SPECIAL COUNCIL MEETING AGENDA
Eastvale City Hall Council Chambers
12363 Limonite Avenue, Suite 900, Eastvale, CA 91752
Monday, March 28, 2022
Special Council Meeting:
3:30 PM
City Councilmembers
Clint Lorimore, Mayor
Todd Rigby, Mayor Pro Tem
Christian Dinco, Councilmember
Brandon Plott, Councilmember
Jocelyn Yow, Councilmember
Bryan Jones, City Manager
Erica Vega, City Attorney (Contract Legal Services)
Marc Donohue, City Clerk/Communications Director
This Agenda contains a brief general descrip*on of each item to be considered. Except as otherwise provided by law, no ac*on or direc*on shall be taken on any item not appearing on the following Agenda. Unless legally privileged, all suppor*ng documents, including staff reports, and any wri*ngs or documents provided to a majority of the City Council a0er the pos*ng of this agenda are available for review at Eastvale City Hall, 12363 Limonite Avenue, Eastvale, CA 91752 or you may contact the City Clerk’s Office, at (951) 361-0900 Monday through Thursday from 7:30 a.m. to 5:30 p.m. and available online at www.eastvaleca.gov
.
In accordance with AB 361 (Government Code sec*on 54953(e)), members of the City Council, the public, and others may aBend and par*cipate in this mee*ng remotely via GoToWebinar. If you wish to view the mee*ng and/or make public comment through GoToWebinar you may do so by logging on to GoToWebinar at the above stated date and *me via the following link:
https://bit.ly/3IjMS2l
. Members of the public may provide public comment by sending comments to the City Clerk’s Office by email at
[email protected]
or u*lize the “raise your hand” func*on in GoToWebinar to provide oral public comment during the designated public comment periods. Staff will monitor emails to the extent possible during the mee*ng. Email comments will be read into the record, with a maximum allowance of 3 minutes per individual comment, subject to the Council’s discre*on to reduce the amount of *me for public comments. Email comments received a0er the agenda item is heard will not be read into the record.
In the event of a disrup*on to the GoToWebinar broadcast of the mee*ng, or the ability to receive public comment through GoToWebinar, the meeting will be recessed until remote public access is restored.
In compliance with the Americans with Disabili*es Act, if you need special assistance to par*cipate in this mee*ng, you should contact the City Clerk’s Office at (951) 361-0900.
Regular mee*ngs are recorded and made available on the City’s website at www.eastvaleca.gov
. Mee*ng recordings are uploaded
to the City’s website within 24 hours (unless otherwise noted) after the completion of the meeting. 1 1.
CALL TO ORDER
2. ROLL CALL
3. CLOSED SESSION PUBLIC COMMENT
Any member of the public may address the Council on items within the Council’s subject maer jurisdicon, but which are not listed on this agenda during PUBLIC COMMENTS. However, no acon may be taken on maers that are not part of the posted agenda. We request comments made on the agenda be made at the me the item is considered and that comments be limited to three minutes per person with a maximum of six minutes (me may be donated by one person). Please address your comments to the Council and do not engaged in dialogue with individual Council Members, City staff, or members of the audience. Blue speaker forms are available at the front table to the entrance of Council Chambers.
4. CLOSED SESSION ITEM(S)
5. CITY COUNCIL BUSINESS
5.1. Appointment of Interim City Manager and Approval of Employment Agreement
Submitted by: Erica Vega, City Attorney
RECOMMENDED ACTION(S):
It is recommended that the City Council adopt a resolution appointing Henry Garcia to serve as Interim City Manager commencing March 29, 2022, due to the resignation of the City Manager and approving an Interim City Manager Employment Agreement.
6. ADJOURNMENT
The next regular mee*ng of the Eastvale City Council is scheduled for Wednesday, April 13, 2022, at 6:30 p.m. at Eastvale City Hall Council Chambers, 12363 Limonite Avenue, Suite 900, Eastvale, CA 91752.
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AFFIDAVIT OF POSTING
I hereby certify under penalty of perjury under the laws of the State of California, that the foregoing Agenda was posted at the following locations: City Hall, 12363 Limonite Avenue, Suite 910 and website of the City of Eastvale (
www.eastvaleca.gov
,) not less than 24 hours prior to the meeting.
2 ______________________________________________________ Marc A. Donohue, MMC
City Clerk
3 AGENDA STAFF REPORT
City Council Meeting
CITY COUNCIL BUSINESS
Agenda Item No. 5.1
March 28, 2022
Appointment of Interim City Manager and Approval of
Employment Agreement
Prepared By:
Erica Vega, City Attorney
Recommended Action(s)
It is recommended that the City Council adopt a resoluon appoinng Henry Garcia to serve as Interim City Manager commencing March 29, 2022, due to the resignaon of the City Manager and approving an Interim City Manager Employment Agreement.
Summary
With the resignaon of City Manager Jones, there are acons that are required to be taken by the City with respect to Acng City Manager Henry Garcia's employment in order to stay in compliance with CalPERS regulaons applicable when a member of CalPERS, such as the City, hires a CalPERS reree, such as Garcia, to fill a posion temporarily. Garcia has been employed pursuant to the CalPERS regulaons that allow the City to appoint a reree to fill a posion temporarily during an employee's leave of absence. For Garcia to connue to fill the city manager role temporarily, the City must comply going forward with the CalPERS regulaons that allow the City to appoint a reree to fill a position during a vacancy in the position.
The proposed resoluon meets CalPERS requirements for appoinng a reree to a vacant posion, and also includes a new Employment Agreement between the City and Garcia that will supersede the exisng Employment Agreement. The changes to the Employment Agreement consist of small edits to reflect the change circumstances surrounding Garcia's employment (e.g., the city manager posion being vacant vs. leave of absence).
Furthermore, a change in tle is proposed for Mr. Garcia from "acng" to "interim" city manager. "Acng" generally refers to an individual who is temporarily serving in a posion that is occupied by another. "Interim" generally refers to an individual who is 12363 Limonite Avenue | Suite 910 | Eastvale, CA 91752 951.361.0900 |
eastvaleca.gov
4 temporarily serving in a vacant position.
Background
The City Council appointed Henry Garcia to serve as Acng City Manager at its meeng on January 12, 2022, while the City Manager was on a leave of absence. The City Manager tendered his resignation to the City Council, and that position will be vacant starting March 29, 2022.
Environmental
Not applicable.
Strategic Plan Action - Priority Level: N/A
| Target #: N/A
| Goal #: N/A
Not applicable.
Fiscal Impact
There is no fiscal impact associated with approving this resoluon and the new Employment Agreement. No changes are proposed to the compensaon provisions in the Employment Agreement. Garcia will connue to be paid an hourly rate of $111.76 per hour with no benefits. The hourly rate is established by a formula set forth in the laws applicable to CalPERS rerees working for CalPERS member agencies a>er rerement, and the City has no discreon to modify the hourly rate to be paid to Garcia. General Fund budget for the City Manager authorized posion will be ulized for the 2021-22 fiscal year; budget appropriaons for the following fiscal year will be made during the 2022-23 fiscal year budget adoption.
Prior City Council/Commission Action
January 12, 2022 - City Council approved an employment agreement with Henry Garcia for acng city manager services while City Manager Jones was on a leave of absence.
March 23, 2022 - City Council accepted the resignaon of City Manager Jones effecve end of day March 28, 2022.
Attachment(s)
Attachment 1 - Resolution Appointing Interim City Manager
Attachment 2 - Exhibit A to Resolution - Employment Agreement for Interim City Manager
12363 Limonite Avenue | Suite 910 | Eastvale, CA 91752
951.361.0900 |
eastvaleca.gov
5 RESOLUTION NO. 22-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EASTVALE, CALIFORNIA,
APPOINTING HENRY GARCIA AS INTERIM CITY MANAGER
WHEREAS, on January 12, 2022, the City Council adopted Resolution No. 22-07 approving the hiring of CalPERS retiree Henry Garcia to serve as Acting City Manager pursuant to the provision of the Public Employees’ Retirement Law that permit the City to employ a CalPERS retired annuitant if the person has skills needed to perform work of a limited duration due to a leave of absence; and
WHEREAS, Government Code section 21221(h) of the Public Employees’ Retirement Law permits the governing body to appoint a CalPERS retiree to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that such appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and WHEREAS, the City Council of the City of Eastvale (“City”) desires to appoint Henry Garcia as Interim City Manager for the City under Gov. Code section 21221(h), effective March 29, 2022; and
WHEREAS, the employment agreement between Garcia and the City approved on January 12, 2022 has been amended to reflect the change from acting to interim city manager and revised employment agreement is attached hereto as Exhibit “A,” and WHEREAS, as required by the Public Employees’ Retirement Law, the City Council certifies the following:
The appointment of Henry Garcia as interim city manager shall only be made once; Henry Garcia has not and will not receive a Golden Handshake or any other retirement-related incentive;
The compensation to be paid to Henry Garcia complies with the requirement that the compensation paid to retirees cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate; and Henry Garcia has not and will not receive any other benefit, incentive, compensation in lieu of benefit, or other form of compensation in addition to this hourly pay rate.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EASTVALE DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
SECTION 1. The City Council hereby certifies the nature of the employment of Henry Garcia as Interim City Manager as described in the recitals above and incorporated herein by reference. The City Council finds that it is necessary to fill the critically needed position of Interim City Manager for the City of Eastvale because the current City Manager has tendered his 6 resignation effective March 29, 2022, thus leaving a critical position vacant; and the orderly functioning of the City to achieve compliance with the Municipal Code, relevant state laws and the direction of the Eastvale City Council requires a capable and competent person be in place as the Interim City Manager.
SECTION 2. The City Council hereby appoints Henry Garcia as Interim City Manager and approves the revised Employment Agreement between the City and Henry Garcia attached hereto as Exhibit “A” and authorizes the Mayor to execute the revised Employment Agreement.
PASSED, APPROVED AND ADOPTED this 28th day of March, 2022. __________________________________________
Clint Lorimore
Mayor
APPROVED AS TO FORM: ATTEST:
__________________________________________ __________________________________________ Erica Vega Marc A. Donohue, MMC
City Attorney City Clerk/Communications Director
7 STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE ) §
CITY OF EASTVALE )
I, Marc A. Donohue, City Clerk/Communications Director of the City of Eastvale, California, do hereby certify that the foregoing City Council Resolution No. 22-XX, was duly adopted by the City Council of the City of Eastvale, California, at a meeting held on the 28th day of March, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________________
Marc A. Donohue, MMC
City Clerk/Communications Director
8 RIV #4877-2593-9720 v2
1 EMPLOYMENT AGREEMENT
For
INTERIM CITY MANAGER SERVICES
This Employment Agreement (“Agreement”) is made and entered into this 29th day of March, 2022 (“Effective Date”), by and between the CITY OF EASTVALE, a municipal corporation authorized and existing under the laws of the State of California (hereinafter referred to as “CITY”) and HENRY GARCIA (“GARCIA”), an individual, on the following terms and conditions. CITY and GARCIA may be collectively referred to herein as the “Parties.” This Agreement is made in consideration of the following facts, among others.
RECITALS
A. CITY desires to employ the services of GARCIA as its Interim CITY Manager, temporarily, to carry out the duties and responsibilities of City Manager as provided for by the Eastvale Municipal Code, in consideration of and subject to the terms, conditions, and compensation set forth in this Agreement.
B. CITY has an immediate need for an Interim City Manager position involving specialized skills and training and which is critically necessary to the on-going duties and functions of the CITY due the City Manager resigning his employment with the City effective March 29, 2022.
C. GARCIA represents that he is a retired annuitant and person receiving a benefit from and enrolled in the California Public Employees’ Retirement System (“CalPERS”) within the meaning of Government Code §§ 7522.56 and 21221(h).
GARCIA acknowledges that he is restricted to working no more than a combined 960 hours for CITY, a state agency, or other CalPERS contracting agencies (collectively “CalPERS Agencies”) during CITY’s 2021-2022 fiscal year, or any subsequent fiscal year, and that his compensation is statutorily limited as provided in Government Code § 7522.56(d). GARCIA represents, and by execution of this Agreement, certifies that he has not received any unemployment compensation based on prior retired annuitant employment with any CalPERS Agencies during the 12-month period preceding the effective date of this Agreement. GARCIA further represents his CalPERS retirement date became effective prior to the 180-day period preceding the effective date of this Agreement; that he has not received a retirement incentive upon retirement within the meaning of Government Code § 7522.56(g), and that he has attained normal retirement age within the meaning of Government Code § 21220.5. GARCIA further represents that he has not been previously appointed as an interim employee by the CITY to a vacant position during the recruitment for a permanent replacement.
D. GARCIA desires to accept employment as Interim City Manager in consideration of and subject to the terms, conditions, and compensation set forth in this Agreement.
E. CITY has determined that it is necessary to hire GARCIA by virtue of his significant experience as a City Manager.
9 RIV #4877-2593-9720 v2
2 F. CITY and GARCIA entered into an Employment Agreement on January 12, 2022, to serve as Acting City Manager while the City Manager was on a leave of absence.
It is the intent of the parties that this Agreement for Interim City Manager Services supersede the prior agreement for Acting City Manager Services as of the Effective Date.
OPERATIVE PROVISIONS
In consideration of the promises and covenants contained herein, the parties agree as follows:
1. Position and Duties.
1.1 Position. GARCIA accepts employment with CITY as its Interim City Manager and shall perform all functions, duties and services set forth in Section 1.4 [Duties] of this Agreement. GARCIA shall provide service at the direction and under the supervision of the City Council. It is the intent of the parties that GARCIA, as the Interim City Manager, shall keep the City Council fully apprised of all significant ongoing operations of City. Toward that end, GARCIA shall report directly to the City Council and will periodically, or as may be otherwise specifically requested by the City Council, provide status reports to the City Council on his activities and those of CITY.
1.2 Term. GARCIA shall commence the performance of his duties as the Interim City Manager on March 29, 2022 (“Commencement Date”). This Agreement shall expire as of the first of the following to occur: (i) upon the hiring of a permanent City Manager; (ii) upon GARCIA working his 960 th hour (for CITY or any other CalPERS Agencies) during CITY’s 2021-2022 fiscal year, or any subsequent fiscal year, as a retired annuitant; or (iii) upon termination of the Agreement by either GARCIA or CITY as provided in Section 4 [Termination] of this Agreement.
1.3 At-Will. GARCIA acknowledges that he is an at-will, temporary employee of CITY who shall serve at the pleasure of the City Council at all times during the period of his service hereunder. The terms of CITY’s personnel rules, policies, regulations, procedures, ordinances, and resolutions (collectively “Personnel Policies”), as they may be amended or supplemented from time to time, shall not apply to GARCIA, and nothing in this Agreement is intended to, or does, confer upon GARCIA any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Council to terminate his employment, except as is expressly provided in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of GARCIA, as provided in Section 1.2 [Term] or Section 4 [Termination]. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of GARCIA to resign at any time from this position with CITY, subject only to the provisions set forth in Section 1.2 [Term] or Section 4 [Termination] of this Agreement.
This at-will Employment Agreement shall be expressly subject to the rights and obligations of CITY and GARCIA, as set forth in Section 1.2 [Term] or Section 4 [Termination] below.
10 RIV #4877-2593-9720 v2
3 1.4 Duties. GARCIA shall serve as the Interim City Manager and shall be for the term of this Agreement vested with the powers, duties and responsibilities of the City Manager as set forth in ordinances and resolutions of the CITY, including without limitation, those set forth in the Eastvale Municipal Code and to perform other legally permissible and proper duties and functions as the City Council may from time to time assign. It is the intent of the City Council for the Interim City Manager to function as the chief executive officer of CITY’s organization. GARCIA shall provide such other services as are customary and appropriate to the position of Interim City Manager. GARCIA shall devote his best efforts and attention to the performance of these duties.
1.5 Hours of Work . GARCIA shall devote the time necessary to adequately perform his duties as Interim City Manager. The parties anticipate that GARCIA will work approximately thirty (30) to thirty-five (35) hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special City Council meetings, attendance at such community events and CITY functions as the Council may direct. Toward that end, GARCIA shall be allowed reasonable flexibility in setting his own office hours, provided the schedule of such hours provides reasonable availability to the City Council, City staff, and members of the community during regular CITY business hours and for the performance of his duties and of CITY business.
1.6 Other Activity. In accordance with Government Code Section 1126, during the period of his employment, GARCIA shall not accept, without the express prior written consent of the City Council, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity, whether or not to pecuniary advantage, that is or may be competitive with CITY, that might cause a conflict-of-interest with CITY, or that otherwise might interfere with the business or operation of CITY or the satisfactory performance of GARCIA’s duties as Interim City Manager. Notwithstanding the foregoing, the City Council acknowledges that at the time of the execution of this Agreement GARCIA has existing business commitments that GARCIA intends to fulfill and City Council agrees that fulfilling these commitments does not violate this Section
1.6. GARCIA will ensure that his existing business commitments do not interfere with his ability to perform his duties as Interim City Manager.
2. Compensation.
2.1 Rate of Pay. For all services performed by GARCIA as the Interim City Manager under this Agreement, CITY shall pay GARCIA compensation at the rate One Hundred Eleven Dollars and Seventy-Six Cents ($111.76) per hour according to the payroll schedule in place for CITY employees subject to the limitations provided below.
2.2 Compliance with CalPERS Requirements. It is the intent of the parties to compensate GARCIA only to the extent permitted under Government Code §§ 21221(h) and 7522.56(d) and corresponding CalPERS regulations and policy statements.
The parties acknowledge and agree that the rate of pay set forth above does not exceed the salary limitations established by CalPERS based on the salary as set forth in the CITY’s publicly available salary schedule. The Rate of Pay set forth above is based on 11 RIV #4877-2593-9720 v2
4 the salary limitations established by CalPERS. The annual base salary for the position of City Manager as listed on a publicly available pay schedule is Two Hundred Thirty-Two Thousand Four Hundred Seventy Dollars ($232,470.00). The Rate of Pay is calculated by taking the monthly base salary of Nineteen Thousand Three Hundred Seventy-Two Dollars and Fifty Cents ($19,372.50) and dividing it by 173.333 to equal an hourly rate of One Hundred Eleven Dollars and Seventy-Six Cents ($111.76).
2.2.1 Recording and Reporting of Hours Worked. GARCIA will comply with all applicable CalPERS regulations governing employment after retirement including recording and reporting to CITY all hours worked for CITY. CITY shall be responsible for all reporting obligations to CalPERS of GARCIA’S hours worked. Additionally, GARCIA shall keep CITY continually apprised of any hours worked by GARCIA for other CalPERS Agencies during the term of this Agreement.
2.3 Benefits.
2.3.1 No Benefits . GARCIA shall not receive from CITY any benefits CITY commonly provides to its employees including, without limitation, health, dental, or vision insurance coverage, life insurance, employee assistance programs, and similar benefits. The CITY will make no contribution on behalf of GARCIA to any tax-deferred retirement plans.
3. Vacation and Leave.
3.1 No Leave. GARCIA and CITY agree that GARCIA shall not be provided or accrue any personal time off, vacation, sick leave, administrative leave, paid holidays or similar leave benefits.
4. Termination.
4.1 By CITY . This Agreement may be terminated by CITY for any reason.
CITY’s only obligation in the event of such termination will be payment to GARCIA of all compensation then due and owing as set forth in Section 2.1 [Rate of Pay] up to and including the effective date of termination. However, this Agreement may be terminated immediately if necessitated by changes to CalPERS statutory or regulatory requirements.
4.2 By GARCIA . This Agreement may be terminated by GARCIA for any reason thirty (30) days after notice in writing to CITY of such termination. CITY shall have the option, in its complete discretion, to make GARCIA’s termination effective at any time prior to the end of such period, provided CITY pays GARCIA all compensation as set forth in Section 2.1 [Rate of Pay] then due and owing him through the last day actually worked.
4.3 No Notice for Expiration. Nothing in this Section 4 [Termination] shall be construed to require either party to give advance written notice in order for the Agreement to expire as set forth in Section 1.2 [Term].
12 RIV #4877-2593-9720 v2
5 4.4 Termination Obligations . GARCIA agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to CITY and shall be returned promptly to CITY upon termination of GARCIA’s employment. GARCIA’s obligations under this subsection shall survive the termination of his employment and the expiration of this Agreement.
4.5 No Benefits Upon Termination. GARCIA agrees that he shall be entitled to no benefits upon termination.
5. City Council Commitments. Except for the purpose of inquiry, the City Council and its members shall deal with all subordinate CITY employees, officers, contractors, and consultants solely through the Interim City Manager or the Interim City Manager’s designee, and neither the City Council nor any member thereof shall give direction to any subordinate of the Interim City Manager, either publicly or privately. No member of the City Council will order the appointment or removal of any person to any office or employment under the supervision and control of the Interim City Manager. Neither the City Council nor any of its members shall interfere with the execution of the powers and duties of the Interim City Manager, as specified in the Eastvale Municipal Code, this Agreement, or any other lawfully adopted and authorized document.
6. Proprietary Information. “Proprietary Information” is all information, including confidential attorney/client privileged communications, and any idea pertaining in any manner to the business of CITY (or any CITY affiliate), its employees, clients, consultants, or business associates, which was produced by any employee or consultant of CITY in the course of his/her employment or otherwise produced or acquired by or on behalf of CITY. All Proprietary Information not generally known outside of CITY’s organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” During his employment by CITY, GARCIA shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY and as is or may be necessary to perform his job responsibilities under this Agreement. Following termination, GARCIA shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of CITY. GARCIA’s obligations under this Section shall survive the termination of his employment and the expiration of this Agreement.
7. Conflict Of Interest.
7.1 GARCIA represents and warrants to CITY that he presently has no interest, and represents that he will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or interfere in any way with performance of his services under this Agreement.
7.2 During the term of this Agreement, GARCIA shall comply with the CITY Conflict of Interest Code and shall comply with all requirements of law, including but not 13 RIV #4877-2593-9720 v2
6 limited to, Sections 87100 et seq., 1090 and 1125 of the Government Code, and all other similar statutory and administrative rules.
8. General Provisions.
8.1 Recitals. The recitals, inclusive of all facts and representations, are incorporated into this Agreement as if set forth in the Operative Provisions.
8.2 Vehicle Operation. GARCIA shall operate any vehicle used in connection with the performance of his duties as Interim City Manager in a safe manner and otherwise in observance of all established traffic safety laws and ordinances and shall maintain a valid California automobile’s driver’s license during the period of employment.
8.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be effective upon delivery by hand or email or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to CITY at the address below, and/or at the last known address maintained in GARCIA’s personnel file. GARCIA agrees to notify CITY in writing of any change in his address during his employment with CITY. Notice of change of address shall be effective only when accomplished in accordance with this Section.
As to CITY:
Attn: Talent Attraction and Development Manager
12363 Limonite Ave., Suite 910
Eastvale, CA 91752
[email protected]
With Copy to:
Burke, Williams & Sorensen, LLP
Attn: Erica Vega
1770 Iowa Ave., Suite 240
Riverside, CA 92507
[email protected]
Interim City Manager’s Address:
[Address on file]
8.4 Indemnification. Subject to, in accordance with, and to the extent provided by the California Tort Claims Act [Government Code Section 810 et seq .] CITY will indemnify, defend, and hold GARCIA harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any act or omission occurring during GARCIA’s tenure as Interim City Manager.
8.5 Integration. This Agreement is intended to be the final, complete, and exclusive statement of the terms of GARCIA’s employment by CITY. This Agreement supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of 14 RIV #4877-2593-9720 v2
7 GARCIA, including but not limited to the Employment Agreement between CITY and GARCIA for Acting City Manager Services dated January 12, 2022, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements.
To the extent that the practices, policies, or procedures of CITY, now or in the future, apply to GARCIA and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control.
8.6 Amendments. This Agreement may not be amended except in a written document signed by GARCIA, approved by the City Council and signed by CITY’s Mayor.
8.7 Waiver. Failure to exercise any right under this Agreement shall not constitute a waiver of such right.
8.8 Assignment. GARCIA shall not assign any rights or obligations under this Agreement. CITY may, upon prior written notice to GARCIA, assign its rights and obligations hereunder.
8.9 Severability. If a court or arbitrator holds any provision of this Agreement to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
8.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, with venue proper only in Riverside County, State of California.
8.11 Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, cancelled superseded or changed by any oral agreement, course of conduct, waiver or estoppel.
8.12 Acknowledgment. GARCIA acknowledges that he has had the opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained in this Agreement.
8.13 AB 1344. Assembly Bill 1344, which was subsequently enacted as Government Code Sections 53243 - 53244, sought to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. These statutes, generally require that certain contracts between local agencies and its employees include provisions requiring an employee who is 15 RIV #4877-2593-9720 v2
8 convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency for the certain forms of payment, including but not limited to the following: (i) criminal defense costs; (ii) cash settlement payments; and (iii) any non- contractual settlement payments. Accordingly, the Parties agree that it is their mutual intent to fully comply with these Government Code sections 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, the following Government Code sections are called out and hereby incorporated by this Agreement:
§ 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 noncontractual payments upon conviction or crime involving office or position.
§ 53243.4. “Abuse of office or position” defined.
8.14 Effect of Conviction on Termination. If GARCIA is convicted of a crime involving an abuse of his office or position, as defined in Government Code section 53243.4, the following restrictions will apply: (i) any paid leave given to GARCIA pending an investigation shall be fully reimbursed to City, (ii) any funds expended by City for the legal criminal defense of GARCIA shall be fully reimbursed to City, (iii) any cash settlement paid to GARCIA shall be fully reimbursed. Upon conviction of a covered felony under Government Code sections 7522.72 or 7522.74, GARCIA may forfeit the benefits in accordance with those sections.
8.15 Execution of Agreement. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be signed electronically in accordance with the City’s policy regarding electronic signatures. [SIGNATURES ON NEXT PAGE]
16 RIV #4877-2593-9720 v2
9 IN WITNESS WHEREOF, CITY and GARCIA agree to the foregoing and have directed their authorized representative to execute this Agreement.
CITY OF EASTVALE HENRY GARCIA
__________________________ ________________________
Clint Lorimore, Mayor Henry Garcia
Attest:
_________________________
Marc Donohue, City Clerk
Approved as to Form:
_________________________
Erica Vega, City Attorney
17