The conviction and punishment of any person for failure to pay the require d Cannabis Retailer Tax shall not excuse or exempt such person from any civil action for the Tax debt unp aid at the time of such conv iction. No civil action shall prevent a criminal prosecution for any violation of the provisions of this Chapter 4-36 or of any State law requiring the payment of all taxes.
4-36.21 Violation Deemed Misdemeanor, Infraction or Administrative Violation
Each and every material violation of the provisions of this Chapter 4-36 may be prosecuted as a misdemeanor , infraction, or administrative violation at the discretion of the City Manager. Each day a material vio lation is commit ted or permitted to continue shall constitute a separate offense.
4-36.22 Remedies Cumulative and Not Exclusive.
The remedies provided herein are not to be construed a s exclusive remedies. The City is authorized to pursue any proceedings or remedies provided by law.
SECTION 2. Categorically Exempt fr om CEQA. The People of the City find that the actions contemplated by this Measure, including the taxation of Cannabis Retail Sales, are categorically exempt from the California Environme ntal Quality Act (“CEQA”) under Section 1506 0(c)(2) and Section 1506 0(c)(3) of Title 14 of the State of California (“State”) Code of Regulations and the holding by the State Supreme Court in Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029.
SECTION 3. Conflicting Measures. The People of the City find and declare that the provisions of this Measure relating to the taxati on of cannabis retail sales in the City may conflict with one or more provisions of other initiative me asures. It is th e intent of City Council Regular Meeting - Page 643 of 664
12 the People that if this Measure receives a greater number of affirmative votes than a conflicting measure at the same electi on, this Measure shall prevail in its entirety over a conflicting measure.
SECTION 4. Inconsistencies. Any provision of the City Municipal Code or appendices thereto in consistent with the provisions of this Measure, to the extent of such inconsistencies and no further, is hereby repeale d or modified to that extent necessary to affect the provisions of this Measure.
SECTION 5. Severability. If a ny p rovision, section, p aragraph, sentence, phrase, or word of this Measure is rendered or declared invalid, illegal, or unconstitutional by an y final action in a court of competent jurisdiction or by reason or a ny preemptive legislation, such unconstitutionality illegality or invalidity shall only affect such provision, section, par agraph, sentence, phrase, or w ord and shall not affect or impair any remaining provisions, sections, paragraphs, sentences, phrases, or words, or the application of this Measure to any other person or circumstance, and to that end, the provisions hereof are severable. It is hereby dec lared to be the intention of the P eople of the City that that this Measure would have been adopted had such unconstitutional illegal or invalid pro vision, section, paragra ph, sentence, phrase, or word not been included herein.
SECTION 6. Liberal Construction. This Measure is an exercise of the initiative power of the People of the City to provide for saf e a nd regulated a ccess to cannabis and cannabis products, and shall be liberally construed to effectuate that purpose.
SECTION 7. Legal Defense. If approved by a simple majority of vo ters, and thereafter challenged in court of competent jurisdiction, t he City shall defend this Measure in such court of competent jurisdiction. The People of the City by approving this Measur e by a simple majority of vote rs hereby declare that the propone nt(s) of this Measure have a direct and personal stake in defending t his Measure from constitutional or statutory challenges to this Meas ure’s validity or implementation. In the event the Cit y fails to defend this Measure , or the City fails to appeal an a dverse judgment against this Measure, in whole or in part, in any cou rt of competent j urisdiction, this Measure’s proponent(s) shall be e ntitled to assert his /her, or their direct personal st ake by defending this Measure ’s validity and implementation in any court of competent jurisdiction and shall be empowered by the Peo ple through this M easure to act as agents of the People of the City, and the City shall indemnify the proponent(s) for reasonable attorneys’ fees.
SECTION 8. Effective Date. This Measu re shall be in full force and effect upon the tenth day following cer tification by the City Council of the electio n re turns indicating passage of this Measure by a majority of the voters casting votes on this Measure.
SECTION 9. City Clerk Certification. The City Clerk of the City of Lynwood shall certify as to the adop tion of this Ordina nce and shall cause the sam e to be posted in the manner required by law.
City Council Regular Meeting - Page 644 of 664
13 INTRODUCED on this ______ day of July, 2022, and passed to print and approved to be placed on the November 8, 2022 Election Ballot by the following called vote:
Members of the City Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Jorge Casanova, Mayor
APPROVED by the following vote of the People of the City of Lynwood on November ___, 2022:
YES:
NO:
ADOPTED by Declaration of the vote at the November ____, 2022 Election by the City Council of the City of Lynwood on ________________, 2022:
Members of the Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Jorge Casanova, Mayor
ATTEST:
____________________________
Maria Quinonez
City Clerk
City Council Regular Meeting - Page 645 of 664
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD, CALIFORNIA, PLACING A BALLOT MEASURE ON THE NOVEMBER 8, 2022 GENERAL MUNICIPAL ELECTION FOR THE SUBMISSION TO
THE QUALIFIED VOTERS OF THE CITY OF LYNWOOD, ORDINANCE NO. ____ ENACTING A CANNABIS RETAILER BUSINESS LICENSE
TAX; SETTING DEADLINES FOR FILING WRITTEN ARGUMENTS FOR
AND AGAINST THE INITIATIVE MEASURE, AND REBUTTALS
THEREOF; DIRECTING THE CITY ATTORNEY TO PREPARE AN
IMPARTIAL ANALYSIS; AND RELATED MATTERS TO SAID
MUNICIPAL ELECTION
WHEREAS, the City Council of the City of Lynwood, California, has called a General Municipal Election to be held on Tuesday, November 8, 2022, for the election of three City Councilmembers for a full four-year term; and
WHEREAS, the City Council desires to submit to the voters for approval or denial an ordinance establishing a Cannabis Retailer Business License Tax; and
WHEREAS, the City Council of the City of Lynwood introduced Ordinance No. ____ on July 19 , 2022, proposing a business license tax on cannabis retailers to be deposited in the City General Fund and used for general City purposes, including but not limited to senior citizen programs, City beautification efforts, enforcement of illegal cannabis operations, public safety, housing programs, recreation services, infrastructure, homeless reduction and other City efforts that residents need and want; and
WHEREAS, the Ordinance was published as required by law; and
WHEREAS, the submittal of Ordinance No. ____ to a vote of the electorate is exempt as a revenue measure for the ordinary expenses of the City from California Environmental Quality Act (CEQA) review pursuant to CEQA Guidelines Section 15273; and
WHEREAS, pursuant to Section 2(B) of Article X IIIC of California’s Constitution, the City Council may submit a local tax measure to voters at a general municipal election.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LYNWOOD,
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
SECTION 1. That based upon staff presentations, reports, public testimony, and other matters presented to the City Council during its consideration of this matter, the foregoing recitals are true and correct and incorporated as substantive findi ngs of this Resolution, and further makes the additional findings set forth below in this Resolution.
City Council Regular Meeting - Page 646 of 664
SECTION 2. That the City Council, pursuant to its right and authority, does order submitted to the voters at the General Municipal Election, to be held on November 8, 2022, the following question requiring majority approval of the votes cast on the question.
SECTION 3. That the proposed complete text of the Ordinance submitted to the voters is attached hereto as Attachment No. 1 and is approved by the City Council.
SECTION 4. Authorizing that the full text of the Ordinance not be printed in the voter guide, but direct City Attorney to prepare an impartial analysis to be included in the voter guide, and the impartial analysis shall indicate that the qualified voters of the City of Lynwood will be able to obtain a full copy of the Ordinance, at no cost, by contacting the City Clerk or accessing the City’s website.
SECTION 5. That the City Clerk shall request a letter designation for the above - referenced Measure from the Register -Recorder/County Clerk of the County of Los Angeles.
SECTION 6. That the City Council hereby authorizes written arguments for and against the Measure to be filed with the City Clerk, signed, with the printed name(s) and signature(s) of the author(s) submitting it, or if submitted on behalf of an organization, the name of the organization, and the printed name and signature of at least one of its principal officers who is the author of the argument. Any member of the City Council is authorized to submit an argument in favor of the Measure. The arguments sha ll be accompanied by the form of statement to be filed by author(s) of argument . Written arguments for and against the Measure shall be filed with the City Clerk’s Office, by Friday, August 19, 2022, before 5:00 p.m.
Shall the City adopt Ordinance No. ___ establishing a 5%, but not to exceed 10% tax on businesses selling cannabis products at retail stores in the City to help fund City general fund services such as senior citizen programs, City beautification efforts, enforcement of illegal cannabis operations, public safety, housing programs, recreation services, infrastructure, and homeless reduction and other City efforts? Estimated revenues are $ 3 to $6 million annually until terminated by the City Council.
YES
NO
City Council Regular Meeting - Page 647 of 664
SECTION 7. That the City Council directs the City Clerk to transmit a copy of the Ordinance/Measure to the City Attorney and direct the City Attorney to prepare an impartial analysis of the proposed Measure, consistent with the requirements of Elections Code Section 9289, including:
a. The City Attorney shall prepare an impartial analysis of the Measure not exceeding 500 words showing the effect of the Measure on the existing law and the operation of the Measure.
b. The analysis shall include a statement indicating whether the Measure was placed on the ballot by a petition signed by the requisite number of voters or by the governing body of the City.
c. In the event the entire text of the Measure is not printed on the ballot, nor in the voter information portion of the Voter Information Guide, there shall be printed immediately below the impartial analysis, in no less than 10-point type, the following: “The above statement is an impartial analysis of Ordinance or Measure __. If you desire a copy of the Ordinance or Measure, please call the Election Official’s Office at (310) 603-0220 ext. 214, and a copy will be mailed at no cost to you.”
d. The impartial analysis shall be filed by Friday, August 19, 2022, before 5:00 p.m. with the City Clerk.
SECTION 8. That the City Council hereby aut horizes rebuttal arguments to be filed with the City Clerk. That pursuant to Section 9285 of the Elections Code, rebuttal arguments shall be submitted and processed as follows:
a. When the elections official has selected the arguments for and against the Measure, the elections official shall send a copy of an argument in favor of the proposition to the authors of any argument against the Measure and a copy of an argument against the Measure to the authors of any argument in favor of the Measure immediately upon receiving the arguments.
b. The author or a majority of the authors of an argument measure may prepare and submit a rebuttal argument not exceeding 250 words or may authorize in writing any other person or persons to prepare, submit, or sign the rebuttal argument.
c. The rebuttal arguments shall be filed with the City Clerk not later than Monday, August 29, 2022, before 5:00 p.m. Rebuttal arguments shall be signed, with the printed name(s) and signature(s) of the author(s) submitting it, or if submitted on behalf of an organization, the name of the organization, and the printed name and signature of at least one of its principal officers. The rebuttal arguments shall be accompanied by the form of statement to be filed by author(s) of argument.
City Council Regular Meeting - Page 648 of 664
d. Rebuttal arguments sh all be printed in the same manner as the direct arguments. Each rebuttal argument shall immediately follow the direct argument which it seeks to rebut.
SECTION 9. That the City Council hereby establishes August 20, 2022 through August 29, 2022, as the te n (10) calendar day examination period required by Elections Code Section 9295 for review of the ballot arguments for and against the Measure, and the impartial analysis, which voters may examine on the City’s website at www.lynwood.ca.us, and in the City Clerk’s office at 11330 Bullis Road , Lynwood, CA 90262, Monday – Thursday between the hours of 7 a.m. to 6 p.m.
SECTION 10. That the City Council hereby establishes August 30, 2022 through September 8, 2022, as the ten (10) calendar day examination period required by Elections Code Section 9295 for review of the rebuttal arguments for and against the Measure, which voters may examine on the City’s website at www. lynwood.ca.us, and in the City Clerk’s office at 11330 Bullis Road, Lynwood, CA 90262 , Monday – Thursday between the hours of 7 a.m. to 6 p.m.
SECTION 11. That a statement shall be printed in the ballot pursuant to the Elections Code advising voters that they may obtain a full copy of the Ordinance, at no cost, upon request to the City Clerk.
SECTION 12. That the City Clerk is hereby authorized and directed to file a certified copy of this Resolution with the Board of Supervisors and the County Elections Department of the County of Los Angeles.
SECTION 13. That this Resolution shall take effect immediately upon its adoption.
SECTION 14. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions.
PASSED, APPROVED, AND ADOPTED this 19th day of July 2022.
ATTEST: CITY OF LYNWOOD
_________________________ ___________________________________ Maria Quinonez, City Clerk Jorge Casanova, Mayor
City Council Regular Meeting - Page 649 of 664
APPROVED AS TO FORM:
___________________________________
Noel Tapia, City Attorney
City Council Regular Meeting - Page 650 of 664
Agenda Item # 19.
AGENDA STAFF REPORT
DATE:
July 19, 2022
TO:
Honorable Mayor and Members of the City Council
APPROVED BY:
Noel Tapia, City Attorney
PREPARED BY:
Noel Tapia, City Attorney
SUBJECT:
APPROVING AN AMENDED AND RESTATED EMPLOYMENT SERVICES
AGREEMENT FOR THE POSITION OF CITY MANAGER
Recommendation:
Staff recommends that the City Council of the City of Lynwood approve: "A RESOLUTION OF THE CITY OF
LYNWOOD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, APPROVING AN AMENDED AND RESTATED EMPLOYMENT SERVICES AGREEMENT FOR THE POSITION OF CITY MANAGER."
Background:
City Manager Ernie Hernandez's Employment agreement requires the City Council to perform an annual employee evaluation and to simultaneously consider the City Manager's compensation and benefits.
Discussion and Analysis:
The City Council conducted its evaluation of the City Manager and provided a unanimously positive performance evaluation of the City Manager's work product. In addition, the City Council has discussed contract amendments requested by the City Manager. The City Council has expressed its desire to continue to retain the services of Mr.
Ernie Hernandez as the City Manager of the City of Lynwood, and to provide inducement for him to remain in such employment, and to make possible full work productivity by assuring City Manager's morale and peace of mind with respect to future security.
A proposed resolution approving the amendment and restated employment agreement by and between the City and Mr. Hernandez is attached for the Council's consideration. The amendment contains the following revised benefits:
1 .
Modification of annual performance incentive provisions (Section 5.4) 2 .
Addition of provisions granting a professional development allowance to continue professional training and education (Section 6.1)
3 .
Modification of technology provisions and allowances (section 6.2) 4 .
Modification of continuous city service provisions and allowances (Section 6.6) City Council Regular Meeting - Page 651 of 664
Additionally, the amended and restated employment agreement includes modifications to existing contract language related to addressing and clarifying ambiguous and/or misstated language. The proposed revised benefits, as set forth above, will commence accumulating at the employment anniversary of the City Manager.
Fiscal Impact:
Amendments to the benefits in the current employment agreement are budgeted in the 2021-2023 Citywide Budget.
Coordinated With:
N/A
ATTACHMENTS:
Description
Resolution
CM Draft Contract
City Council Regular Meeting - Page 652 of 664
RESOLUTION NO. _____________
“A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD ,
COUNTY OF LOS ANGELE S, STATE OF CALIFORN IA APPROVING AN
AMENDED AND RESTATED EMPLOYMENT SERVICES AGREEMENT FOR
THE POSITION OF CITY MANAGER.”
WHEREAS, the City of Lynwood is a General Law City under California law and is governed by and elected City Council; and
WHEREAS, on April 19 th, 2022 , the City Council of the City (“City Council”) conducted a performance evaluation of City Manager and is satisfied with the quality of his performance to date; and
WHEREAS, it is the desire of the City Council to continue to retain the services of City Manager as City Manager of the City, as provided by the City’s Municipal Code, and to (i) secure and retain the services of City Manager and provide inducement for him to remain in such employment, and (ii) to make possible full work productivity by assuring City Manager’s morale and peace of mind with respect to future security; and
WHEREAS, it is further des ire of the City Council to provide certain benefits, establish certain conditions of employment, and extend the term of the Employment Agreement, as set forth in the Amendment; and
WHEREAS, City Manager desires to continue employment as City manager of the City.
WHEREAS, the City Council has approve d the request to hire the City Manager under an “at-will” employment agreement, a copy of which is attached hereto as Exhibit “A.”
NOW, THEREFORE, THE LYNWOOD CITY COUNCIL DOES HEREBY
RESOLVE AND DETERMINE AS FOLLOWS:
Section 1. The City Council of the City of Lynwood hereby finds and declares that the foregoing recitals are true and correct, and incorporates them herein as findings and as a substantive part of this Resolution.
Section 2. The City Council hereby approves the Amend ed and Restated Employment Agreement substantially in the form attached hereto as Exhibit A, and authorizes and directs the Mayor to execute the Amend ed and Restated Employment Agreement on behalf of the City. The Amended and Restated Employment Agreement shall be effective retroactive to the one-year anniversary date of the City Manager’s employment date with the City.
Section 3. That the revised benefits as set forth in the employment agreement and as authorized by this Resolution will commence accumulating at the anniversary of the City Manager.
City Council Regular Meeting - Page 653 of 664
Section 4. That the City Managers accruals are credited with 100 vacation hours as granted per the annual performance incentive provisions as set forth in the employment agreement and as authorized by this Resolution.
Section 5. Authorize the Mayor to execute the Resolution for and on behalf of the City of Lynwood.
Section 6. That this Resolution is to be given effect upon its adoption by the City Council of the City of Lynwood and execution of the same by the appropriate parties.
PASSED, APPROVED and ADOPTED this 19th day of July, 2022
Jorge Casanova
MAYOR
ATTEST:
Maria Quinonez
CITY CLERK
APPROVED AS TO FORM:
Noel Tapia
CITY ATTORNEY
City Council Regular Meeting - Page 654 of 664
THE CITY OF LYNWOOD CITY MANAGER AMENDED AND RESTATED AGREEMENT This at-will CITY MANAGER ("Agreement") is effective March 22, 2021 ("Effective Date"), by and between the CITY OF LYNWOOD, a general law city and municipal corporation ("City") and Ernie Hernandez an individual ("City Manager"). RECITALS WHEREAS, the City Council of the City ("Council") now desires to employ Ernie Hernandez in the at-will position of the City Manager for the City; WHEREAS, City Manager desires to perform and assume responsibility for the provisions of such professional services to the City; WHEREAS, the parties wish to establish the terms and conditions of the City Manager services to the City as described in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the City and City Manager hereby agree as follows: AGREEMENT 1.0 EMPLOYMENT AND DUTIES 1.1 Duties. City hereby employs Ernie Hernandez to serve as the City's City Manager, to perform the functions and duties of a City Manager as such duties are customarily performed by a person in such position, as specified in any position description for the City Manager, and to perform such other legally permissible and proper duties and functions as the City Manager shall, from time-to-time, direct or assign, including, but not limited to, the duties of the City Manager of the City, unless said duties are reassigned by the City Manager. 1.2 Work Schedule. The parties agree that the City Manager shall engage in the hours of work that are necessary to fulfill the obligations of the position and must devote time in addition to the City's regular business hours to the business of the City. City Manager acknowledges that City Hall is open Mondays through Thursdays from 7:00 a.m. to 6:00 p.m. and is closed on Fridays, such that the City's standard work week is four (4) 10-hour days. Notwithstanding the foregoing, City Manager will be permitted reasonable time off during the City's business hours upon proper approval and as permitted by accrued leave time, as is customary for exempt employees, so long as the time off does not interfere with the City's business. 1.3 Direction. The City shall retain full direction and control of the manner, means and methods by which the City Manager performs the services for which he is employed hereunder and of the place or places at which such services shall be rendered. 1.4 Employment Status; At-Will City Manager shall serve at the will and City Council Regular Meeting - Page 655 of 664
pleasure of the City Council and understands he is an "at-will" employee subject to summary dismissal without any right of notice or hearing, including any so- called Skelly hearing. The City Council may terminate the employment of the City Manager at any time, with or without cause, as set forth in Section 3.2 below. The Parties acknowledge that, while the City Manager is afforded the benefits described in Article 6.0, as those benefits are provided to other employees within the Lynwood Employees Management Bargaining Group ("LEMG") in accordance with the Comprehensive Memorandum of Understanding for Submission to the Lynwood City Council Regarding Lynwood Employees Management Bargaining Group ("MOU"), as may be amended from time to time, a copy of which is attached hereto as Exhibit "A," City Manager is not an employee represented by any bargaining unit, and nothing in this Agreement or the City's policies or procedures, either now or in the future, is intended to change the at-will nature of this relationship. 1.5 City Documents. All data, studies, reports, and other documents prepared by the City Manager while performing his duties during the term of this Agreement shall be furnished to and become the property of the City, without restriction or limitation on their use. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to the City Manager in connection with the performance of this Agreement shall be held confidential by the City Manager to the extent permitted by applicable law. Such materials shall not, without the prior written consent of the Council, be used by the City Manager for any purposes other than the performance of his duties for the City. Nor shall such materials be disclosed to any person or entity not connected with the performance of services under this Agreement, except as required by law. 1.6 FLSA Exempt Status. City Manager agrees that his position is that of an exempt employee for the purposes of the Fair Labor Standards Act. 2.0 COMPENSATION AND REIMBURSEMENT 2.1 Compensation. As compensation for the services to be rendered by City Manager, City agrees to pay City Manager a salary of $217,000 per year ("Salary") payable in twenty-six (26) biweekly installments at the same time as other employees of the City are paid and subject to customary withholding. The Salary shall be adjusted for payroll taxes, workers' compensation, and other payroll-related liability costs. City Manager understands and agrees that his compensation for the first pay period that he is working for the City shall be prorated consistent with all applicable laws, if he is commencing work in the middle of a pay period. City Manager shall be eligible for a Salary increase one year from the Effective Date. 2.2 457 Payment Compensation. As additional compensation for the services to be rendered by City Manager, City agrees to pay City Manager in addition to his salary above an annual payment equivalent to the elective deferral limit for that calendar year to City Manager's 457 Account ("457 Compensation") payable in twenty-six (26) biweekly installments at the same time as other employees of the City are paid and subject to customary withholding. City Manager understands and agrees that his compensation for the first pay period that he is working for the City shall be prorated consistent with all applicable laws, as he is commencing work in the middle of a pay period.
City Council Regular Meeting - Page 656 of 664
2.3 Annual Review. The City and the City Manager agree to conduct a review concurrently with the annual performance evaluation set forth in Article 5.0, below. City Manager shall receive any Cost of Living Adjustment ("COLA") consistent with or provided to other LEMG members under the MOU. In addition, a merit increase may be granted on the City Manager's one year anniversary in the sole discretion of the City Council. City Manager is also eligible for performance incentives that may be awarded in the sole discretion of the City Council. Any future Salary increases shall include a PERS pick-up until City Manager reaches his 8% employee contribution as noted in Section 6.5. 2.4 401(a) Retiree Health Plan Costs. The City shall contribute two percent (2%) of City Manager's salary, as set forth in Section 2.1 of this Agreement into a qualifying retirement savings plan on behalf of employee in recognition of future retiree health plan costs. 2.5 Effectuating Salary Adjustment. City and City Manager agree that any upward adjustment in the Salary paid to City Manager shall be at the sole discretion of the City Council. 3.0 TERM 3.1 Commencement & Effective Date. City Manager shall commence his services hereunder at 7:00 a.m. Pacific time on March 22, 2021, which shall also be deemed the effective date of this Agreement. City Manager agrees to remain in the employ of the City until March 31, 2024, (the "Termination Date"). 3.2 Termination. The City may terminate this Agreement at any time with or without cause, for any reason whatsoever, without notice to the City Manager. Additionally, City Manager may terminate this Agreement at any time with or without cause, with at least sixty (60) days' advance written notice prior to the effective last work day, unless a shorter period is acceptable to the City Council. City Manager expressly agrees that any for cause termination of this Agreement initiated by the City shall not entitle City Manager to any severance pay; whereas, without cause termination of this Agreement initiated by the City shall entitle City Manager, upon the effective date of such termination, to severance pay as provided in Section 4.1 below, and all accrued but unpaid Salary and vested benefits through the date of termination., and all accrued but unpaid Salary and vested benefits through the date of termination. 3.3 Cooperation. After notice of termination, City Manager shall cooperate with the City, as requested by the City, to effect a transition of City Manager's responsibilities and to ensure that the City is aware of all matters being handled by City Manager. 4.0 SEVERENCE 4.1 Severance Benefit A. City Manager is an at-will employee and serves at the will and pleasure City Council Regular Meeting - Page 657 of 664
of the City Council and may be terminated at any time without cause. B. In the event that City Manager is terminated by the City Council more than one-hundred-eighty (180) days after working for the City, for reasons other than physical or mental incapacity, or those reasons noted in subsection E., below, the City agrees to pay City Manager severance pay equal to six (6) months salary (but not benefits) at the City Manager's salary at the date of termination. The severance benefit shall be increased to nine (9) months on April 1, 2022 and shall be increased to twelve (12) months on February 1, 2023. C. To be eligible for severance pay, as identified in Paragraphs Band C of this section, City Manager shall fulfill all of his obligations under this Agreement and shall sign an acknowledgement and release of claims against the City. Such acknowledgement and release appears as Attachment "B'' to this Agreement. D. All severance payments shall be paid within thirty (30) calendar days of City Manager's last date of employment. E. Notwithstanding subsections A, B and C, above, if Employee retires or is terminated due to personal dishonesty by City Manager in performing City Manager's duties, City Manager's insubordination or failure to follow City policies, procedures, rules or regulations, actions by City Manager that are detrimental to the reputation of the City, conflicts of interests or breach of fiduciary duties, acts of fraud or misrepresentation or any act of malfeasance, incapacity, dereliction of duty, gross negligence, addiction to a controlled substance or alcohol, which addiction impairs City Manager's job performance, conviction of a crime involving moral turpitude or involving personal gain to him, any felony or a breach of this Agreement, City shall have no obligation to pay any severance provided in this section. 4.2 Payment For Accrued Benefits. Except as provided for in Article 6.0, upon the termination of this Agreement and the services of the City Manager there under, City shall pay to City Manager the cash equivalent of leaves then accrued. Such cash equivalent shall be calculated by dividing City Manager's then-prevailing annual salary by 2080 hours and by multiplying the resulting quotient by the number of hours accrued (but unused) vacation, as the case may be. 4.3 Sole Rights. The severance rights provided in this Article 4.0 shall constitute the sole and only entitlement of City Manager in the event of the termination, and City Manager expressly waives any and all other rights except as provided herein. Any and all severance rights are conditioned upon execution of standard "Agreement of Separation, Severance and General Release" attached hereto as Exhibit "B." 4.4 Gov. Code Section 53260(a) Provision. Any other term of this Agreement notwithstanding, the maximum severance that City Manager may receive under this Agreement shall not exceed the limitations provided in Government Code Sections 53260-53264, or other applicable law.
City Council Regular Meeting - Page 658 of 664
5.o PERFORMANCE EVALUATIONS. 5.1 Purpose. The performance review and evaluation process set forth herein is intended to provide review and feedback to City Manager so as to facilitate a more effective management of City. Nothing herein shall be deemed to alter or change the at-will employment status of City Manager, nor shall this Article 5.0 be construed as requiring "cause" to terminate this Agreement or the services of City Manager there under. 5.2 Six Month Evaluation. The City Council may review and evaluate the performance of the City Manager within six (6) months after the commencement of this Agreement. The City Council may consider the City Manager's performance in light of Approved Goals or other criteria as deemed appropriate by the City Co u n c i 1. Such review and evaluation shall be conducted in accordance with the purpose noted in Section 5.1 above. 5.3 Annual Evaluation. The City Council may review and evaluate the performance of the City Manager annually, within thirty (30) days after each anniversary date. In addition, City Manager shall submit for City Council's consideration at those times established by the City Council, but at least annually City Manager's proposed performance goals and objectives and incorporate the City Council's suggestions. Such review and evaluation shall be conducted concurrently with an annual review, and in accordance with the purpose noted in Section 5.1 above. 5.4 Annual Performance Incentive. The City Council may provide an annual performance incentive of up to 100 vacation hours to be credited to the City Manager’s accruals based on meeting performance goals and objectives. Such evaluation for the performance incentive shall be conducted concurrently with an annual review, and in accordance with the purpose noted in Section 5.1 above. 5.5 Council Election. Pursuant to provisions of Section 2-2.9(b) of the Lynwood Municipal Code. The City Manager shall not be removed from office during or within a period of ninety (90) days succeeding any general municipal election held in the City at which election a member of City Council is elected. 6.0 BENEFITS 6.1 Automobile. City shall provide to City Manager a Hybrid or other Alternative Fuel vehicle for City Manager's exclusive, official use. Employer shall be responsible for purchase or lease, operation, maintenance, repair and appropriate replacement thereof In lieu of an automobile allowance the City Manager shall receive a professional development allowance of $500.00 per month to continue professional training and education payable in accordance with Section 6.10 of this agreement. City Manager understands that any applicable taxes are his responsibility to pay and not covered by the City. 6.2 Electronic Media Allowance. The City shall provide or pay for City Manager’s cellular phone plan and equipment costs. In addition, the City shall provide an Electronic Media Allowance of three hundred and 00/100 Dollars ($300.00) per month. The Electronic Media Allowance shall be compensation for the cost associated with the purchase and use of technology City Council Regular Meeting - Page 659 of 664
and program applications to be used for City-related business, and shall be paid to the City Manager in accordance with Section 6.10 of this agreement. City Manager understands that any applicable taxes are his responsibility to pay and not covered by the City. 6.3 Master's Degree Pay. In accordance with the MOU, as may be amended from time to time, the City shall provide City Manager Master's Degree pay consistent with the pay paid to LEMG members ("Bachelor/Master's Degree Pay"), which as of the date of this Agreement is two hundred dollars and fifty Dollars ($250.00) per month. The Master's Degree Pay shall be paid upon submitting proof of the degree, and shall be paid to the City Manager through payroll with applicable taxes and liabilities. City Manager understands that any applicable taxes are his responsibility to pay and not covered by the City. 6.4 Medical, Dental, Vision and Life Insurance. City shall provide to the City Manager the same group medical, dental, vision, and life insurance plans and/or programs as are offered to LEMG members in accordance with the MOU. The City's contribution on behalf of the City Manager toward any PERS health insurance plan shall be at the family premium rate for Kaiser coverage, as may be amended by the MOU. In addition, the City will pay the cost of dental plan premiums and vision plan premiums for the City Manager and his eligible dependents according to the MOU. The City shall provide and pay for a life insurance policy to the City Manager in the amount of fifty thousand and 00/100 Dollars ($50,000.00). 6.5 PERS. The City shall pay six percent (6%) of the City Manager's share of all required retirement contributions to the California Public Employees' Retirement System ("PERS"). The City will also afford the City Manager the retirement benefit commonly referred to as "3% at 60." Any future Salary increases provided to City Manager shall include additional PERS pick-up until City Manager reaches his 8% employee contribution. 6.6 Vacation, Personal and Sick Leave. In accordance with the a pp 1 i cab 1 e and current LEMG MOU, and subject to vacation, personal and sick leave accruals as outlined in the Management Benefit Plan, City Manager shall accrue leave factoring City Manager's twenty-three (23) years of public sector service that shall be considered continuous city service per Article 35 & 36 of the MOU; Vacation at the rate of one hundred sixty (160) hours per year; Sick leave at a rate of ninety-six (96) hours per year; and personal leave at a rate of twenty (20) hours per year. Additionally, City Manager's twenty-three (23) years of public service shall be considered in the calculation of longevity pay. City Manager's accrual rates shall be revised if the accrual rates, as set forth in the Management Benefit Plan, are revised. Additionally, as further described in the Management Benefit Plan sell back provisions, vacation, executive, personal or floating leave may be converted into cash, up to one hundred (100) hours in one calendar year. 6.7 Holidays. In accordance with the MOU, City Manager shall be entitled to eleven (11) days of paid holiday time and a total of five (5) floating holidays per year. The aforementioned holiday benefits shall be subject to adjustment as may be revised by the MOU. 6.8 Executive Leave. In accordance with the MOU, City Manager shall accrue executive leave at the rate of ninety (90) hours per year. Executive leave shall not carry over from year-to-year. The aforementioned leave benefits shall be subject to adjustment as may be revised City Council Regular Meeting - Page 660 of 664
by the MOU. 6.9 Additional Benefits. In addition to the benefits set forth in this Agreement, the City Manager shall receive the benefits provided by the City to LEMG members under the MOU, excluding any License and Certificate Incentive Pay. To the extent benefits provided under this Agreement are similar to those provided to the LEMG members under the MOU, the City Manager shall receive only those benefits provided under this Agreement, and not both. 6.10 Reporting of Benefits as Miscellaneous Income. All benefits provided to City Manager as defined in this Section or otherwise provided to City Manager shall not be reported as income on the W-2 form issued annually to the City Manager, but City will report the same as miscellaneous income through the issuance of a IRS 1099 Form. 7.0 PROFESSIONAL DEVELOPMENT 7.1 Membership. The City encourages City Manager continued professional development and membership and shall provide payment of appropriate related costs for such activities, as approved by the City Manager. 7.2 Out-of-Town Meetings & Seminars. The City agrees to reimburse the City Manager the actual cost for registration, travel, lodging, meals, and other reasonable expenses incurred by the City Manager while attending overnight out-of-town meetings or seminars related to his employment with the City, which are pre-approved by the City Council and in accordance with the City's policies for expense reimbursement. To be eligible to receive reimbursement for meals and lodging for out-of-town meetings or seminars, City Manager must have budgeted funds available for same. 7.3 Local Meetings & Seminars. The City agrees to reimburse City Manager the actual cost of registration, meals, and other reasonable expenses necessarily incurred while in attendance at local meetings or seminars related to his employment with the City in accordance with the City's policies for expense reimbursement. 7.4 Incidental Expenses. The City agrees to reimburse City Manager the actual cost of those incidental expenses necessarily incurred by City Manager while engaged in the business of the City upon the presentation of an appropriate receipt therefore in accordance with the City's policies for expense reimbursement. 7.5 Approval by City Council. To be eligible to receive reimbursement for the memberships, travel, and other expenses incurred pursuant to this Article 7.0, City Manager must have budgeted funds available for the same. 8.0 INDEMNIFICATION 8.0 For the purposes of indemnification and defense of legal actions, City Manager shall be considered an employee of the City and entitled to the same rights and subject to the same obligations as are provided for all other employees of the City as set forth in the California Government Code. Accordingly, City shall defend, hold harmless and indemnify City Manager against any tort, professional liability, claim or demand, or other legal action arising out of an City Council Regular Meeting - Page 661 of 664
alleged act or omission occurring in the performance of City Manager's services under this Agreement. This section shall not apply to any intentional tort or crime committed by City Manager, to any action outside the course and scope of the services provided by City Manager under this Agreement, or any other intentional or malicious conduct or gross negligence of City Manager. 9.0 GENERAL PROVISIONS 9.1 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, either oral or in writing, between the parties with respect to City Manager's employment by the City and contains all of the covenants and agreements between the parties with respect to such employment. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either party, or anyone Assistant on behalf of either party, which are not embodied herein, and that no other agreement, statement or promises not contained in this Agreement shall be valid or binding upon either party. 9.2 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be personally served or shall be sufficiently given when served upon the other party as sent by United States Postal Service, postage prepaid and addressed as follows: To City: City Council City of Lynwood 11330 Bullis Road Lynwood, California 90262 To City Manager: At his home address on file with the City City Council Regular Meeting - Page 662 of 664
Notices shall be deemed given as of the date of personal service or within two (2) days of the date of deposit in the course of transmission with the United States Postal Service. 9.3 Conflicts Prohibited. During the term of this Agreement, City Manager shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of City Manager duties under this Agreement. City Manager shall comply with all requirements oflaw, including but not limited to, Sections 87100 et seq., Section 1090 and Section 1125 of the Government Code, and all other similar statutory and administrative rules. 9.4 Effect of Waiver. The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times. 9.5 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 9.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, which are in full force and effect as of the date of execution. 9.7 Independent Legal Advice. The City and City Manager represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this Agreement, and the City and City Manager further represent and warrant that each has carefully reviewed this entire Agreement and that each and every term thereof is understood and that the terms of this Agreement are contractual and not a mere recital. This Agreement shall not be construed against the party or its representatives who drafted it or who drafted any portion thereof. 9.8 AB 1344. Assembly Bill 1344 was recently enacted asa means to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. AB 1344 also requires that contracts between a local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency (California Government Code §§ 53243 - 53243.4). These sections are set forth in full in Exhibit "B" attached hereto and incorporated herein. Accordingly, the parties agree that it is their mutual intent to fully comply with the Government Code sections that are part of AB 1344 and all other applicable law as it exists as of the date of execution of this Agreement and as such laws may be amended from time to time thereafter. Specifically, AB 1344 includes the following Government Code sections which are hereby incorporated by this Agreement: §53243. Reimbursement of paid leave salary required upon conviction of crime involving office or position.
City Council Regular Meeting - Page 663 of 664
§53243.1. Reimbursement of legal criminal defense upon conviction of crime involving office or position. §53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position. §53243.3. Reimbursement of non-contractual payments upon conviction or crime involving office or position. §53243.4. Abuse of office or position defined. City Manager has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to City Manager, including that City Manager agrees that any cash settlement or severance related to the termination that City Manager may receive from the City shall be fully reimbursed to the local agency if City Manager is convicted of a crime involving an abuse of his or her office or position. IN WITNESS WHEREOF, the City of Lynwood has caused this Agreement to be signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly authorized, and City Manager has signed and executed this Agreement, all in triplicate. CITY OF LYNWOOD _____________________________ Jorge Casanova, Mayor ATTEST: ______________________________ Maria Quinonez, City Clerk APRROVED AS TO FORM: ______________________________ Noel Tapia, City Attorney City Council Regular Meeting - Page 664 of 664