Agenda Report - Page 3
Michael Salvador, Police Chief
Approved by:
Lori Waterman, City Manager
Attachments:
1. JAG 2023
CITY COUNCIL
OF THE
CITY OF ATWATER
RESOLUTION NO. 3422-23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER AUTHORIZING THE APPLICATION FOR THE 2023 EDWARD BYRNE
MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) PROGRAM.
WHEREAS, The United States Department of Justice, Office of Justice Programs, Bureau of Justice Assistance has made funding available under the Edward Byrne Memorial Justice Assistance Grant (JAG) Program to provide federal criminal justice funding to state and local jurisdictions supporting all components of the criminal justice system, from multijurisdictional drug and gang task forces to crime prevention and domestic violence programs, courts, corrections, treatment, and justice information sharing initiatives; and WHEREAS, JAG awards are based on a statutory formula; and WHEREAS, the City of Atwater has been allocated $14,784.00 in JAG funds for Federal fiscal year 2023; and
WHEREAS, Staff has determined a need to replace protective body armor and other law enforcement related equipment.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Atwater does hereby authorize the grant application to the Bureau of Justice Assistance 2023 Justice Assistance Grant (JAG) Program in the amount of $14,784.00. The City of Atwater authorizes the City Manager, Mayor, and designee’s to execute the Grant Application, and all other documents required for participation in the JAG Program, and any amendments there to on behalf of the City of Atwater.
Resolution No. 3422-23 Page 2
The foregoing resolution is hereby adopted this 14th day of August 2023.
AYES:
NOES:
ABSENT:
APPROVED:
________________________________
MIKE NELSON, MAYOR
ATTEST:
_______________________________
KORY J. BILLINGS, CITY CLERK
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
August 14, 2023
TO: Mayor and City Council
FROM: Lori Waterman, City Manager
PREPARED
BY:
Lori Waterman, City Manager
SUBJECT: Finance Director Employment Agreement (City Manager Waterman)
RECOMMENDED COUNCIL ACTION
Motion to ratify Finance Director Employment Agreement in the annual amount of $149,957.44 plus benefits with Anna B. Nicholas, in a form approved by the City Attorney; and authorize and direct the City Manager to execute the Agreement on behalf of the City; or
Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
Background:
The Finance Director position is a key management position in the operation of City business.Failure to maintain appropriate staffing levels incite management limits the city from planning for the future, and negatively affects the City's financial, budgetary, and other operating processes. The previous Finance Director resigned her position as of June 12, 2023. The City began recruitment efforts immediately for a new Finance Director after receiving notice. Appointment of a replacement Finance Director will reaffirm to the community and staff the City's ability to maintain organization and leadership.
The City Manager interviewed candidates and determined that Ms. Nicholas is the preferred candidate. Ms. Nicholas was issued a Conditional Offer of Employment with an anticipated start date of August 28, 2023. Ms. Nicholas brings with her over sixteen (16) years of experience in local government finance and public administration.
Analysis:
Pursuant to the terms of the Atwater Municipal Code, the City Manager negotiated a Finance Director Employment Agreement (Agreement) with Anna B. Nicholas. The employment agreement is being presented to the City Council pursuant to California
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
Government Code 54953 Employment Contracts, which requires the public agency to ratify all contracts for employment with chief executive officers in an open session of the governing body.
The Agreement contains the following proposed provisions:
• The Agreement shall expire on August 28, 2026, which is a term of three (3) years.
• The Finance Director's salary shall be $149,957.44 per year. • The City shall pay the Finance Director's premiums for her and her qualified dependents' medical, dental, and vision insurance on the same terms and conditions as are offered to other similarly situated City employees. • The City shall provide the Finance Director a City vehicle to use for City business only.
• If the Finance Director is terminated without cause, she shall be entitled to severance in the amount of four (4) months of wages.
• The Finance Director will receive 80 hours off administrative leave per year (accrued at 20 hours per quarter), but she may cash out unused leave, if there are available funds.
• The Finance Director shall be credited with 40 hours of vacation leave on date of hire.
• The Finance Director shall accrue vacation and sick leave on the same terms and conditions as are offered to other similarly situated City employees.
II. FISCAL IMPACTS:
Sufficient funding is available in the General Fund, Finance Department, Salaries, wages and benefits, Account No. 0001-1015-1001 through and including Account No. 0001-1015-1015. No additional fiscal impacts are associated with the Agreement. This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
This item has been reviewed by the City Attorney's Office.
IV. EXISTING POLICY:
This item is consistent with goal numbers one (1) and four (4) of the City's Strategic Plan: to ensure the City's continued financial stability and to optimize organizational structure, respectively.
V. ALTERNATIVES:
N/A
VI. INTERDEPARTMENTAL COORDINATION:
This item was coordinated by the City Manager's Office, Human Resources
Agenda Report - Page 3
Department, and Finance Department.
VII. PUBLIC PARTICIPATION:
Pursuant to California Government Code 54953 Employment Contracts, the purpose of ratifying employment agreements in an open session of the governing body is to provide the public with the opportunity to provide comments prior to ratification by the City Council.
VIII. ENVIRONMENTAL REVIEW:
This item is not a “project” under the California Environmental Quality Act (CEQA) as this activity does not cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to Public Resources Code section 21065.
IX. STEPS FOLLOWING APPROVAL:
Upon ratification of the employment agreement by the City Council, the City Manager, City Attorney, and the employee shall execute the Agreement.
Submitted & Approved by:
Lori Waterman, City Manager
Attachments:
1. Anna B. Nicholas - Contract for Finance Director
City of Atwater
Finance Director
Employment Agreement
FINANCE DIRECTOR
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 28th day of August 2023, (“Effective Date”), by and between the CITY OF ATWATER (“City”) and ANNA B. NICHOLAS (“Employee”). The City and Employee shall be referred to herein individually as a “Party” and collectively as “Parties.” There are no other parties to this Agreement.
RECITALS
A. The City Manager is authorized to negotiate and enter into employment agreements with Department Directors subject to the advice and consent of the Atwater City Council (“City Council”) pursuant to the terms of the Atwater Municipal Code (“Municipal Code”).
B. The City Manager has evaluated Employee’s knowledge, experience, skills, and ability to serve as the City’s Finance Director and has recommended to the City Council that Employee be appointed as the Finance Director for the City pursuant to the terms of this Agreement.
C. The Parties agree that this Agreement shall be the sole agreement between the Parties regarding the employment of Employee as Finance Director.
D. The Parties desire to execute this Agreement pursuant to the authority of, and subject to, the provisions of California Government Code (“Government Code”) section 53260 et seq.
NOW, THEREFORE, in consideration of the mutual covenants entered into between the Parties, and in consideration of the benefits that accrue to each, it is agreed as follows:
AGREEMENT
Section 1. Recitals. The recitals set forth above (“Recitals”) are incorporated herein by this reference and made a part of this Agreement. In the event of any inconsistencies between Recitals and Section 1 through 9 of this Agreement, Sections 1 through 9 will prevail.
City of Atwater
Finance Director
Employment Agreement
Section 2. Appointment of Finance Director, Duties, and Term.
Section 2.1. Appointment of Finance Director and Duties. Subject to the consent of and ratification by the City Council, the City Manager hereby appoints Employee to the position of Finance Director effective August 28, 2023, in and for the City, to perform the function and duties of the Finance Director, under the direction of the City Manager. Employee accepts such appointment and employment pursuant to the terms of this Agreement.
Section 2.2. Secondary Employment/Conflict of Interest. Employee agrees to devote all productive time, ability, and attention to the City’s business to the extent necessary to perform the duties and responsibilities in a manner satisfactory to City.
A) During the Term, as defined in Section 2.5 of this Agreement, Employee shall not hold secondary employment or engage in activities which conflict with, or present the appearance or possibility of conflicting with, City’s business interests. As such, Employee agrees that Employee will notify the City Manager in writing if Employee accepts secondary employment, so that the City may determine whether there is a conflict or potential conflict with the satisfactory performance of Employee’s duties and/or the best interest of the City. Employee has the right to volunteer for such nonprofit organizations as she may see fit, provided that such volunteer services do not interfere with the duties as Finance Director or conflict with, or present the appearance or possibility of conflicting with, the City’s business interests.
B) Employee shall not engage in any activity that is, or may create, a conflict of interest, prohibited contract, or that may create an incompatibility of office under state law. Prior to performing services under this Agreement, and annually thereafter, Employee must complete financial disclosure forms required by law.
Section 2.3. Exempt Employee. Typical general business hours for City employees are Monday through Friday, 8:00 AM to 5:00 PM. However, it is recognized by the Parties that Employee is an exempt employee for purposes of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). Employee shall not receive overtime or extra compensation for hours worked outside of the City’s general business hours, which are necessary to fulfill the duties of the Finance Director, unless otherwise provided in this Agreement.
Section 2.4. Duties/Schedule. The Finance Director’s daily and weekly work schedule shall vary in accordance with the work required to be performed.
The Finance Director position may include frequent attendance at evening meetings and frequent irregular hours as necessary to meet deadlines and achieve objectives. The City Manager recognizes that the Finance Director must devote a great deal of time outside normal office hours to business of the City and, to that
City of Atwater
Finance Director
Employment Agreement
end, will be allowed to take Administrative Leave, as defined in Section 4.4 of this Agreement, as she shall deem appropriate during said normal office hours, subject to notification and approval of the City Manager.
The Finance Director’s initial duties shall be as shown in the job description attached hereto as Exhibit A. Employee shall perform Employee’s duties under this Agreement pursuant to the laws of the State of California and applicable City Municipal Code, ordinances, and resolutions. Employee understands that Employee’s duties may be amended from time to time by the City Manager as necessary to meet the City’s needs. No modification or change in Employee’s responsibilities, duties or position shall otherwise change or revoke any other provision of this Agreement.
Unless otherwise specified in this Agreement, Employee shall be bound by all the policies, rules, and regulations of the City now in force and effect and applicable to Employee’s position, and by all such other applicable policies, rules and regulations as may be hereafter implemented and called to her notice and will faithfully observe and abide by the same. No such policy, rule or regulation shall alter, modify or revoke employee’s status as an at-will employee or any other provision of this Agreement.
Section 2.5. Term. The term of this Agreement shall be for three (3) years from the date of Appointment, August 28, 2023, (“Term”) subject to Section 5 of this Agreement. The City in its sole discretion, may extend the Term from time to time in increments of at least one (1) year. No later than one (1) month prior to the expiration of the Term, the City shall provide written notice to Employee as to whether the City intends to extend the Term. Termination of this Agreement shall be in accordance with Section 5 below.
Section 3. At-Will Employment.
Section 3.1. At-Will. Employee is an at-will employee serving at the pleasure of the City Manager, as provided in Government Code section 36506.
Accordingly, the City Manager may terminate Employee’s employment at any time, with or without cause.
Section 3.2. No Property Right in Employment. Employee understands and agrees that the terms of employment are governed only by this Agreement and that no right of employment for any specific term is created by this Agreement.
Employee further understands that based on the “at-will” employment status, Employee acquires no property interest in employment by virtue of this Agreement, and that Employee is not entitled to due process for any disciplinary actions under the City’s personnel policies and rules.
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Finance Director
Employment Agreement
Section 4. Compensation and Benefits
Section 4.1 Finance Director Salary. Beginning August 28, 2023, Employee shall be compensated at Step 6 of Range 335a of the Salary Schedule (currently in the amount of $12,496.45 per month/$149,957.44 per year) for services performed as Finance Director. This position is exempt from any City furlough program. Employee’s performance shall be reviewed annually pursuant to the City’s Performance Evaluation Policy and Employee shall be eligible to have her salary adjusted annually thereafter as set forth in the Salary Schedule, consistent with the Mid Managers Group, or Department Director Group (if established), whichever provides the greater benefit to Employee.
Section 4.2. Review and Evaluation. The City Manager agrees to review and evaluate Employee’s performance of Employee’s duties as Finance Director, pursuant to the terms of this Agreement (“Review and Evaluation”), on not less than an annual basis and to provide Employee with a written performance review.
The annual Review and Evaluation shall be conducted on or about August 28th of each year, or at the City Manager’s discretion.
Section 4.3. Vehicle. During the term, or any extension thereof, the City will provide Employee with an assigned vehicle to be used to and from home and work and will cover the costs and expenses associated with said vehicle. In the event the Finance Director requests and is authorized to use a private vehicle for City business, she shall be reimbursed for mileage in accordance with City policies.
Section 4.4. Administrative Leave. It is recognized that Employee must devote a great deal of time outside the normal office hours to City business as Finance Director. To that end, Employee shall receive up to eighty (80) hours of administrative leave (“Administrative Leave”) per calendar year, to be used as needed, upon the approval of the City Manager. Approved but unused Administrative Leave may be cashed out annually at the discretion of the City Manager and only if budgeted funds are available to permit the cash out.
Administrative Leave is only available for use or cash out in the year in which it is given, has no other cash value, and may not be carried over into a subsequent year.
Section 4.5. Sick and Vacation Leave.
Section 4.5.1 Sick Leave.Employee shall accrue four (4) hours of sick leave each pay period over 24 pay periods a year. Employee shall be permitted to cash out up to ninety-six (96) hours of accrued and unused sick leave annually pursuant to City policy at the discretion of the City Manager and only if budgeted funds are available to permit the cash out. There is no cap on sick leave accruals.
If employee’s employment with the City terminates, sick leave shall be paid out pursuant to the City’s Paid Sick Leave Policy on the same terms and conditions as are offered to other City employees, consistent with the Mid Managers Group, or
City of Atwater
Finance Director
Employment Agreement
Department Director Group (if established), whichever provides the greater benefit to Employee.
Section 4.5.2. Vacation Leave. In recognition of Employee’s years of experience in Finance with a municipal government agency, Employee shall be credited with 40 hours of vacation leave on date of hire. Employee shall accrue
3.33 hours of vacation leave per pay period over 24 pay periods a year. Employee may cash out up to eighty (80) hours of accrued, unused vacation annually at the discretion of the City Manager and only if budgeted funds are available to permit the cash out. Accruals are capped at twice the annual accrual amount.
Section 4.6. Holidays. Employee shall be subject to the provisions governing Holidays as are set forth in the City’s Personnel Rules and Regulations.
Section 4.7. Medical, Dental and Vision.
4.7.1. Medical, Dental and Vision. During the Term of this Agreement, or any extension hereof, the City shall pay the premiums for Employee and qualified dependents’ for medical, dental and vision insurance on the same terms and conditions as are offered to other similarly situated City employees, consistent with the tier system utilized for the Mid Managers Group or Department Director Group (if established), whichever provides the greater benefit to Employee. Employee shall be responsible for the payment of any premiums not paid for by the City and all deductibles, co-payments and disallowed costs. Should Employee elect not to participate in the City’s medical plan or elect to enroll in medical coverage through a spouse, Employee shall be eligible for in-lieu payments in the amount set for the Mid Managers Group or Department Director Group (if established), whichever provides the greater benefit to Employee.
4.7.2 Medical Upon Retirement. If Employee is a qualified annuitant under the requirements of CalPERS and the effective date of retirement is less than one hundred and twenty (120) days after separation from employment with the City, Employee may elect to participate in the City’s medical insurance plans.
If qualified for enrollment, the City shall pay the premiums consistent with the tier system utilized for the Mid Managers Group or Department Director Group (if established), whichever provides the greater benefit to Employee at the time of Employee’s retirement. Employee shall be responsible for the payment of any premiums not paid for by the City and all deductibles, co-payments and disallowed costs. When Employee and qualified dependents become eligible for Medicare, the City’s medical insurance plan shall become secondary insurance and the City’s obligation to pay premiums as set forth in this Section shall be reduced accordingly.
4.7.3 Dental and Vision Upon Retirement. Upon Employee’s retirement from the City, Employee and eligible dependents may elect to remain on the City’s dental and/or vision coverage plans. Employee will be responsible for paying the
City of Atwater
Finance Director
Employment Agreement
full amount of the monthly premium amounts for Employee and eligible dependents, established by the City’s provider, as well as all deductibles, copayments, and disallowed costs. Said amounts are subject to change annually.
The City shall bill Employee on a monthly basis for the full amount of the monthly premiums. Non-payment will result in disenrollment of Employee and eligible dependents without the option to re-enroll.
Section 4.8. Retirement. The City participates in the California Public Employees’ Retirement System (CalPERS). CalPERS will make the determination if Employee is considered a “Classic” or “New Member” (as defined under Government Code section 7522.04), and Employee shall contribute based on the enrolled tier. Employee shall pay 100% of the employee contribution.
Section 4.9. Life Insurance and Accidental Death and
Dismemberment. During the term of this Agreement, or any extension hereof, the City shall pay 100% of all premiums per existing policy in place at time of agreement to cover the life insurance policy currently in place for the benefit of Employee.
Section 4.10. Disability. During the term of this Agreement, or any extension hereof, the City shall pay 100% of all premiums per existing policy in place at time of agreement to cover both short term and long-term disability benefits for the benefit of Employee.
Section 4.11. Unemployment. During the term of this Agreement, or any extension hereof, the City shall contribute to the Unemployment Insurance Program for the benefit of Employee, at no cost to Employee.
Section 4.12. Changes in Fringe Benefits or Working Conditions.
Except as otherwise provided herein, all provisions of the Rules and Regulations of the City relating to changes to fringe benefits and/or working conditions as they now exist, or hereinafter may be amended, shall also apply to Employee as they would to other similarly situated City employees, consistent with the policy for the Mid Managers Group or Department Director Group (if established), in addition to the benefits enumerated for the benefit of Employee as herein provided.
Section 4.13. Professional Development. Subject to available funds, the City agrees to pay the professional dues, subscriptions, travel, and other business expenses of Employee reasonably necessary for continued and full participation in national, state, and local associations, professional organizations, governmental groups and committees thereof for the good of the City in accordance with the approved budget.
Section 4.15 Expense Reimbursement. The City shall reimburse Employee for all sums necessarily incurred and paid by Employee in the
City of Atwater
Finance Director
Employment Agreement
performance of her duties, as approved by the City Manager. Employee shall submit a claim form or appropriate documentation to the City in compliance with City policies.
Section 5. Termination of Employment and Severance.
Section 5.1. Voluntary Resignation. Employee may resign at any time and agrees to give the City at least thirty (30) days advance written notice of the effective date of Employee’s resignation, unless the Parties otherwise agree in writing. If Employee retires from full-time public service with the City, Employee shall provide three (3) months advance written notice. During the notice period, all rights and obligations of the Parties under this Agreement shall remain in full force and effect. Promptly after the effective date of resignation or retirement, the City shall pay to Employee all salary and other compensation due and owing under this Agreement. In the event of voluntary resignation or retirement, Employee shall not be entitled to Severance, as set forth in Section 5.3 of this Agreement.
Section 5.2. Termination by City Manager. The City Manager may terminate this Agreement and remove Employee from her position as Finance Director at any time with or without cause. If Employee’s termination is based on charges of misconduct that publicly stigmatizes Employee’s reputation or impairs her ability to earn a living, or might damage her standing in a community, Employee may, within five (5) business days of the City Manager’s notice to Employee of his or her intent to terminate Employee’s employment, make a written request for a "name-clearing" hearing (as described in Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340 and its progeny) before the City Council in closed session. The "name-clearing" hearing is solely to provide Employee the opportunity to clear her name. The City Council may determine whether the allegations contained in the notice of termination are supported. If the City Council determines that the allegations are not supported, a decision shall be issued to reflect that Employee's termination was without fault. This decision will not, however, require that Employee be reinstated to her position. In the event Employee does not request a "name-clearing" hearing before the City Council, the City Manager’s decision to terminate will be effective by the close of business on the fifth (5th) day after the City Manager provided notice to Employee of his or her intent to terminate Employee’s employment. Should the Employee request a name clearing hearing within five (5) days, termination will still take effect after the fifth day and Employee will not be on paid status during this period.
Section 5.3. Termination With Severance. This provision only relates to Employee’s ability to receive severance pay pursuant to this Agreement and does not in any way impact Employee’s at-will status. In the event the City terminates Employee’s employment and this Agreement without Good Cause, as defined in Section 5.4, below, the Employee shall receive a sum equal to four (4) month’s Base Salary or Base Salary for remaining number of months on the Agreement’s term, whichever is less (“Severance”). Such Severance is subject to the
City of Atwater
Finance Director
Employment Agreement
restrictions of Government Code section 53260. Severance shall be paid in the same manner as to other similarly situated City employees unless otherwise agreed to by the City and Employee. Employee’s eligibility for Severance shall be expressly conditioned upon Employee executing a waiver and release agreement forever releasing and waiving any and all claims against the City, and its employees, elected officials, and agents, in a form acceptable to the City.
Employee shall not receive any Severance if she resigns, is terminated for cause, or if a waiver and release agreement is not executed by the parties.
Section 5.4. Termination Without Severance. This provision only relates to Employee’s ability to receive severance pay pursuant to this Agreement and does not in any way impact Employee’s at-will status. The City may at any time immediately terminate this Agreement and Employee’s employment for Good Cause, as defined below. If Employee is terminated for Good Cause, the City shall not be required to pay any Severance under this Agreement, and the City shall have no obligation to Employee beyond those benefits accrued as of Employee’s last day of employment and those the City is obligated to provide under federal or state law.
“Good Cause” for purposes of this Agreement is defined as the following:
1. Conviction of a felony;
2. Disclosing confidential or protected information of the City;
3. Misconduct or gross carelessness;
4. Unjustifiable and willful neglect of the duties described in this Agreement or Employee’s job description;
5. Mismanagement;
6. Dishonesty;
7. Failure to perform Employee’s duties to the standard set by the City, as determined by the City Manager,
8. Any conduct which violates the applicable provisions of the City’s personnel policies, rules or regulations;
9. Repeated or protracted unexcused absences from the Employee’s office and duties;
10. Conduct that in any way has a direct, substantial, and adverse effect on the City’s reputation or the Administration Department whether during or outside business hours;
11. Violation of federal, state, or City discrimination laws;
12. Refusal to take or subscribe any oath or affirmation which is required by law;
13. Employee’s disability resulting in her inability to perform the essential functions of her job, which the City is unable to reasonably accommodate without placing an undue burden on City business operations;
14. Engaging in other employment or activities which conflict with, or present the appearance or possibility of conflicting with, City’s legitimate business interests; or
City of Atwater
Finance Director
Employment Agreement
15. Substance abuse which adversely affects performance of Employee’s duties.
The City Manager may also place Employee on paid or unpaid investigatory leave during the Term of this Agreement.
Section 6. Notices. Any notice or communication required hereunder between the City and Employee must be in writing and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express, UPS, or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed.
If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day, or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered, as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
Such notices or communications shall be given to the Parties at their addresses set forth below:
If to Employee: City of Atwater
Attn: Anna B. Nicholas
750 Bellevue Road
Atwater, California 95301
cc: Employee’s home address on file
If to the City: City of Atwater
Attn: City Manager
1160 5th Street
Atwater, California 95301
Section 7. Indemnification. The City shall defend, hold harmless, and indemnify Employee against any tort, personnel, civil rights, or professional liability claim or demand or other legal action, whether groundless or otherwise, arising
City of Atwater
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Employment Agreement
out of an alleged act or omission occurring in the performance of Employee’s duties as Finance Director in accordance with the California Government Claims Act (Government Code section 810 et seq.) and shall provide a defense to Employee in accordance with Government Code sections 995-996.6. The City may decline to defend or indemnify Employee only as permitted by the Government Code. City may compromise and settle any such claim or suit and pay the amount of any resulting settlement or judgment; provided, however, the City’s duty to defend and indemnify Employee shall be contingent upon Employee’s good faith cooperation with such defense. In the event the City provides paid leave to the Employee pending an investigation or funds for a legal criminal defense pursuant to this Section, Employee shall reimburse the City for the amount of such paid leave or cost of the legal criminal defense, if Employee is convicted of a crime involving an abuse of office or position, as provided by Government Code sections 53243-53243.1. Also, if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City if Employee is convicted of a crime involving an abuse of his or her office or position as provided in Government Code section 53243.2-53243.4
Section 8. Bonding. The City shall bear the full cost of any fidelity or other bonds required of Employee under any law or ordinance.
Section 9. General Provisions
9.1. Modification of Agreement. This Agreement may be
supplemented, amended, or modified only by a writing signed by the City and Employee.
9.2. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the Parties and supersedes all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement.
9.3. Severability of Agreement. If a court or an arbitrator of competent jurisdiction holds any section of this Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining sections of this Agreement shall not be affected.
9.4. Authority. All Parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement and the names, titles, and capacities herein stated on behalf of any entities, persons, states, or firms represented or purported to be represented by such entities, persons, states, or firms and that all former requirements necessary or required by state or federal law in order to enter into this Agreement had been fully complied with. Further, by
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entering into this Agreement, neither Party hereto shall have breached the terms or conditions of any other contract or agreement to which such Party is obligated, which such breach would have a material effect hereon.
9.5. Headings. The headings in this Agreement are included for convenience only, and neither affect the construction or interpretation of any section in this Agreement nor affect any of the rights or obligations of the Parties to this Agreement.
9.6. Necessary Acts and Further Assurances. The Parties shall, at their own cost and expense, execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.
9.7. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
9.8. Waiver. No covenant, term, or condition, or the breach thereof, shall be deemed waived, except by written consent of the Party against whom the waiver is claimed, and any waiver of the breach of any covenant, term, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition.
9.9. Counterparts. This Agreement may be executed in counterparts, including by signatures transmitted electronically or by fax, and all so executed shall constitute an agreement which shall be binding upon the Parties hereto, notwithstanding that the signatures of all Parties and Parties’ designated representatives do not appear on the same page.
9.10. Venue. Venue for all legal proceedings shall be in the Superior Court in and for the County of Merced in the State of California.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Employee and City as of the date of the Agreement set forth above. [SIGNATURE PAGE TO FOLLOW]
City of Atwater
Finance Director
Employment Agreement
CITY:
City of Atwater, a municipal corporation
of the State of California
By:
Lori Waterman, City Manager
Date Signed:
EMPLOYEE:
By:
Anna B. Nicholas, an individual
Date Signed:
Approved as to Form:
By:
Frank Splendorio, City Attorney
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
August 14, 2023
TO: Mayor and City Council
FROM: Jana Sousa, Human Resources Director
PREPARED
BY:
Jana Sousa, Human Resources Director
SUBJECT: Approving Second Amendment to City Manager Employment Agreement (Human Resources Director Sousa)
RECOMMENDED COUNCIL ACTION
Motion to approve the Second Amendment to City Manager Employment Agreement, in a form approved by the City Attorney, with Lori Waterman and authorizes and directs the Mayor to execute the Amendment on behalf of the City; or Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
BACKGROUND:
On January 11, 2021, the First Amendment to the City Manager Employment Agreement was presented to the City Council pursuant to California Government Code Sections 53260-53264, which requires public agencies to ratify all contracts of employment with chief executive officers in an open session of the governing body. The First Amendment to the City Manager Employment Agreement contained the following provisions:
• The Agreement shall expire on December 31, 2023.
• The City Manager's anniversary date for performance review and evaluation shall be December 24th of each year.
ANALYSIS:
The Second Amendment to the City Manager Employment Agreement makes the following changes to the Agreement:
• The Agreement shall expire on December 31, 2024.
• The City Manager shall assist, as may be requested, and fully cooperate with the City Council in the recruitment/succession planning for the next City Manager.
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
II. FISCAL IMPACTS:
Any applicable increases in fiscal impact associated with this item will be included with the Mid-Year Report. This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
This item has been reviewed by the City Attorney's Office.
IV. EXISTING POLICY:
This item is consistent with goal numbers one (1) and four (4) of the City's Strategic Plan: to ensure the City's continued financial stability and to optimize organizational structure, respectively.
V. ALTERNATIVES:
N/A
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
Pursuant to California Government Code Sections 53260-53264, the purpose of ratifying employment agreements and amendments to said agreements is to provide the public the opportunity to provide comments prior to ratification by the City Council.
VIII. ENVIRONMENTAL REVIEW:
This item is not a "project" as defined under Section 21065 of the Public Resources Code in that it would not directly or foreseeably indirectly significantly impact the physical environment and is therefore not subject to analysis.
IX. STEPS FOLLOWING APPROVAL:
Upon City Council's approval of the Second Amendment to the City Manager Employment Agreement, the Mayor shall execute the Amendment on behalf of the City.
The City Clerk department shall maintain an original copy in the City Manager's Employment Agreement file.
Submitted and approved by:
Jana Sousa, Human Resources Director
Attachments:
Agenda Report - Page 3
1. Draft Waterman Lori Second Amendment to City Manager Employment Agreement
Second Amendment to Employment Agreement
Between Lori Waterman and the City of Atwater
SECOND AMENDMENT TO
CITY MANAGER EMPLOYMENT AGREEMENT
This SECOND AMENDMENT (“Second Amendment”) to the City Manager EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of August 14, 2023 (“Effective Date”), by and between the CITY OF ATWATER, a municipal corporation of the State of California (“City”), and LORI WATERMAN (“Employee”). The City and Employee shall be referred to hereinafter individually as a “Party” and collectively as “Parties”.
RECITALS
A. The Parties entered into the Agreement on August 27, 2018, which provides the terms and conditions of Employee’s employment.
B. The Parties entered into a First Amendment to the Agreement on December 14, 2020, extending the term to December 31, 2023.
C. The parties now desire to amend the terms and conditions of the Agreement to extend the term for one year and provide language regarding Employee’s successor.
AGREEMENT
Section 1. Incorporation of Recitals. The recitals set forth above are incorporated herein by this reference and made a part of this Second Amendment.
Section 2. Effect of Original Agreement. Except as otherwise provided herein, all provisions, defined terms, and obligations in the original Agreement, as amended, remain in full force and effect. The Parties agree that they continue to be bound by all terms of the Agreement as amended, except as modified by this Second Amendment. All capitalized terms used in this Second Amendment, which are not otherwise defined in this Second Amendment, shall have the meanings given to such terms in the Agreement.
Section 3. Amendments. The Agreement is amended as follows:
1. Section 2.5 “Term” is amended to read as follows:
Section 2.5 Term. The term of this Agreement shall be extended through and including December 31, 2024.
Section 4. Cooperation Clause. In consideration of this Second Amendment, Employee agrees she shall assist, as may be requested, and fully cooperate with the City Council in the recruitment/succession planning for the next City Manager, which is intended to commence at the end of the term of this Second Amendment.
Second Amendment to Employment Agreement
Between Lori Waterman and the City of Atwater
Section 5. Integrated Agreement. The Agreement, as amended and as now modified by this Second Amendment, contains all of the agreements of the Parties and all previous understandings, negotiations, and agreements are integrated in the Agreement.
Section 6. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Second Amendment are declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Second Amendment, which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties herein.
Section 7. Counterparts. This Second Amendment may be executed simultaneously and in several counterparts each of which shall be deemed an original, but which together shall be deemed one and the same instrument.
Section 8. Authority. All Parties to this Second Amendment warrant and represent that they have the power and authority to enter into this second Amendment and the names, titles, and capacities herein stated on behalf of any entities, persons, states, or firms represented or purported to be represented by such entities, persons, states, or firms and that all former requirements necessary or required by state or federal law in order to enter into this Second Amendment have been fully complied with.
Section 9. Document Preparation. The Second Amendment will not be construed against the Party preparing it but will be construed as if prepared by all Parties.
Section 10. Advice of Legal Counsel. Each Party acknowledges that it has reviewed this Second Amendment with its own legal counsel and, based upon the advice of that counsel, freely entered into this Second Amendment.
Section 11. Attorney’s Fees and Costs. If any action at law or in equity, including action for declaratory relief, is brought to enforce or interpret provisions of this Second Amendment, the prevailing Party shall be entitled to reasonable attorney’s fees and costs, which may be set by the court in the same action, or in a separate action brought for that purpose, in addition to any other relief to which such Party may be entitled.
[SIGNATURES ON THE FOLLOWING PAGE]
Second Amendment to Employment Agreement
Between Lori Waterman and the City of Atwater
IN WITNESS WHEREOF, this Second Amendment has been entered into by and between Employee and the city as of the date of the Agreement set forth above.
CITY: EMPLOYEE:
City of Atwater, a California municipal
corporation
By: ___________________________ By:________________________________ Mike Nelson, Mayor Lori Waterman, Employee
Date Signed: ________________ Date Signed:________________ Approved as to form:
By: ____________________________
Frank Splendorio
City Attorney
GOVERNING BOARD MEETING SUMMARY
July 20, 2023
Directors Present: Chair Josh Pedrozo (virtual), Vice Chair-Director Paul Llanez, Director April Hogue, Director Matt Serratto, Director Gurpal Samra for Jose Moran, Director Lloyd Pareira, Director Scott Silveira, Director Pat Nagy, Director Mike Nelson Directors Absent: Director Rodrigo Espinoza, Director Daron McDaniel The MCAG Governing Board:
• Adopted a policy update and directed staff to release a Call for Projects for $4.75 million of Congestion Mitigation and Air Quality (CMAQ) funding and $900,000 in Carbon Reduction Programs (CRP) funding available for programming. The call for projects will be released July 24, 2023 with a deadline of September 8, 2023.
• The Board authorized an increase of $12,000 to the Executive Director’s budget authority for the purchase of the agency’s second alternative fuel vehicle and amended the FY 23/24 budget accordingly. The agency successfully purchased a fully electric Chevy Bolt ($31,536) in FY 22/23, but required the additional funding to purchase the Hyundai Santa Fe Hybrid (~$50,000). $40,000 of the total cost of both vehicles will be offset by a grant from the San Joaquin Valley Air Pollution Control District.
The TJPA Governing Board:
• Adopted the FY 2023/24 capital budget totaling $23,885,897. New capital projects for FY 2023/24 include replacing 13 cutaway buses for fixed-route, paratransit, and MicroBus services, and the modernization of TJPA’s farebox collection system which will allow TJPA to collect various types of ridership data and will provide fare collection options for passengers including contactless payment.
OTHER NOTABLE ITEMS
• The Bus had its first all-electric bus on site at the Governing Board meeting for Directors and the public to view. Staff is planning a media event for the first day the bus will go into service – details TBD.
• The Bus is offering free service all summer (through September) on all services countywide.
• The deadline for Measure V East and West Side Regional Project funding requests is August 1st. • The Citizens Advisory Committee has several vacancies. MCAG is seeking candidates from a variety of backgrounds to apply. Please contact Stacie Guzman or Mary-Michal Rawling for details.
• MCAG is hosting Caltrans Director Tony Tavares August 31st for a tour of regional projects. • Caltrans District 10 update:
o Federal funding opportunity with the Reconnecting Communities Program - deadline to apply is September 20th.
o Federal funding opportunity with the Protect Program – deadline is August 18th. o Caltrans draft Carbon Reduction Strategy is now on the Caltrans’ website for review and public comment. They are accepting comments at [email protected] until August 18th.