee who is qualified for such appointment(s) the "bump" shall be based on seniority with the employee with the highest seniority offered the position first, then the next highest, etc. The City Manager shall approve the appointment of an employee who is to be laid off to a lower class which the employee is qualified without requiring an examination within the job series. An employee who has not previously served in the lower class may be required to successfully complete the probationary period for the class. 36 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 If the employee(s) have the same seniority, then the procedure for breaking ties set forth in this article shall apply. The employee displaced as a result of being "bumped" shall be considered as laid off for the same reasons as the person. originally displaced and the same displacement rights shall be afforded. 5. SALARY PLACEMENT. An employee(s) who accept an appointment to a lower job class as a result of a, layoff and /or a displacement ( "bump ") shall be placed at the step of the salary range which most closely corresponds to, but in no case exceeds, the salary step of the previously held position. ARTICLE 38 LEAVE OF ABSENCE A permanent classified employee may be granted an unpaid leave of absence of up to thirty (30) days for medical, personal, and other reasons. Extensions on other leave requests may also be granted for successive periods of up to thirty (30) days each up to a maximum of one hundred - eighty (180) consecutive days unless otherwise approved by the City Council. Benefits shall not accrue during the term of an unpaid leave of absence, nor does such time count as service time for step increase, seniority, or other purposes. Available compensatory time off and vacation leave shall be used prior to the commencement of a leave of absence. The City Manager may approve up to thirty (30) days unpaid leave for personal leave requests. All other requests for leaves of absence must be submitted in writing and be approved by the City Council. Military leave shall be granted as mandated by Federal and State law (See Article 24). Pregnancy leave shall be governed by the Family Care and Medical Leave Policy (See Article 25). Upon expiration of an approved unpaid leave of absence, the employee shall be reinstated in the position held at the time leave was granted. Failure on the part of an employee on leave to report promptly at the expiration of such I-eave - shall be cause for discharge. 37 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 ARTICLE 39 FULL UNDERSTANDING MODIFICATIONS WAIVER A. This MOU sets forth the full and entire understanding of the parties regarding the matters set forth herein, and any other prior or existing understanding or agreements by the parties,: whether formal or informal; regarding any such matters are hereby superseded or terminated in their entirety. B. Except as specifically provided herein; it is agreed and understood that each party hereto voluntarily and unqualifiedly waives its right and agrees that the other shall not be required to negotiate with respect to any other matters within the scope of negotiations during the term of this MOU. C. No agreement, alteration, understanding, variation, waiver, or modification of any of the terms or provisions contained herein shall in any manner be binding upon the parties hereto unless made and executed -in writing by all parties -hereto and, if required, approved and implemented by the City Council. D. The waiver of any breach, term or condition of this MOU by either party shall not constitute a precedent in the future enforcement of all its terms and provisions. ARTICLE 40 RENEGOTIATION The parties shall use their best efforts to submit new proposals for a successor MOU by January 4, 2016 and shall begin negotiations by January 18, 2016. ARTICLE 41 TERM This MOU is to cover said employees for the period from July 1, 2015 through June 30, 2016, effective upon adoption by City Council. 38 006170.00002 LEMG MOU FY 2015 -2016 13300661.1 In witness whereof, the .parties hereto have caused their duly authorized representatives to execute this Memorandum of Understanding on: City: Lynwood Employee Management Group: - --- By- By: City Manager LEMG, President Dated: August 2015 Dated: August L3, 2015 By: By: Hum eso rces L MG, Vice President Director Dated: August 2015 Dated: August , 2015 By: s` - By: Finance Director LEMG, Secretary Dated: August AZ , 2015 By:- City Attorney/efiief Negotiator Dated: August , 2015 Dated: August _Lj _, 2015 39 006170.00002 LEMG MOU FY 2015 -2016 13300661.1