Agenda packet — Los Banos City Council, February 15, 2023 (part 2 of 2)

158

CITY OF LOS BANOS

CALIFORNIA

SINGLE AUDIT REPORT

FOR THE YEAR ENDED
JUNE 30, 2022
159

CITY OF LOS BANOS

CALIFORNIA

SINGLE AUDIT REPORT
JUNE 30, 2022

TABLE OF CONTENTS
Page
Independent Auditor’s Report on Internal Control Over
Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statements Performed in
Accordance with Government Auditing Standards ....................................................................................1 Independent Auditor’s Report on Compliance for Each Major Program and on Internal Control Over Compliance Required by the Uniform Guidance ................................................................................................................................3 Schedule of Expenditures of Federal Awards ..............................................................................................6 Notes to the Schedule of Expenditures of Federal Awards .........................................................................7 Schedule of Findings and Questioned Costs ...............................................................................................8 Summary Schedule of Prior Audit Findings ...............................................................................................10 160
1 INDEPENDENT AUDITOR’S REPORT ON INTERNAL CONTROL OVER

FINANCIAL REPORTING AND ON COMPLIANCE AND OTHER MATTERS

BASED ON AN AUDIT OF FINANCIAL STATEMENTS PERFORMED IN

ACCORDANCE WITH GOVERNMENT AUDITING STANDARDS
To the Honorable Mayor and
Members of the City Council
City of Los Banos, California
We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information of the City of Los Banos, California (the City), as of and for the year ended June 30, 2022, and the related notes to the financial statements, which collectively comprise the City’s basic financial statements, and have issued our report thereon dated February 10, 2023.

Report on Internal Control over Financial Reporting
In planning and performing our audit of the financial statements, we considered the City’s internal control over financial reporting (internal control) as a basis for designing audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the City’s internal control. Accordingly, we do not express an opinion on the effectiveness of the City’s internal control.

A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements, on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the entity’s financial statements will not be prevented, or detected and corrected, on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance.

Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or, significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses. However, material weaknesses or significant deficiencies may exist that were not identified.

Report on Compliance and Other Matters
As part of obtaining reasonable assurance about whether the City’s financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the financial statements. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards.
161
2 Purpose of This Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the entity’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the entity’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.

Clovis, California
February 10, 2023
162
3 INDEPENDENT AUDITOR’S REPORT ON COMPLIANCE

FOR EACH MAJOR PROGRAM AND ON INTERNAL CONTROL

OVER COMPLIANCE REQUIRED BY THE UNIFORM GUIDANCE
To the Honorable Mayor and
Members of the City Council
City of Los Banos, California
Report on Compliance for Each Major Federal Program
Opinion on Each Major Federal Program
We have audited the City of Los Banos, California’s (the City) compliance with the types of compliance requirements identified as subject to audit in the OMB Compliance Supplement that could have a direct and material effect on each of the City’s major federal programs for the year ended June 30, 2022. The City’s major federal programs are identified in the summary of auditor’s results section of the accompanying schedule of findings and questioned costs.

In our opinion, the City complied, in all material respects, with the types of compliance requirements referred to above that could have a direct and material effect on each of its major federal programs for the year ended June 30, 2022.

Basis for Opinion on Each Major Federal Program
We conducted our audit of compliance in accordance with auditing standards generally accepted in the United States of America; the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States; and the audit requirements of Title 2 U.S. Code of Federal Regulations Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). Our responsibilities under those standards and the Uniform Guidance are further described in the Auditor’s Responsibilities for the Audit of Compliance section of our report.

We are required to be independent of the City and to meet our other ethical responsibilities, in accordance with relevant ethical requirements relating to our audit. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our opinion on compliance for each major federal program. Our audit does not provide a legal determination of the City’s compliance with the compliance requirements referred to above.

Responsibilities of Management for Compliance
Management is responsible for compliance with the requirements referred to above and for the design, implementation, and maintenance of effective internal control over compliance with the requirements of laws, statutes, regulations, rules, and provisions of contracts or grant agreements applicable to the City’s federal programs.
163
4 Auditor’s Responsibilities for the Audit of Compliance Our objectives are to obtain reasonable assurance about whether material noncompliance with the compliance requirements referred to above occurred, whether due to fraud or error, and express an opinion on the City’s compliance based on our audit. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with generally accepted auditing standards, Government Auditing Standards, and the Uniform Guidance will always detect material noncompliance when it exists. The risk of not detecting material noncompliance resulting from fraud is higher than for that resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal control. Noncompliance with the compliance requirements referred to above is considered material if there is a substantial likelihood that, individually or in the aggregate, it would influence the judgment made by a reasonable user of the report on compliance about the City’s compliance with the requirements of each major federal program as a whole.

In performing an audit in accordance with generally accepted auditing standards, Government Auditing Standards, and the Uniform Guidance, we:
 Exercise professional judgment and maintain professional skepticism throughout the audit.  Identify and assess the risks of material noncompliance, whether due to fraud or error, and design and perform audit procedures responsive to those risks. Such procedures include examining, on a test basis, evidence regarding the City’s compliance with the compliance requirements referred to above and performing such other procedures as we considered necessary in the circumstances.
 Obtain an understanding of the City’s internal control over compliance relevant to the audit in order to design audit procedures that are appropriate in the circumstances and to test and report on internal control over compliance in accordance with the Uniform Guidance, but not for the purpose of expressing an opinion on the effectiveness of the City’s internal control over compliance. Accordingly, no such opinion is expressed.

We are required to communicate with those charged with governance regarding, among other matters, the planned scope and timing of the audit and any significant deficiencies and material weaknesses in internal control over compliance that we identified during the audit.

Report on Internal Control over Compliance
A deficiency in internal control over compliance exists when the design or operation of a control over compliance does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, noncompliance with a type of compliance requirement of a federal program on a timely basis. A material weakness in internal control over compliance is a deficiency, or a combination of deficiencies, in internal control over compliance, such that there is a reasonable possibility that material noncompliance with a type of compliance requirement of a federal program will not be prevented, or detected and corrected, on a timely basis. A significant deficiency in internal control over compliance is a deficiency, or a combination of deficiencies, in internal control over compliance with a type of compliance requirement of a federal program that is less severe than a material weakness in internal control over compliance, yet important enough to merit attention by those charged with governance.

Our consideration of internal control over compliance was for the limited purpose described in the Auditor’s Responsibilities for the Audit of Compliance section above and was not designed to identify all deficiencies in internal control over compliance that might be material weaknesses or significant deficiencies in internal control over compliance. Given these limitations, during our audit we did not identify any deficiencies in internal control over compliance that we consider to be material weaknesses, as defined above. However, material weaknesses or significant deficiencies in internal control over compliance may exist that were not identified.

Our audit was not designed for the purpose of expressing an opinion on the effectiveness of internal control over compliance. Accordingly, no such opinion is expressed. 164
5 The purpose of this report on internal control over compliance is solely to describe the scope of our testing of internal control over compliance and the results of that testing based on the requirements of the Uniform Guidance. Accordingly, this report is not suitable for any other purpose.

Report on Schedule of Expenditures of Federal Awards Required by the Uniform Guidance We have audited the financial statements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information of the City of Los Banos, California, as of and for the year ended June 30, 2022, and the related notes to the financial statements, which collectively comprise City’s basic financial statements. We issued our report thereon dated February 10, 2023, which contained unmodified opinions on those financial statements. Our audit was performed for the purpose of forming opinions on the financial statements that collectively comprise the basic financial statements. The accompanying schedule of expenditures of federal awards is presented for purposes of additional analysis as required by the Uniform Guidance and is not a required part of the basic financial statements.

Such information is the responsibility of management and was derived from and relates directly to the underlying accounting and other records used to prepare the basic financial statements. The information has been subjected to the auditing procedures applied in the audit of the financial statements and certain additional procedures, including comparing and reconciling such information directly to the underlying accounting and other records used to prepare the basic financial statements or to the basic financial statements themselves, and other additional procedures in accordance with auditing standards generally accepted in the United States of America. In our opinion, the schedule of expenditures of federal awards is fairly stated in all material respects in relation to the basic financial statements as a whole.

Clovis, California
February 10, 2023
165
The accompanying notes are an integral part of this statement. 6 CITY OF LOS BANOS

SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS
FOR THE YEAR ENDED JUNE 30, 2022
Assistance Pass-Through
Listing Grantor's Federal
Number Number Expenditures
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Pass-through California Department of Housing and Community Development:

Community Development Block Grant
CDBG Microenterprise - Program Income 14.228 15-CDBG-10567 152,490 $ Neighborhood Stabilization Program - Program Income 14.228 09-NSP1-6063 112,633 Total U.S. Department of Housing and Urban Development 265,123 U.S. DEPARTMENT OF JUSTICE
Direct Award:

Office of Justice Programs - Bullet Proof Vests 16.607 FY2021 3,653 Pass-through California Emergency Management Agency:

Law Enforcement Assistance Narcotics and Dangerous Drugs Laboratory Analysis City & County Law Enforcement Agencies - Narcotics Task Force ARRA 16.601 #ZA09010240 2,905 Total U.S. Department of Justice 6,558
U.S. DEPARTMENT OF TRANSPORTATION
Pass-through California Department of Transportation:

Highway Planning and Construction
Pioneer Road Improvements 20.205 HIPLPPSB-5160(029) 3,207 Signal Synch Project 20.205 CML-5160-028 39,551
Total U.S. Department of Transportation 42,758
U.S. DEPARTMENT OF THE TREASURY
Pass-through California Department of Finance:

Coronavirus State and Local Fiscal Recovery Funds
American Rescue Plan Act 21.027 N/A 9,816,684
Total U.S. Department of The Treasury 9,816,684
TOTAL EXPENDITURES OF FEDERAL AWARDS $ 10,131,123
Federal Grantor/Pass-Through Grantor/Program Title
166
7 CITY OF LOS BANOS

NOTES TO THE SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS FOR THE YEAR ENDED JUNE 30, 2022

GENERAL
The accompanying Schedule of Expenditures of Federal Awards (SEFA) presents the activity of all federal award programs of the City of Los Banos (the City). Federal awards received directly from federal agencies, as well as federal awards passed through other government agencies are included in the schedule. The information in this SEFA is presented in accordance with the requirements of Title 2 U.S.

Code of Federal Regulations Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance).

BASIS OF ACCOUNTING
The accompanying SEFA is presented using the modified accrual basis of accounting, except for the programs recorded in the City’s enterprise funds, which are presented using the accrual basis of accounting, which is described in Note 1 of the City’s basic financial statements.

RELATIONSHIP TO BASIC FINANCIAL STATEMENTS
Federal award expenditures agree or can be reconciled with the amounts reported in the City’s basic financial statements.

INDIRECT COST RATE
The City has elected not to use the 10 percent de minimis indirect cost rate as allowed under the Uniform Guidance.
167
8 CITY OF LOS BANOS

SCHEDULE OF FINDINGS AND QUESTIONED COSTS
FOR THE YEAR ENDED JUNE 30, 2022
SECTION I – SUMMARY OF AUDITOR’S RESULTS

FINANCIAL STATEMENTS
Type of auditor's report issued:

Internal control over financial reporting:

Material weaknesses identified? Yes X No
Significant deficiencies identified -
not considered to be material weaknesses? Yes X None reported Noncompliance material to financial statements noted? Yes X No

FEDERAL AWARDS
Internal control over major programs:

Material weaknesses identified? Yes X No
Significant deficiencies identified -
not considered to be material weaknesses? Yes X None reported Type of auditor's report issued on compliance for
major programs:

Any audit findings disclosed that are required
to be reported in accordance with
2 CFR 200.516(a)? Yes X No
IDENTIFICATION OF MAJOR PROGRAMS:

Assistance Listing Number(s)

21.027
Dollar threshold used to distinguish
between Type A and Type B programs:

Auditee qualified as low-risk auditee? Yes X No
$750,000
Unmodified
Unmodified
Name of Federal Program or Cluster
Coronavirus State and Local Fiscal Recovery
Funds
168
9 CITY OF LOS BANOS

SCHEDULE OF FINDINGS AND QUESTIONED COSTS
FOR THE YEAR ENDED JUNE 30, 2022
SECTION II – FINANCIAL STATEMENT FINDINGS
None reported.

SECTION III – FEDERAL AWARD FINDINGS
None reported.
169
10 CITY OF LOS BANOS

SUMMARY SCHEDULE OF PRIOR AUDIT FINDINGS
FOR THE YEAR ENDED JUNE 30, 2022

FINANCIAL STATEMENT FINDINGS
None reported.

FEDERAL AWARD FINDINGS AND QUESTIONED COSTS
None reported.
170
TO:

FROM:

DATE:

LOsBanos
At tl1e Cross1-oads of California
Agenda Staff Report
Mayor and City Council Members 1 .. ,
A~ l)f" Joe Heim, Parks and Recreation Operations Manager~ 'Jii/ Soknirorn Than, P.E., Public Works Director/City Engineer March 1 , 2023
TYPE OF REPORT: Agenda Item
SUBJECT: Shaunessy Village Park Conceptual Design
Recommendation:

That the City Council receive the report and provide direction.

Background:

The Shaunessy Village subdivision is located on east Mercey Springs Rd., north of Scripps Dr. The subdivision is approximately 39.1 acres and is made up of 151 lowdensity and medium density single-family residential lots. The subdivision includes an undeveloped parcel intended to be developed as a future park location.

The park location is located within the boundary of De Anza Way, Spadafore St., Hayley St. and Columbia Dr. The proposed park is approximately 2.97 acres in size. The area includes a detention basin area that supports the subdivision.

On October 6, 2022 City staff hosted a public meeting to discuss the development of the park location. The meeting was publicly advertised through the Community Center, the Parks and Recreation monthly newsletter and Recreation Guide, Facebook, and through a mailer sent to all neighboring homes to the park area.

Over 30 people attended the meeting. A presentation was provided for information relating to the benefits of parks, pocket park and neighborhood park standards, the Shaunessy Village location, and suggested and required amenities. 171
The City received significant comments both at the October 6, 2022 public meeting and via email prior to and following the meeting. Comments received, included:
• The inclusion of a sensory/all-inclusive playground structures. • The inclusion of fencing or bollards near the playground area. • The inclusion of a shade structure with picnic areas. • The inclusion of lighting, trees, a perimeter pathway, drinking fountain and benches.

Attendees to the October 6 public meeting were also asked to answer several questions:

Please choose between a playground 16 respondents selected playgrounds targeting ages 2-5 years old or a targeting ages 5-12. 5 respondents plavoround taroeting ages 5-12 selected playgrounds targeting ages 2-5.

Please choose between three options: 5 respondents selected Option 1. 22 -Option 1: An all-inclusive playground with respondents selected Option 2. 2 a fabric shade sail to support 2 picnic respondents selected Option 3. tables.
- Option 2: A standard playground with a
permanent shade structure to support 4
picnic tables.
- Option 3: A standard playground with a
fabric shade sail over the playground and
an unshaded picnic area for 2 picnic
tables.

Please rank these three amenities 1 to 3
(1 being the highest):
-Sidewalk/pathways
-Lighting
-Fencing
Please rank these three amenities 1 to 3
(1 being the highest):
-Trees
-Benches
-BBQ's
Ranked number one: 15 respondents
selected lighting, 2 respondents selected
sidewalk/pathways.

Ranked number two: 15 respondents
selected sidewalk/pathways. 2
respondents selected lighting.

Ranked number three: 13 respondents
selected fencing. 1 respondent selected
sidewalks/pathways and 1 respondent
selected lighting.

Ranked number one: 18 respondents
selected trees. 2 respondents selected
benches.

Ranked number two: 14 respondents
selected benches. 3 respondents selected
trees.

Ranked number three: 17 respondents
selected BBQs.
172
On October 18, 2022 City staff presented an update of the project to the Parks and Recreation Commission. A PowerPoint presentation provided project information and results from the public meeting on October 6, 2022. Comments received from Commission members included ensuring that the playground area was safe, preferably with fencing, and that sensory play equipment be considered for the project.

Discussion:

In October, 2022 City staff assigned the design and engineering services for the project to O'Dell Engineering (O'Dell). Staff from O'Dell were on-site for the October 6, 2022 public meeting and received copies of all public comments received.

City staff and its consultant identified the park as a mixed use park with elements of pocket park and neighborhood park classifications. Pocket parks are usually less than one acre and located in residential areas with a 0.25 mile service radius. They typically include a playground, picnic tables, BBQs, benches and shade. Examples of pocket parks include:

Little Page Park, Presidential Park, and Citrus 1 Park. Neighborhood parks are designed to meet local neighborhood needs and are intended to have a service radius area of 0.50 mile. Neighborhood parks are usually between one and ten acres in size. Examples of neighborhood parks include: College Greens Park, Ranchwood Park and Cresthills Park.

City staff identified the proposed park in the Shaunessy Village subdivision as a mixed use park due to the inclusion of a 1. 73 acre detention basin area. The detention basin area limits the space that is available for the development of active recreation amenities such as playgrounds.

The addition of the Shaunessy Village Park location will provide additional service area coverage. The park will provide a walkable park location for the new subdivision.

With the support of City staff and public comments, O'Dell developed three park design options. City staff is recommending Concept "A."
Concept "A" includes a playground area with 4' high fencing and gates. A 20'x20' shade structure will provide coverage for four picnic tables. Concrete pathways will provide access around the perimeter of the park and through the playground area. 80 trees will provide additional shade and greenery throughout the park, and decorative boulder areas will enhance the corner entry points to the park. A detention basin will include a turf play area similar to other parks in Los Banos. The inclusion of sensory playground equipment will be dependent on the available budget, but a music area intended for children of all abilities will be available adjacent to the playground area.

Concepts "B" and "C" provide similar amenities to Concept "A". Concept "B" includes a large no-mow lawn area that would provide a natural look to the park. Concept "C" provides an additional large turf area above the basin space. 173
City staff selected Concept "A" due to several design elements including: the consideration of limiting turf areas to align with current and future drought tolerant policies, its amenity's distance from the roadways creating a safe play-zone, its aesthetically pleasing symmetry, and inclusion of playground and shade areas.

City staff identifies that the development of the park will help to establish identity and comradery for the health of the community. The development of parks provides important public resources for active lifestyles, helping to reduce anxiety and benefit all age groups.

O'Dell Engineering has completed a topographic survey for the project. City staff is requesting that City Council provides comments on the conceptual map of the proposed park. O'Dell is anticipating that plans, specifications and engineering will take up to 18 weeks for completion once a conceptual plan is approved.

Fiscal Impact:

The project has an available budget of $1,125,632.00 from the Shaunessy Village Park Development fund. This includes design and construction expenses. The City is anticipating that design and engineering consulting will total $140,000.00.

Reviewed by:

Attachments:

Concept Plan "A"
Concept Plan "B"
Concept Plan "C"
Brent Kuhn, Interim Finance Director
174

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178
LOsBanos
At ~n1ssr)ll( s c~f Caltfo, nia
Agenda Staff Report
TO:

FROM:

DATE:

Mayor Llanez & City Council Members
William A. Vaughn, City Attorney
February 15, 2023
SUBJECT: Pinheiro Settlement and Employment
TYPE OF REPORT: Regular
Recommendation:

Staff recommends that the City Council consider the following resolutions:

1. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LOS BANOS

ACCEPTING AND APPROVING A SETTLEMENT AGREEMENT AND
RELEASE BETWEEN THE CITY OF LOS BANOS AND JOSH PINHEIRO.

2. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LOS BANOS

APPOINTING A CITY MANAGER AND APPROVING AND AUTHORIZING THE

EXECUTION OF THE LOS BANOS CITY MANAGER EMPLOYMENT
AGREEMENT.

Background:

On June 15, 2022 Josh Pinheiro's employment as City Manager for the City of Los Banos was terminated by a vote of 3-2 by the City Council in closed session.

On October 3, 2022 Mr. Pinheiro through his attorney, made a demand directed to the City of Los Banos alleging among other things potential causes of action of and seeking damages for: 1) Retaliation in violation of California Labor Code section 1102.5; 20; 2) Retaliation under the California Fair Employment and Housing Act; and 3) Wrongful Termination.
179
As a result of the foregoing, the parties have engaged in discussions with the goal of resolving the claims of Mr. Pinheiro in an attempt to avoid the negative effects of protracted litigation.

Discussion:

A. Settlement Agreement. If approved the major terms of the settlement agreement are as follows:

1. In consideration for the payment of $1,800,000 and Mr. Pinheiro's agreement to return to employment as Los Banos City Manager, Mr. Pinheiro agrees to release and forever discharge the City of Los Banos, including former and current city council members, employees, and other affiliates, from any and all past, present and future claims, demands, obligations,, actions, causes of actions, rights, damages, costs, losses of services, wages, et cetera arising out of his prior employment relationship with the City of Los Banos and prior termination of employment.

B. Employment Agreement. If approved, the major terms of the employment agreement are as follows:

1. Employment commences February 21, 2023.

2. Four year term of employment.

3. Annual base salary of $215,323.00 ($17,943.58 per month).

4. A step increase of 4.0% of Employee's base salary effective February 21, 2024; and a step increase of 4.0% of employee's base salary effective February 21, 2025; and a step increase of 4.0% of employee's base salary effective February 21, 2026.

5. Except as otherwise provided in the employment agreement Employee will receive all benefits as they now exist or may hereinafter be provided to other Management employees of the City as set forth in the Los Banos Personnel Policy Manual, including but not limited to:
a. Medica• •nsurance Benefit - Medica•tDentalNision/Ufe }nsurance. b. Retirement - CalPers.
c. Retirement Health Savings Plan.
d. Deferred Compensation - with an employer contribution of $708.33 each pay period.
e. Tuition Reimbursement.
f. Sick Leave.
g. Vacation Accrual - accrual at the rate of 13.33 hours/month. h. Education Incentive Pay.
i. Bilingual Incentive Pay.
180
j. Administrative Leave.
k. Car allowance - $500.

I. Cell phone allowance - $100 per month.
m. Relocation payment - one-time payment $5,000.

6. 5-0 vote of the City Council required for tennination of employment during the tern, of the agreement.

7. If terminated for no cause, the lesser of 12 months of severance pay or for the number of months remaining on the term in accordance with Government Code section 3511.2. Any payment of severance pay would be conditioned on the execution of a· waiver and release of all claims against the City.

8. Annual performance evaluation (on or about February 21 of each year during the term on the agreement). The annual performance evaluation shall be in accordance with specific criteria developed jointly by City Council and Employee.

Fiscal
The settlement payment would come from the City's general fund unallocated moneys.

Conclusion
Staff will be available to answer any questions.

RPBJL
Brent Kuhn,
lnterim Finance Director
Attachments:

Resolutions
Settlement Agreement and Release
Employment Agreement
Interim City Manager
181

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182
RESOLUTION NO. __

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LOS

BANOS CALIFORNIA, ACCEPTING AND APPROVING A

SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF

LOS BANOS AND JOSH PINHEIRO
WHEREAS, on June 15, 2022 Josh Pinheiro's (Pinheiro) employment as City Manager for the City of Los Banos (City) was terminated by a vote of 3-2 by the City Council in closed session.

WHEREAS, on October 3, 2022, Pinheiro, through his attorney, sent a demand letter alleging potential causes of action of, and seeking damages for: (1) Retaliation in Violation of Labor Code 1102.5; (2) Retaliation under FEHA; and (3) Wrongful Termination.

WHEREAS, subsequent to Pinheiro's demand having been made the parties have engaged in discussions with the goal of resolving the claims of Pinheiro in an attempt to avoid the negative effects of protracted litigation.

WHEREAS, the City and Pinheiro wish to settle and dispose of, fully and completely, any and all claims, demands, rights and causes of action between them in existence at any time through and including the date Pinheiro executes the Settlement Agreement and Release regarding any and all matters whatsoever, including without limitation any connected with or incidental to the October 3, 2022 demand, the alleged employment or other relationship, or termination or reinstatement of the alleged employment or other relationship, between the Parties, any and all dealings of any kind between the Parties and any and all claims, demands and causes of action asserted or which could have been asserted by Pinheiro against City as of or at any time before the date the Settlement Agreement and Release is executed by Pinheiro.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LOS BANOS DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

SECTION 1. The foregoing recitals are true and correct and are incorporated by reference herein.

SECTION 2. The City Council hereby approves and adopts the Settlement Agreement and Release which is attached hereto as Exhibit "A" and authorizes the Mayor or his designee to execute the same on behalf of the City. 183
The foregoing Resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on the 15th day of February 2023, by City Council Member ____ , who moved its adoption, which motion was duly seconded by City Council Member ____ , and the Resolution was adopted by the following vote:

AYES:

NOES:

ABSENT:

APPROVED:

Paul Llanez, Mayor
ATTEST:

Lucille L. Mallonee, City Clerk
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EXHIBIT "A" TO RESOLUTION --
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THIS PAGE IS INTENTIONALLY LEFT BLANK
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered into by and between Joshua Pinheiro (hereinafter "PINHEIRO"), on the one hand, and The City of Los Banos and its former and current council members, employees, agents, principals, insurers, attorneys, accountants, representatives, subrogees, assigns and fiduciaries, and all other individuals, firms, or corporations with whom any of the former have been, are now or may hereafter be affiliated (hereinafter all collectively "LOS BANOS"), on the other hand.

PINHEIRO and LOS BANOS arc: referred to individually as "Party" and collectively as the "Parties" in this Agreement.

1.0 RECITALS

1.1 On October 3, 2022, PINHEIRO, through his attorney, sent a demand letter alleging potential causes of action of, and seeking damages for: (1) Retaliation in Violation of Labor Code 1102.5; (2) Retaliation under FEHA; and (3) Wrongful Termination (hereinafter the "Action").

1.2 By this Agreement, the Parties wish to settle and dispose of, fully and completely, any and all claims, demands, rights and causes of action between them in existence at any and all times through and including the date this Agreement is executed by PINHEIRO, regarding any and all matters whatsoever, including without limitation any connected with or incidental to the Action, the alleged employment or other relationship, or termination or reinstatement of the alleged employment or other relationship, between the Parties, any and all dealings of any kind between the Parties and any and all claims, demands and causes of action asserted or which could have been asserted by PINHEIRO against LOS BANOS as of or at any time before the date this Agreement is executed by PINHEIRO (hereinafter the "Claim").

1.3 LOS BANOS denies any and all liability to PINHEIRO in connection with, related to, or arising out of the Action and the Claim.

THEREFORE, in consideration of the covenants and promises contained in this Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged, in order to avoid litigation, and without any admission of liability by LOS BANOS, the Parties agree as follows.

2.0 SETTLEMENT PAYMENT AND WITHHOLDINGS

2.1 Upon condition of and in consideration of the Release and Discharge provisions set forth herein and all other conditions and covenants set forth in this Agreement, and inclusive of all claims of PINHEIRO against LOS BANOS, LOS BANOS will pay the total settlement sum of One Million Eight Hundred Thousand Dollars and Zero Cents ($1,800,000.00) (hereinafter "the Settlement Funds"), within ten (10) days of the LOS BANOS's receipt of: (a) a fully executed copy of this Agreement; (b) completed W-9 and W-4 forms for PINHEIRO; and (c) a completed W-9 form for Avloni Law, as follows:

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• $115,000.00 made payable to PINHEIRO as and for his claim of lost wages, income, and any and all other compensation claimed in the Action, less all applicable withholdings, taxes, contributions and /or payroll deductions. The payment will be reported to taxing authorities as required by law, including on an IRS form W-2. Payment will be made available for PINHEIRO to pick up from William Vaughn's office based on the timeline specified in paragraph

2.1. • $1,668,181.00 made payable to PINHEIRO as and for all his non-wage claims, such as emotional distress. Payment of this amount will be reported to taxing authorities as required by law, including on an IRS form 1099.

Payment will be made available for PINHEIRO to pick up from William Vaughn's office based on the timeline specified in paragraph 2.1. • $16,819.00 made payable to "Avloni Law a Professional Corporation", as attorney's fees and costs. Payment of this amount will be reported to taxing authorities as required by law, including on an IRS form 1099 issued to PINHEIRO and his counsel. Payment will be mailed to Avloni Law, 870 Market Street, Suite 544, San Francisco, CA 94102.

2.2 LOS BANOS and its representatives, agents, accountants or attorneys have not made and do not make by this Agreement any representation to PINHEIRO or his counsel regarding the taxable nature or taxability, if any, of the settlement proceeds or the Settlement Funds in any part. PINHEIRO is directed to seek tax advice from a qualified CPA or attorney prior to signing this Agreement. PINHEIRO shall be solely responsible for any and all tax liabilities, if any, arising from the payments provided by this Agreement in whole and in each part. LOS BANOS shall issue the appropriate IRS form(s) reflecting the payment(s) described herein.

2.3 The Parties agree that this Agreement provides PINHEIRO sums and other benefits to which he is not otherwise entitled, including without limitation the Settlement Funds.

2.4 Except as specifically set forth in this paragraph, PINHEIRO acknowledges and agrees that no other amounts are due or owed to him by LOS BANOS by way of time worked, accrued and unused paid time off (PTO), holidays, other paid time off benefits, incentive compensation, health and welfare benefits, or otherwise. PINHEIRO agrees that he has been reimbursed for all business-related expenses that PINHEIRO incurred in connection with his past employment.

2.5 PINHEIRO understands and agrees that LOS BANOS shall have no further financial obligation to him whatsoever, other than as may be expressly set forth in this Agreement, or that may result from future employment.

3.0 GENERAL RELEASE AND DISCHARGE
3 .1 In consideration for the promises and covenants set forth in this Agreement, PINHEIRO releases and forever discharges LOS BANOS from any and all past and present claims, demands, obligations, actions, causes of actions, rights, damages, costs, losses of

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services, wages, costs, expenses and compensation of every nature whatsoever, whether based in tort, contract, equity, any statutory grounds or any other theory of recovery, in existence at any time through and including the Effective Date of this Agreement regarding any and all acts, omissions, transactions, injuries, damages and subject matters whatsoever, including without limitation all matters arising out of: (1) PINHEIRO's past employment relationship with LOS BANOS and the rights, duties, and obligations arising out of any such relationship; and, (2) the Action and the Claim, and any charge, claim or cause of action that was or could have been brought or filed in relation to the Action and the Claim, and any state or federal lawsuit or governmental agency complaint which arose out of, or could have arisen out of, the Action or the Claim (hereinafter collectively and singularly referred to as the "Released Matters"). Paragraph 3 .1 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

3.2 Without in any way limiting the generality of the foregoing, PINHEIRO expressly acknowledges that the Released Matters, further, include without limitation: (1) all past and/or present claims for wrongful termination in violation of public policy; (2) any and all past and/or present claims of discrimination, retaliation, harassment, failure to prevent harassment or discrimination or retaliation, failure to accommodate, failure to engage in the interactive process, whistleblowing, and all other violations under any local, state or federal law, regulation or ordinance; including, but not limited to: Title VII of the Civil Rights Act; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Older Workers Benefit Protection Act of 1990; the Family and Medical Leave Act; the National Labor Relations Act; the Consolidated Omnibus Budget Reconciliation Act of 1985; the California Fair Employment and Housing Act; Gov. Code § 12940 et seq. and the Fair Labor Standards Act; the Rehabilitation Act; Executive Order 11246; Executive Order 11141; the Federal Worker Adjustment and Retraining Notification Act; the California Worker Adjustment and Retraining Notification Act; the California Family Rights Act; the California Industrial Welfare Commission Wage Orders; the California Labor Code (with the exception of claims under the California Workers Compensation Act); (3) all past and/or present claims for breach of express, oral and implied contract, breach of the covenant of good faith and fair dealing, estoppel, negligence, violation of public policy, negligent and intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contractual relations or prospective economic advantage, defamation, invasion of privacy, libel, slander, fraud, failure to prevent and remedy harassment and retaliation, failure to accommodate; (4) all past and/or present claims for misclassification as an independent contractor, severance pay, wages, overtime wages, failure to provide paystubs in compliance with state or federal law, bonuses, sick leave, personal leave, vacation pay, holiday pay, life or health insurance, and any other fringe benefit; and (5) all past and/or present civil and statutory penalties of any kind under federal, state, or local law.

Paragraph 3 .2 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

3.3 PINHEIRO further releases and forever discharges, as set forth in Paragraphs 3.1 and 3.2, LOS BANOS' former and current council members, employees, agents, principals, insurers, attorneys, accountants, representatives, subrogees, assigns and fiduciaries, and all other individuals, firms, or corporations with whom any of the former have been, are now or may hereafter be affiliated, including, without limitation, LOS BANOS (hereafter "Releasees").

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Paragraph 3.3 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

3.4 PINHEIRO acknowledges and agrees that the release and discharge set forth in this Paragraph 3 is a full and complete general release. PINHEIRO waives and assumes the risk of any and all claims for damages which exist as of the Effective Date, but of which PINHEIRO does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect the Parties' decision to enter into this Agreement. PINHEIRO understands and agrees that this is a full and final release of all claims and causes of action of every nature and kind whatsoever, specifically including any and all liens, known and unknown, and released claims that are known and unknown, suspected and unsuspected. This release is given in exchange for the consideration identified in this Agreement, which is material. Accordingly, PINHEIRO hereby waives and relinquishes any and all rights and benefits which he may otherwise have pursuant to California Civil Code. Section 1542 which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY."
Paragraph 3.4 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

3.5 PINHEIRO further agrees to, and agrees to accept, the payment of the Settlement Funds set forth in Paragraph 2.1 as a complete compromise of all matters involving disputed issues of law and fact with respect to the Released Matters.

PINHEIRO assumes the risk that the facts or law may be other than he believes.

Paragraph 3.5 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.
3 .6 This settlement is a compromise of all disputed claims between the Parties. Neither any Party's entry into this Agreement nor the payment of the Settlement Funds may be construed in any forum as an admission of liability on the part of LOS BANOS, by whom liability is denied. Paragraph 3.6 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

4.0 RETURN TO EMPLOYMENT

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4.1 As an integral part of this Agreement, PINHEIRO has agreed to return to work as the City Manager for The City of Los Banos. The terms of that employment are delineated in the Employment Agreement attached hereto as Exhibit A.

5.0 ATTORNEY'S FEES AND COSTS, ETC.

Other than as may be expressly provided to the contrary in this Agreement, each Party shall bear his/her/its own attorney's fees and costs arising from the actions of his/their counsel in connection with the Action, the Claim, the Agreement, the Released Matters, the matters and documents referred to herein and all related matters. PINHEIRO acknowledges that any and all attorney's fees to which he may otherwise be entitled by law, if any, have been taken into account and are included in the Settlement Funds, and settled. To the extent that the Settlement Funds are paid, in whole or in part, to PINHEIRO's attorneys, as set forth in Paragraph "2.1" of this Agreement, such payment is made as a courtesy and shall not be deemed or construed as an admission that PINHEIRO was entitled to recover attorney's fees and costs against LOS BANOS. Neither Party is a prevailing party for any purpose.

6.0 COVENANT NOT TO SUE/COOPERATE

6.1 PINHEIRO agrees that he shall not knowingly, directly or indirectly, file, initiate, instigate, maintain or prosecute any claim, action, suit or other proceeding of any kind on any claim released by this Agreement or which arises from any acts or omissions occurring on or before the Effective Date. This Agreement shall constitute a full and complete defense and bar to, and may be used as the basis for an injunction against, any action, suit, administrative claim or other proceeding threatened, brought or maintained in breach of this Paragraph 6. Paragraph

6.1 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

6.2 PINHEIRO promises not to file a lawsuit against any Party for any matters related to or arising out of the facts of the Claim as raised in the Action. PINHEIRO promises not to accept any monetary relief awarded to him for any Claim arising out of the Action, including attorneys' fees, and PINHEIRO assigns any right to receive such relief to LOS BANOS, other than as otherwise set forth in this Agreement. Paragraph 6.2 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

6.3 PINHEIRO agrees he has no open claims or charges with any governmental agency against LOS BANOS and agrees to cause any pending claims or charges with any government agency against LOS BANOS to be dismissed with prejudice. Paragraph 6.3 does not apply to any and all claims arising after the execution of this Agreement, nor to any claims arising out of PINHEIRO'S employment with LOS BANOS commencing in February 2023.

7.0 REPRESENTATION AND COMPREHENSION OF DOCUMENTS

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7 .1 Each Party represents and warrants to the other that he/they have been advised to consult counsel prior to entering into this Agreement; that he/they have had the time, funds and ability to obtain any and all advice desired regarding this Agreement from attorneys and CP As of the Party's choosing concerning the legal and tax consequences of this Agreement; that the Party has, in fact, obtained all such advice desired; that the Party has had an opportunity to question their attorneys about the terms and consequences of this Agreement; that the Party has read this Agreement and understands it and its consequences; and, that the terms of this Agreement express the Party's wishes and are fully understood and voluntarily accepted by said Party, without fraud, undue influence or coercion by any person or circumstance. Each Party represents and warrants to the other that he/they are of sound mind and body and competent to enter into this Agreement.

7.2 The California Fair Employment and Housing Act ("FEHA"), California Government Code section 12964.5(b)(4), prohibits the waiver of any right or claim under FEHA as part of this Agreement related to an employee's separation of employment without notifying the employee of the right to consult an attorney regarding Agreement and shall provide the employee with a reasonable period of not less than five business days in which to do so.

PINHEIRO may sign such an agreement prior to the end of the reasonable time period as long as PINHEIRO's decision to accept such shortening of time is knowing and voluntary and is not induced by LOS BANOS through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, or by providing different terms to PINHEIRO if he signs such an agreement prior to the expiration of such time period. By entering into this Agreement, PINHEIRO acknowledges that he is knowingly and voluntarily, for just compensation in addition to anything of value to which PINHEIRO is already entitled, waiving and releasing any rights he may have under the FEHA. Paragraph 7.2 does not waive any rights under the FEHA for violations that occur after the execution of this Agreement, nor does it waive PINHEIRO'S rights to FEHA protections during his employment with LOS BANOS commencing in February 2023.

7.3 Each Party represents and warrants to the other that he/they conducted in full the investigation desired in relation to the claims, potential claims and defenses between the Parties and this Agreement, and obtained, reviewed and considered all advice, documents and information relevant to entry into this Agreement.

7.4 Each Party represents and warrants to the other that, except as expressly set forth in this Agreement, no representations or promises have been made to them, or by or on behalf of them, to induce their entry into this Agreement.

8.0 WARRANTY OF CAPACITY TO EXECUTE AGREEMENT
Each Party represents and warrants to the other that no other person or entity has, or has had, any interest in the claim, demand, obligations, or causes of action being released by her/them, except as otherwise set forth herein; that each Party has the sole right and exclusive authority to execute this Agreement and receive the sums specified, and that each Party has not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, potential claims, demand, obligations, or causes of action being released by her/them.

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9.0 ENFORCEMENT OF THIS AGREEMENT

9.1 Nothing in this Agreement releases or discharges enforcement of any of the Parties' obligations, agreements, representations, warranties or undertakings set forth in this Agreement, unless expressly set forth to the contrary. The Parties intend this Agreement to be final, binding and enforceable. Notwithstanding any other provision in this Agreement, the Parties intend this Agreement to be admissible in any proceeding concerning the enforcement of this Agreement.

9.2 No right or remedy given to a Party on the breach of any provision of this Agreement is intended by the Parties to be exclusive; each shall be cumulative and in addition to any other remedy provided in this Agreement or otherwise available at law or in equity.

10.0 MEDICAL LIENS/MEDICARE

10.1 PINHEIRO represents that there have been no payments or reimbursements by Medicare or Medicaid for any alleged damages or injuries relating to this claim.

10.2 PINHEIRO agrees to and shall pay, discharge, compromise, or dismiss any and all liens, claims, demands, lawsuits, or subrogation which any hospital, medical practitioner, health care provider, psychiatrist, psychologist, psychotherapist, insurer, county, state or federal government agency, or any other person, firm or corporation has or claims to have, including liens or claims asserted under the laws of the United States, the State of California, Medicare, Medicaid, Social Security, or the Medical Care Recovery Act, and any and all other liens or claims, whether created by statute, contract, or by the acts of any party, which any insurance carrier, governmental entity, person, firm, corporation, or any other entity may have as a result of the injuries that were allegedly sustained by PINHEIRO as alleged, or that could have been alleged in the Action and the Claim ( collectively referred to as "Medical Liens"), which have been or will be brought, filed, or submitted. PINHEIRO further agrees to and shall defend, indemnify and hold harmless LOS BANOS from and against any and all Medical Liens which have been or will be brought, filed, or submitted against LOS BANOS. As of the date of this Agreement, PINHEIRO has not notified LOS BANOS of any Medical Liens, and LOS BANOS is not aware of any.

11.0 GOVERNING LAW/ NO WAIVER
This Agreement shall be construed and interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. The Parties and their counsel were each involved in the negotiation and drafting of this Agreement. This Agreement shall be interpreted fairly according to its plain meaning, and not in favor or against either Party. No breach of any provision hereof can be waived unless in writing. Waiver of any one breach of any provision shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. This Agreement may be amended or modified only by a written agreement signed by or on behalf of the Parties. The Parties' covenants, representations and warranties set forth in this Agreement shall survive execution and performance of this Agreement.

12.0 ADDITIONAL DOCUMENTS

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The Parties shall cooperate fully and execute any and all supplementary documents and take all additional actions, which may be reasonably necessary or appropriate to give full force and effect to the terms and intent of this Agreement.

13.0 ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST
This Agreement contains the entire agreement between PINHEIRO and Releasees with regard to the matters set forth in it. Notwithstanding any provision herein, no provision of this Agreement shall require a Party to act, or to fail to act, in any manner contrary to law. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, agents, personal representatives, heirs, successors and assigns of each.

14.0 EFFECTIVENESS
This Agreement shall become effective once signed by all Parties.

15.0 COUNTERPARTS
This Agreement may be executed in counterparts and when each Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and all counterparts taken together will constitute one and the same Agreement, which will be binding and effective as to all Parties. Signatures by PDF, or facsimile on this Agreement shall be effective as originals for all purposes.

16.0 SEVERABILITY
If a court or arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the dates stated below:

Dated: , 2023 -----
Dated: , 2023 - -----

JOSHUA PINHEIRO
PAUL LLANEZ, Mayor
For: CITY OF LOS BANOS

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EXHIBIT A TO SETTLEMENT AND RELEASE

LOS BANOS CITY MANAGER

EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of this _ day of 2023 by and between the City of Los Banos, a municipal corporation, (hereinafter ------ the "City"), and Josh Pinheiro, (hereinafter the "City Manager" or "Employee").

RECITALS
A. Pursuant to LBMC Section 2-3.102 the City Manager shall be appointed by the City Council wholly on the basis of his or her administrative and executive ability and qualifications and shall hold office during the pleasure of the City Council.

B. The Employee has the necessary education, experience, skills and expertise to serve as the City's City Manager.

C. The City Council desires to employ Employee as the City Manager and has entered into negotiations with him for the purpose of entering into an employment agreement.

D. Employee desires to accept the employment as City Manager.

E. This Agreement is entered into pursuant to the authority of and subject to the provisions of Government Code Section 53260 et seq.

AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:

1. Employment.

City hereby appoints Employee as the City Manager for the City of Los Banos and employs him in that position and Employee hereby accepts that appointment and employment.

2. Tenn of.Employment.
(a) This Agreement shall become effective as of the date this Agreement is approved by the City Council. Employee's term of employment as City Manager shall be for four ( 4) years from the effective date of this Agreement, unless sooner terminated as otherwise provided for in this Agreement. This Agreement and offer of employment is subject to Employee's successful passage and completion of a pre-employment process which consists of a physical examination, and Livescan. fingerprinting. Employee's start date is anticipated to be February 21, 2023 or as otherwise agreed depending upon the completion of the pre-employment process. (b) The term and any extended term may be extended by mutual agreement of the parties. In the event that the term or any extended term is not extended by mutual agreement of the 1 02.03.2023 - WA V
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EXHIBIT A TO SETTLEMENT AND RELEASE
parties, this Agreement and the employment relationship shall end without further action by the City Council.

3. Salary and Benefits.
(a) City agrees to pay Employee an annual base salary of $215,323.00 ($17,943.58 per month) payable in equal semi-monthly installments at the same time and in the same manner that other City employees are paid.
(b) Employee shall be entitled to a step increase of 4.0% of Employee's base salary effective February 21, 2024; and a step increase of 4.0% of employee's base salary effective February 21, 2025; and a step increase of 4.0% of employee's base salary effective February 21, 2026.
(c) Employee's annual base salary may only be reduced at the same time and in the same percentage as any across-the-board reduction that is imposed upon other City Department Heads and or Management employees in the City. Employee shall not be entitled to a cost of living adjustment (COLA) given to other unrepresented/miscellaneous employees. ( d) Except as otherwise provided in this Agreement, Employee shall be entitled to receive all benefits as they now exist or may hereinafter be provided to other Management employees of the City as set forth in the Los Banos Personnel Policy Manual, including any changes or modifications to said benefits Eligibility and benefits will be as determined by the applicable laws, regulations and plan documents.
(1) Medical Insurance Benefit - Medical/Dental/Vision/Life Insurance. Employee shall be provided medical / dental / vision / life insurance packages to the same extent as other exempt management employees hired on or after April 1, 2010. Benefit levels and eligibility for benefits are defined in the contracts between the insurance providers and the City. (See, Section 5005 Los Banos Personnel Policy).
(2) Retirement. Employee shall be enrolled in City's retirement plan with the California Public Employees' Retirement Sys.tern (CalPERS), subject to the Retirement benefits formula for employees hired on or after January 1, 2013, on the terms and conditions applicable non-safety Management employees who are "New Members" within the meaning of the Public Employees' Pension Reform Act of 2013 (PEPRA). Employee shall be eligible for the 2% at 62 formula for CalPERS ''New Members." City shall pay the full share of the employer contribution to CalPERS and Employee shall be responsible to pay the employee contribution.

Employee contribution to CalPERS is tax deferred. (See, Section 5005 Los Banos Personnel Policy).
(3) Retirement Health Savings Plan. Employee may enroll in City's Retirement Health Savings Plan. If enrolled Employee must contribute $75 per month toward a Health Savings Plan. Employer will also contribute $75 per month to the plan. (See, Section 5005 Los Banos Personnel Policy).

02.03.2023 - WA V
(4) Deferred Compensation. The City will contribute $708.33 (I/24th of 2 196

EXHIBIT A TO SETTLEMENT AND RELEASE
$17,000.00) each pay period as an Employer contribution into one of the qualified Section 457 Plans established by the City ("457 Plan") as selected by the Employee. The Employer contributions will cease upon termination of Employee's employment. The Employer contributions are subject to the provisions and limitations of the 457 Plan and the Internal Revenue Code and its related regulations as amended from time to time. Employee may make a contribution to the 457 Plan in excess of the Employer contribution subject to the provisions and limitations of the 457 Plan and the Internal Revenue Code and its related regulations as amended from time to time.
(5) Tuition Reimbursement. Tuition (education related expenses) will be reimbursed in accordance with policy, upon successful completion of courses, up to $3,000.00 per fiscal year. (See, Section 5005 Los Banos Personnel Policy). ( 6) Sick Leave. Sick leave shall be accrued at eight (8) hours per month. (See, Section 5005 Los Banos Personnel Policy).
(7) Vacation Accrual. Employee shall be entitled to vacation accrual at the rate of

13.33 hours/month. Employee shall be entitled to any vacation buyback program applicable to other exempt management employees. Employee may save a maximum of two hundred forty (240) hours. (See, Section 5005 Los Banos Personnel Policy). Employee shall notify the city council two (2) weeks in advance of any planned vacation time off of one (1) week or more. (8) Education Incentive Pa . Employee shall be entitled to education incentive pay in accordance with the following formula. (See, Section 5005 Los Banos Personnel Policy). $100 per month for A.A./A.S.; or
$175 per month for B.A./B.S.; or
$225 per month for M.A./M.S.
(9) Bilingual Incentive Pay. If eligible, Employee shall be entitled to bilingual incentive pay in accordance with the following formula. (See, Section 5005 Los Banos Personnel Policy).
$50 per month for Basic Verbal Skills; or
$100 per month for Comprehensive Verbal Skills; or
$150 per month for Written Presentation Skills
(10) Administrative Leave. Employee shall receive ten (10) work days off, with full salary and benefits, during every fiscal year of employment. Every July 1 si, 80 hours are accrued and may not be carried over. Employee will receive a pro-rated amount based on hire date. (See, Section 5011 Los Banos Personnel Policy). Employee shall notify the city council two (2) weeks in advance of any planned administrative leave of one (1) week or more. ( e) City desires to encourage Employee's continuing professional development and agrees to budget and pay for pre-approved professional dues and subscriptions, and travel and subsistence expenses for such conferences, seminars, courses, institutes, and meetings that the City Council deems reasonable and desirable for Employee's -professional development and for the good 3 02.03.2023 - WA V
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EXHIBIT A TO SETTLEMENT AND RELEASE
of the City. Attendance at the annual League of California Cities conference and expo; and annual City Managers conference are hereby pre-approved.
(f) Employee shall receive a cell phone allowance of$100.00 per month. (g) Employee shall be provided an automobile allowance of $500.00 per month in exchange for making a vehicle available for the Employee's own use and for City-related business and/or functions during, before and after normal work hours. (h)
$5,000.00.

4. City agrees to pay Employee a one-time moving and relocation payment of Duties.
(a) Employee shall serve _as City Manager .and perform those duties and have those responsibilities that are commonly assigned to a city manager of a city in California. The duties and responsibilities of the City Manager shall include the duties and responsibilities that are set forth in the Los Banos Municipal Code, including, but not limited to, Section 2-3.112 - 2-3.125, and such other duties and responsibilities as the City Council may from time to time reasonably assign to the City Manager.
(b) Employee shall devote all necessary time and effort to fulfill the obligations of the City Manager's position. The City and Employee acknowledge that Employee is reasonably expected to be available but does not have regularly set hours of work and may be occasionally absent from City Hall during normal business hours as is reasonable and appropriate.

Employee's work schedule will vary in accordance to the work required to be performed.

5. Exclusive Employment.

Employee shall devote all of his time, energy and efforts to the City, and shall accept no outside employment, but the foregoing shall not limit Employee in teaching, writing, lecturing, or consulting, but only to the extent that such activities do not interfere with his duties as set forth in this Agreement.

6. Performance Evaluation.

The City shall review and evaluate the performance of Employee annually ( on or about February 21 of each year during the term on this agreement). Said review and evaluation shall be private and confidential, and the results shall be summarized and discussed in closed sessio~ to the extent permitted by law, or through some other mutually acceptable closed format. The parties agree that the primary purposes of such evaluation are to facilitate open and frank discussion, define goals and expectations, identify performance strengths and weaknesses, and to provide an opportunity for Employee to take affirmative action to address weaknesses and areas needing improvement. Failure of the City Council to provide a performance evaluation shall not limit the City's ability to terminate this Agreement pursuant to the terms set forth herein. This annual performance evaluation shall be in accordance with specific criteria developed jointly by City Council and Employee.
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7. (a)

EXHIBIT A TO SETTLEMENT AND RELEASE
Separation.

At Will Employment.

Consistent with Government Code Section 36506 the parties expressly agree that the position of City Manager is an "at-will" employee, and that the City Manager serves at the will and pleasure of the City Council. Nothing in this Agreement, any statute, ordinance, regulation or rule shall prevent, limit, or otherwise interfere with the right of the City Council to terminate,, with or without cause or reason, the employment of Employee.

The City Council may, in its absolute discretion, terminate the employment of Employee as City Manager and terminate Employee's employment with the City. To terminate Employee's employment, the City, acting through the City Council, shall give Employee a written notice of the termination. Termination must be approved by five (5) members of the City Council at a regular or special meeting held in accordance with the Ralph M. Brown Act (California Government Code Section 54950 et seq.). The City Council is not required to provide a notice of causes or reasons for the termination and is not required to provide any type of hearing regarding the termination, including any type of "Skelly" hearing. If Employee is terminated, Employee shall have no right of appeal or grievance procedure.

As provided in Los Banos Municipal Code Section 2-3.127, the Employee shall "not be removed from office, other than for gross misconduct, during or within a period of ninety (90) days next succeeding the appointment of a new Council Member or any general municipal election held in the City at which election a member of the City Council is elected." (b) Resignation.

Employee may resign from his employment as City Manager upon giving thirty (30) days prior written notice to the City Council; provided, however, that notice shall not be required in the event Employee resigns pursuant to a request for resignation by the City Council. Employee shall be compensated during the notice period. Employee at Employer's sole option may be directed not to report to work during all or any part of the resignation notice period. (c) Automatic Termination.

EXHIBIT A TO SETTLEMENT AND RELEASE
(5) When Employee has been unable to perform substantially all of the essential terms of his position, with or without reasonable accommodation, due to illness or other disability for a period of three (3) months.
( 6) Termination or removal for Cause.
(7) Expiration of the term of this Agreement or any extended term. ( d) Severance.

In the .event Employee is terminated for a reason set forth in sub paragraphs 7(d) (1)-(5) of this Agreement, City shall pay to Employee as severance compensation a swn equal to the lesser of (i) twelve (12) months base salary or (ii) base salary for the number of months remaining on the term of this Agreement.
(1) The City terminates Employee without cause.
(2) The City reduces Employee's salary or other benefits in a greater percentage than applicable across-the-board reductions made by the City for other Management employees in the City and Employee elects to give thirty (30) days written notice of his resignation to the City Council. The written notification of resignation must be given within thirty (30) days of the reduction in Employee's salary or other benefits. (3) The City Council requests the resignation of Employee, and Employee resigns pursuant to that request.
( 4) The city manager form of government is abandoned by action of the City Council, vote of the people, state legislation, or by any other means. (5) The position of city manager is eliminated by action of the City Council, vote of the people, state legislation, or by any other means.

The payment of severance compensation pursuant to this paragraph shall be in a lump sum, less applicable payroll deductions. Employee shall also receive continuing health insurance plan coverage including dental and vision for the duration of the Severance Months from the effective date of the termination. Pursuant to Government Code Section 53261, the continuing eligibility of Employee and his dependents for health insurance plan coverage shall terminate should Employee obtain other employment.

The severance rights provided in herein shall constitute the sole and only entitlement of Employee with respect to severance pay in the event of the termination, other than for cause.

Employee expressly waives any and all other rights with respect to severance pay except as provided herein. Such severance compensation is expressly contingent on the execution, delivery, and non-revocation of a General Release Agreement by Employee.

It is the intention of the parties that this paragraph complies with the requirements of Government Code Section 53260 et seq. In the event of any conflict between this provision and those code sections, the terms of those code sections shall govern the contractual relationship between the employer and employee.
(e) Termination or Removal for Cause.

Notwithstanding any provision of this Agreement to the contrary, City may terminate 6 02.03.2023 - WA V
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EXHIBIT A TO SETTLEMENT AND RELEASE
Employee's employment for cause at any time, and if Employee is terminated or removed for cause, he shall not be entitled to payment of severance compensation or any other compensation or damages. "Cause" shall include the following reasons.
(1) Employee's breach of this Agreement.
(2) Conviction of any felony. Conviction of a crime, whether misdemeanor or a felony, involving moral turpitude, or arising out of Employee's duties under this Agreement, or under the Political Reform Act, or any offense constituting an "abuse of office or position within the meaning of Government Code Section 53243.4, or under Government Code Section 1090 et. seq. For purposes of this paragraph, a plea of nolo contendere shall also be considered a conviction.
(3) Any willful or grossly negligent act or inaction of: material dishonesty; or that materially and adversely impedes or disrupts the operations of City or its organizational units; or is detrimental to employees or public safety; or is a violation of City established policies, rules, regulations, and procedures. (4) Dishonesty involving employment, including but not limited to falsification of any city report or record or of any report or record required to be, or filed by Employee. ( 5) Acceptance from any source of any emolument, reward, gift or other form of remuneration in addition to Employee's regular compensation, as a personal benefit to the Employee for actions performed in the normal course of Employee's assigned duties.
( 6) Resume fraud.
(7) Willful abandonment of the duties of the office of city manager. (8) Willful and intentional failure to carry out clear direction or order of the City Council made by the City Council as a body at a Brown Act compliant meeting. (9) Repeated and protracted unexcused absences from the office and duties of city manager.
(10) Continued abuse of drugs or alcohol that materially aff~cts the performance of the duties of city manager.
(11) Willful and intentional failure to carry out materially significant and legally constituted policy decisions of the City Council made by the City Council as a body, or persistent willful violation of properly established rules and procedures. (12) Any other action or inaction by Employee that materially and substantially impedes or disrupts the performance of City or its organizational units, is detrimental to employee safety or public safety, violates properly established rules or procedures, adversely affects the reputation of City, its officers or employees, or has a substantial and adverse effect on City's interests.

EXHIBIT A TO SETTLEMENT AND RELEASE
involving an abuse of his office or position.
( c) Regardless of the term of this Agreement, 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 office or position. (See, Government Code Section 53243.2).
(d) For purposes of this section, "abuse of office or position" shall be as defined in Government Code Section 53243.4.

9. Indemnification.

City agrees to defend, hold harmless, and indemnify Employee against any claims, demands or legal actions, whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope and during the course of Employee's employment with the City, subject to Employee -cooperating in good faith with the City with respect to <lefense of such claims, demands, or legal actions in accordance with the provisions of California Government Code Sections 825 and 825.6. City may compromise and settle any such claim, demand, or action and pay the amount of any settlement or judgment rendered therefrom. This covenant shall survive the termination of this Agreement.

10. Notices.

Any notice to be given hereunder by either party to the other in writing may be effected either by personal delivery or by mail. Mailed notices shall be addressed to the address of the parties to be notified which appears below, but each party may change its address by written notice given in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated and received as of five (5) calendar days following the date of mailing of the notice.

CITY:

EMPLOYEE:

City of Los Banos
Attn: City Clerk
520 J Street
Los Banos, CA 93635
Josh Pinheiro
520 J Street
Los Banos, CA 93635
With a copy addressed to Employee at Employee's home address then shown in City's files.

11. Entire Agreement.

EXHIBIT A TO SETTLEMENT AND RELEASE
to that 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 is not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding on either party.

12. Drafting of Agreement.

The Parties hereto acknowledge and agree that although this Agreement has been drafted by City's legal counsel, Employee has reviewed, or had an opportunity to review the terms of this Agreement with Employee's legal counsel. Consequently, the doctrine that ambiguities in an agreement should be resolved against the drafting Party shall not be employed in connection with this Agreement and this Agreement shall be interpreted in accordance with its fair meaning.

13. Independent Review of Agreement.

Employee acknowledges that Employee has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that Employee has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of City, its officers, agents or Employees other than those expressly set forth in this Agreement.

14. Modifications.

Any modifications to this Agreement shall be effective only if in writing and signed by both the parties hereto.

15. 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.

16. 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.

17. Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of California in full force and effect as of the date of execution.

18. Attorney's Fees.

In the event of any legal action between the parties hereto to enforce the provisions of this 9 02.03.2023 - WA V
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EXHIBIT A TO SETTLEMENT AND RELEASE
Agreement, the prevailing party shall be entitled to attorney's fees and costs.

19. Representations.

City and Employee each represent and warrant to the other that each has received legal advice from independent and separate legal counsel with respect to this Agreement, or has knowingly declined to obtain such legal advice, and further represent and warrant to each other that each has carefully reviewed this Agreement and each and every term hereof. This Agreement shall not be construed against the party or its representatives who draft it or any portion hereof.

20. Counterparts.

This Agreement may be executed on separate copies, any one of which need not contain signatures of more than one party but all of which taken together shall constitute one and the same Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first herein written above.

ATTEST:

Lucille L. Mallonee
City Clerk

APPROVED AS TO FORM BY THE

CITY ATTORNEY FOR THE

CITY OF LOS BANOS
William A. Vaughn
City Attorney

02.03.2023 - WA V
"EMPLOYEE"
Josh Pinheiro
"CITY"
Paul Llanez
Mayor
204
RESOLUTION NO. __

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LOS

BANOS APPOINTING A CITY MANAGER AND APPROVING AND

AUTHORIZING THE EXECUTION OF THE LOS BANOS CITY

MANAGER EMPLOYMENT AGREEMENT
WHEREAS, the City requires the services of a City Manager and the City Council has engaged in a recruitment process to select a new City Manager.

WHEREAS, pursuant to LBMC Section 2-3.102 the City Manager shall be appointed by the City Council wholly on the basis of his or her administrative and executive ability and qualifications and shall hold office during the pleasure of the City Council.

WHEREAS, Josh Pinheiro has the necessary education, experience, skills and expertise to serve as the City's City Manager.

WHEREAS, the City Council desires to appoint and execute an Employment Agreement to employ Josh Pinheiro as the Los Banos City Manager.

WHEREAS, Josh Pinheiro desires to serve the City Council and the City of Los Banos as the City Manager of the City of Los Banos commencing February 21, 2023.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LOS BANOS DOES HEREBY RESOLVE AS FOLLOWS:

1. That the City Council of the City of Los Banos does hereby appoint Josh Pinheiro as the next City Manager of the City of Los Banos and approves and authorizes the Mayor or his designee to execute the Los Banos City Manager Employment Agreement attached hereto as Exhibit "A".

The foregoing Resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on this 15th day of February 2023, by Council Member ___ , who moved its adoption, which motion was duly seconded by Council Member ___ , and the Resolution was adopted by the following vote:

AYES:

NOES:

ABSENT:

APPROVED:

Paul Llanez, Mayor
205
ATTEST:

Lucille L. Mallonee
City Clerk
206
EXHIBIT "A" TO RESOLUTION __
207

THIS PAGE IS INTENTIONALLY LEFT BLANK
208

LOS BANOS CITY MANAGER

EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of this _ day of ______ 2023 by and between the City of Los Banos, a municipal corporation, (hereinafter the "City"), and Josh Pinheiro, (hereinafter the "City Manager" or "Employee").

B. The Employee has the necessary education, experience, skills and expertise to serve as the City's City Manager.

C. The City Council desires to employ Employee as the City Manager and has entered into negotiations with him for the purpose of entering into an employment agreement.

D. Employee desires to accept the employment as City Manager.

E. This Agreement is entered into pursuant to the authority of and subject to the provisions of Government Code Section 53260 et seq.

AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:

1. Employment.

City hereby appoints Employee as the City Manager for the City of Los Banos and employs him in that position and Employee hereby accepts that appointment and employment.

2. Tenn of Employment.
(a) This Agreement shall become effective as of the date this Agreement is approved by the City Council. Employee's term of employment as City Manager shall be for four (4) years from the effective date of this Agreement, unless sooner terminated as otherwise provided for in this Agreement. This Agreement and offer of employment is subject to Employee's successful passage and completion of a pre-employment process which consists of a physical examination, and Livescan fingerprinting. Employee's start date is anticipated to be February 21, 2023 or as otherwise agreed depending upon the completion of the pre-employment process. (b) The term and any extended term may be extended by mutual agreement of the parties. In the event that the term or any extended term is not extended by mutual agreement of the 1 02.03.2023 - WA V
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parties, this Agreement and the employment relationship shall end without further action by the City Council.

3. Salary and Benefits.
(a) City agrees to pay Employee an annual base salary of $215,323.00 ($17,943.5& per month) payable in equal semi-monthly installments at the same time and in the same manner that other City employees are paid.
(b) Employee shall be entitled to a step increase of 4.0% of Employee's base salary effective February 21, 2024; and a step increase of 4.0% of employee's base salary effective February 21, 2025; and a step increase of 4.0% of employee's base salary effective February 21, 2026.
(c) Employee's annual base salary may only be reduced at the same time and in the same percentage as any across-the-board reduction that is imposed upon other City Department Heads and or Management employees in the City. Employee shall not be entitled to a cost of living adjustment (COLA) given to other unrepresented/miscellaneous employees. ( d) Except as otherwise provided in this Agreement, Employee shall be entitled to receive all benefits as they now exist or may hereinafter be provided to other Management employees of the City as set forth in the Los Banos Personnel Policy Manual, including any changes or modifications to said benefits Eligibility and benefits will be as determined by the applicable laws, regulations and plan documents.
(l) Medical Insurance Benefit - Medical/DentalNision/Life Insurance. Employee shall be provided medical / dental / vision / life insurance packages to the same extent as other exempt management employees hired on or after April 1, 2010. Benefit levels and eligibility for benefits are defined in the contracts between the insurance providers and the City. (See, Section 5005 Los Banos Personnel Policy).
(2) Retirement. Employee shall be enrolled in City's retirement plan with the California Public Employees' Retirement System (CalPERS), subject to the Retirement benefits formula for employees hired on or after January l, 2013, on the terms and conditions applicable non-safety Management employees who are "New Members" within the meaning of the Public Employees' Pension Reform Act of 2013 (PEPRA). Employee shall be eligible for the 2% at 62 formula for CalPERS "New Members." City shall pay the full share of the employer contribution to CalPERS and Employee shall be responsible to pay the employee contribution.

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(4) Deferred Compensation. The City will contribute $708.33 (I/24th of 2 210
$17,000.00) each pay period as an Employer contribution into one of the qualified Section 457 Plans established by the City ("457 Plan") as selected by the Employee. The Employer contributions will cease upon termination of Employee's employment. The Employer contributions are subject to the provisions and limitations of the 457 Plan and the Internal Revenue Code and its related regulations as amended from time to time. Employee may make a contribution to the 457 Plan in excess of the Employer contribution subject to the provisions and limitations of the 457 Plan and the Internal Revenue Code and its related regulations as amended from time to time.
(5) Tuition Reimbursement. Tuition (education related expenses) will be reimbursed in accordance with policy, upon successful completion of courses, up to $3,000.00 per fiscal year. (See, Section 5005 Los Banos Personnel Policy). (6) Sick Leave. Sick leave shall be accrued at eight (8) hours per month. (See, Section 5005 Los Banos Personnel Policy).
(7) Vacation Accrual. Employee shall be entitled to vacation accrual at the rate of

13.33 hours/month. Employee shall be entitled to any vacation ·buyback program applicable to other exempt management employees. Employee may save a maximum of two hundred forty (240) hours. (See, Section 5005 Los Banos Personnel Policy). Employee shall notify the city council two (2) weeks in advance of any planned vacation time off of one (1) week or more. (8) Education Incentive Pay. Employee shall be entitled to education incentive pay in accordance with the following formula. (See, Section 5005 Los Banos Personnel Policy). $100 per month for A.A./A.S.; or
$175 per month for B.A./B.S.; or
$225 per month for M.A./M.S.
(9) Bilingual Incentive Pay. If eligible, Employee shall be entitled to bilingual incentive pay in accordance with the following formula. (See, Section 5005 Los Banos Personnel Policy).
$50 per month for Basic Verbal Skills; or
$100 per month for Comprehensive Verbal Skills; or
$150 per month for Written Presentation Skills
(10) Administrative Leave. Employee shall receive ten (10) work days off, with full salary and benefits, during every fiscal year of employment. Every July 1st, 80 hours are accrued and may not be carried over. Employee will receive a pro-rated amount based on hire date. (See, Section 5011 Los Banos Personnel Policy). Employee shall notify the city council two (2) weeks in advance of any planned administrative leave of one (1) week or more. ( e) City desires to encourage Employee's continuing professional development and agrees to budget and pay for pre-approved professional dues and subscriptions, and travel and subsistence expenses for such conferences, seminars, courses, institutes, and meetings that the City Council deems reasonable and desirable for Employee's professional development and for the good 3 02.03.2023 - WA V
211
of the City. Attendance at the annual League of California Cities conference and expo; and annual City Managers conference are hereby pre-approved.
(f) Employee shall receive a cell phone allowance of$100.00 per month. (g) Employee shall be provided an automobile allowance of $500.00 per month in exchange for making a vehicle available for the Employee's own use and for City-related business and/or functions during, before and after normal work hours. (h)
$5,000.00.

4. City agrees to pay Employee a one-time moving and relocation payment of Duties.
(a) Employee shall serve as City Manager and perform those duties and have those responsibilities that are commonly assigned to a city manager of a city in California. The duties and responsibilities of the City Manager shall include the duties and responsibilities that are set forth in the Los Banos Municipal Code, including, but not limited to, Section 2-3.112 - 2-3.125, and such other duties and responsibilities as the City Council may from time to time reasonably assign to the City Manager.
(b) Employee shall devote all necessary time and effort to fulfill the obligations of the City Manager's position. The City and Employee acknowledge that Employee is reasonably expected to be available but does not have regularly set hours of work and may be occasionally absent from City Hall during normal business hours as is reasonable and appropriate.

Employee's work schedule will vary in accordance to the work required to be performed.

5. Exclusive Employment.

6. Performance Evaluation.

The City shall review and evaluate the performance of Employee annually ( on or about February 21 of each year during the term on this agreement). Said review and evaluation shall be private and confidential, and the results shall be summarized and discussed in closed session, to the extent permitted by law, or through some other mutually acceptable closed format. The parties agree that the primary purposes of such evaluation are to facilitate open and frank discussion, define goals .and expectations, identify performance strengths and weaknesses, and to provide an opportunity for Employee to take affirmative action to address weaknesses and areas needing improvement. Failure of the City Council to provide a performance evaluation shall not limit the City's ability to terminate this Agreement pursuant to the terms set forth herein. This annual performance evaluation shall be in accordance with specific criteria developed jointly by City Council and Employee.
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7. Separation.
(a) At Will Employment.

Consistent with Government Code Section 36506 the parties expressly agree that the position of City Manager is an "at-will" employee, and that the City Manager serves at the will and pleasure of the City Council. Nothing in this Agreement, any statute, ordinance, regulation or rule shall prevent, limit, or otherwise interfere with the right of the City Council to terminate, with or without cause or reason, the employment of Employee.

The City Council may, in its absolute discretion, terminate the employment of Employee as City Manager and terminate Employee's employment with the City. To tenninate Employee's employment, the City, acting through the City Council, shall give Employee a written notice of the termination. Termination must be approved by five (5) members of the City Council at a regular or special meeting held in accordance with the Ralph M. Brown Act (California Government Code Section 54950 et seq.). The City Council is not required to provide a notice of causes or reasons for the termination and is not required to provide any type of hearing regarding the termination, including any type of "Skelly" hearing. If Employee is terminated, Employee shall have no right of appeal or grievance procedure.

This Agreement, and Employee's employment, shall automatically terminate, and Employee shall not be entitled to any severance compensation upon the happening of any of the following events:
(1) Upon mutual agreement in writing by both parties to terminate this Agreement. (2) Upon resignation given to City by Employee, except if the resignation is in response to a request for resignation from the City Council.
(3) Upon retirement from full time public service with the City, pursuant to applicable PERS laws, rules and regulations. If Employee retires, Employee will provide six (6) months advance notice.
(4) Upon death of Employee.
5 02.03.2023 - WA V
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(5) When Employee has been unable to perform substantially all of the essential terms of his position, with or without reasonable accommodation, due to illness or other disability for a period of three (3) months. ·
(6) Termination or removal for Cause.
(7) Expiration of the term of this Agreement or any extended term. ( d) Severance.

In the event Employee is terminated for a reason set forth in sub paragraphs 7(d) (1)-(5) of this Agreement, City shall pay to Employee as severance compensation a sum equal to the lesser of (i) twelve (12) months base salary or (ii) base salary for the number of months remaining on the term of this Agreement.
(1) The City terminates Employee without cause.
(2) The City reduces Employee's salary or other benefits in a greater percentage than applicable across-the-board reductions made by the City for other Management employees in the City and Employee elects to give thirty (30) days written notice of his resignation to the City Council. The written notification of resignation must be given within thirty (30) days of the reduction in Employee's salary or other benefits. (3) The City Council requests the resignation of Employee, and Employee resigns pursuant to that request.
(4) The city manager form of government is abandoned by action of the City Council, vote of ~e people, state legislation, or by any other means. (5) The position of city manager is eliminated by action of the City Council, vote of the people, state legislation, or by any other means.

The severance rights provided in herein shall constitute the sole and only entitlement of Employee with respect to severance pay in the event of the termination, other than for cause.

Notwithstanding any provision of this Agreement to the contrary, City may terminate 6 02.03.2023 - WA V
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Employee's employment for cause at any time, and if Employee is terminated or removed for cause, he shall not be entitled to payment of severance compensation or any other compensation or damages. "Cause" shall include the following reasons.
(1) Employee's breach of this Agreement.
(2) Conviction of any felony. Conviction of a crime, whether misdemeanor or a felony, involving moral turpitude, or arising out of Employee's duties under this Agreement, or under the Political Reform Act, or any offense constituting an "abuse of office or position within the meaning of Government Code Section 53243.4, or under Government Code Section 1090 et. seq. For purposes of this paragraph, a plea of nolo contendere shall also be considered a conviction.
(3) Any willful or grossly negligent act or inaction of: material dishonesty; or that materially and adversely impedes or disrupts the operations of City or its organizational units; or is detrimental to employees or public safety; or is a violation of City established policies, rules, regulations, and procedures. (4) Dishonesty involving employment, including but not limited to falsification of any city report or record or of any report or record required to be, or filed by Employee. (5) Acceptance from any source of any emolument, reward, gift or other form of remuneration in addition to Employee's regular compensation, as a personal benefit to the Employee for actions performed in the normal course of Employee's assigned duties.
( 6) Resume fraud.
(7) Willful abandonment of the duties of the office of city manager. (8) Willful and intentional failure to carry out clear direction or order of the City Council made by the City Council as a body at a Brown Act compliant meeting. (9) Repeated and protracted unexcused absences from the office and duties of city manager.
(10) Continued abuse of drugs or alcohol that materially affects the performance of the duties of city manager.
(11) Willful and intentional failure to carry out materially significant and legally constituted policy decisions of the City Council made by the City Council as a body, or persistent willful violation of properly established rules and procedures. (12) Any other action or inaction by Employee that materially and substantially impedes or disrupts the performance of City or its organizational units, is detrimental to employee safety or public safety, violates properly established rules or procedures, adversely affects the reputation of City, its officers or employees., or has a substantial and adverse effect on City's interests.

8. Compliance with Government Code Section 53243 et seq. (Assembly Bill No. 1344).
(a) In the event City determines to place Employee on paid leave pending an investigation, Employee shall fully reimburse such pay to the City if he is subsequently convicted of a crime involving the abuse of his office or position.
(b) In the event the City determines to fund all or part of a legal criminal defense for Employee, he shall fully reimburse such funds to the City if he is subsequently convicted of a crime 7 02.03.2023 - WA V
215
involving an abuse of his office or position.
( c) Regardless of the term of this Agreement, 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 office or position. (See, Government Code Section 53243.2).
( d) For purposes of this section, "abuse of office or position" shall be as defined in Government Code Section 53243.4.

9. Indemnification.

City agrees to defend, hold harmless, and indemnify Employee against any claims, demands or legal actions, whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope and during the course of Employee's employment with the City, subject to Employee cooperating in good faith with the City with respect to defense of such claims, demands, or legal actions in accordance with the provisions of California Government Code Sections 825 and 825.6. City may compromise and settle any such claim, demand, or action and pay the amount of any settlement or judgment rendered therefrom. This covenant shall survive the termination of this Agreement.

10. Notices.

CITY:

EMPLOYEE:

City of Los Banos
Attn: City Clerk
520 J Street
Los Banos, CA 93635
Josh Pinheiro
520J Street
Los Banos, CA 93635
With a copy addressed to Employee at Employee's home address then shown in City's files.

11. Entire Agreement.

This Agreement represents the entire agreement between the parties and supersedes any and all agreements, either oral or in writing, between the parties with respect to the employment of Employee by City and contains all of the covenants and agreements between the parties with respect 8 02.03.2023 - WA V
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to that 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 is not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding on either party.

12. Drafting of Agreement.

13. Independent Review of Agreement.

14. Modifications.

Any modifications to this Agreement shall be effective only if in writing and signed by both the parties heret-0.

15. Effect of Waiver.

16. Partial Invalidity.

17. Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of California in full force and effect as of the date of execution.

18. Attorney's Fees.

In the event of any legal action between the parties hereto to enforce the provisions of this 9 02.03.2023 - WA V
217
Agreement, the prevailing party shall be entitled to attorney's fees and costs.

19. Representations.

City and Employee each represent and warrant to the other that each has received legal advice from independent and separate legal counsel with respect to this Agreement, or has knowingly declined to obtain such legal advice, and further represent and warrant to each other that each has carefully reviewed this Agreement and each and every term hereof This Agreement shall not be construed against the party or its representatives who draft it or any portion hereof.

20. Counterparts.

This Agreement may be executed on separate copies, any one of which need not contain signatures of more than one party but all of which taken together shall constitute one and the same Agreement.

IN WilNESS WHEREOF, the parties have executed this Agreement as of the date first herein written above.

ATTEST:

Lucille L. Mallonee
City Clerk

APPROVED AS TO FORM BY THE

CITY ATTORNEY FOR THE

CITY OF LOS BANOS
William A. Vaughn
City Attorney

02.03.2023 - WA V
"EMPLOYEE"
Josh Pinheiro
"CITY"
Paul Llanez
Mayor
10 218
TO:

FROM:

DATE:

LOsBanos
Agenda Staff Report
Mayor & City Council Members
Lucy Mallonee, MMC ~
City Clerk/Human Resources Director
February 15, 2023
SUBJECT: League of California Cities Central Valley Division Executive Committee TYPE OF REPORT: Agenda Item
Recommendation:

That the City Council appoint one (1) Council Member to serve on the League of California Cities Central Valley Division Executive Committee and one ( 1) Council Member to serve as the alternate.

Discussion:

Stephen Qualls, Central Valley Regional Public Affairs Manager for the League of California Cities, is requesting that each Member City identify an appointment and an alternate to serve on the Executive Committee. Mr. Qualls is encouraging participation to the regularly scheduled meetings to discuss pending issues and provide direction.

Past practice has been to appoint the Mayor as the City's representative and Mayor Pro Tern as the alternate.

Reviewed by:

Attachment:

Email dated January 23, 2023 from Mr. Qualls
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Lucy Mallonee
From:

Sent:

To:

Subject:

Stephen R. Qualls <[email protected]>
Monday, January 23, 2023 7:22 AM
Adrianne Richardson. Tracy; [email protected]; Candini, Cassandra; Colette Such; Dana Sanchez. Modesto; [email protected]; Dietz, Stephanie; Dominque Romo.

Escalon; Eliza Garza; Fallon Martin. Ceres; [email protected]; [email protected]; Julie Christel. Turlock; Kathy Teixeira. Riverbank; [email protected]; Leticia Vasquez-Zurita. Livingston; [email protected]; Lucy Mallonee; Maricela Vela. Patterson; [email protected]; [email protected]; Olivia Nashed. Lodi; [email protected]; Rose Beristianos. Angels Camp; Teresa Vargas; Ysidro Garcia. Dos Palos
New Mayors and Council Members and Executive Committee
Central Valley Division City Clerks,
For those of you that I have not had the pleasure of meeting, my name is Stephen Qualls and I am the Central Valley Division Public Affairs Manager for the League of California Cities.

I am emailing you for a couple of reasons.

First of all, I have recently updated my city clerks distribution list from out data bank.

If you have received this email and you are not the city clerk for your city, please respond to me with the correct contact information for that person.

Secondly, I would appreciate it if you could please send me the correct contact information for your new mayors or council members including their cell phone numbers. You can assure them that I will keep their numbers confidential as I have for almost every other mayor and council member in the division.

Lastly, if your city has appointed your representative and alternate for our Central Valley Division Executive Committee, could you please send me their names and emails.

If you have not made the appointments yet and plan to do so, please send me that information as soon as the appointment is made.

The committee meets on an as needed basis. Unfortunately, I have not bee able to schedule any meetings because of a lack of participation and responses to my requests from the members that I have on record as having been appointed.

If you could please stress to the appointed members the need to participate as the representative for their city I would appreciate it.

I would like to thank you in advance for your help and please feel free to contact me if you have any questions.

Sincerely,
Stephen Qualls

LEAGUE OF

CALIFORNIA
CITIES
Central Valley Division
Regional Public Affairs Manager
Central Valley Division of the League of California Cities Cell: 209-614-0118
Fax: 209-883-0653
[email protected] www.calcities.org
Twitter Facebook YouTube Linkedln
1 221

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LOsBanos
\t the ( 10!-isroac ~ u1
Agenda Staff Report
TO:

FROM:

Mayor & City Council Members
Lucy Mallonee, MMC .(}ft'-
City Clerk/Human Resources Director
DATE: February 15, 2023
TYPE OF REPORT: Agenda Item
SUBJECT: City Commission Appointments
Recommendation:

Appoint members to the following City Commissions:

Measure H Citizens Oversight Committee
Three (3) Two (2) Year Terms - Expiring December 31, 2024 Tree Commission
One (1) Two (2) Year Term - Expiring December 31, 2024
Discussion:
ia
Staff advertised the above vacancies on the City's website, on social media, and on the bulletin board outside of City Hall. Applicants were interviewed by a committee per City policy. Any remaining vacancies on City commissions will continue to be advertised.

Fiscal Impact:

None
Reviewed by:

Stacy Souza Elms, Interim City Manager
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......... COs Bano
ul , ( alrfot Ill

COMMUNITY AND ECONOMIC DEVELOPMENT DEPARTMENT
Date: February 10, 2023
Regarding: Notice of Public Hearing
Proposal: Mobile Food Vendor Permit #2023-02 - Karen Quintana (dba -Belem Ice Cream)
NOTICE IS HEREBY GIVEN THAT a Public Hearing will be held by the Los Banos Planning Commission to consider a Categorical Exemption from the California Environmental Quality Act (CEQA) and a Mobile Food Vendor Permit #2023-02 to allow the operation of a mobile food vending vehicle on route throughout the City of Los Banos within the public-right-of way for Karen Quintana dba Belem Ice Cream.

A PUBLIC HEARING on this matter will be held at the next scheduled meeting of the Los Banos Planning Commission on Wednesday, February 22, 2023 at 6:00 p.m. in the Council Chambers of Los Banos City Hall, located at 520 "J" Street, Los Banos, California. Questions regarding the above-referenced item may be directed to Rudy Luquin, Associate Planner, at City Hall or at (209) 827-2432.

All persons are invited to be present at the public hearing. Written and oral testimony is invited. Notice is hereby further given that if you challenge the above described Project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this Notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing.

Additional information may be obtained from the Community & Economic Development Department at 520 J Street, Los Banos, California. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Office of the City Clerk at (209) 827-7000. Notification at least 72 hours prior to the public hearing will enable the City to make reasonable arrangements to allow participation at this hearing

THE SBANOS
Rudy
Assa
225

Los Banos City CouncilFebruary 15, 2023

Los Banos City Council
February 15, 2023