• Plan for facility expansion, storage facilities, and equipment purchases. Assure safe storage of volatile materials that meet State OSHA requirements and regulations. Prepare specifications for projects and equipment. Implement Federal and State mandates.
• Prepare or supervise the timely preparation of mandatory annual reports to the Federal, State, and other agencies. Prepare additional periodic reports for the City Manager and City Council.
MINIMUM QUALIFICATIONS:
• Knowledge of – Principles, practices and programs related to municipal public works administration. Generally civil engineering standards and legal guidelines for public works projects. Principles, practices and procedures in municipal budgeting, public administration, and municipal management. Organization and management practices applicable to the analysis and evaluation of operational needs. Funding sources applicable to program and service development. Supervisory principles and practices as they relate to the public sector. Principles and practices of contract administration and evaluation. Applicable Federal, State, and local laws, regulations, and codes. Correct use of oral and written English, and proper spelling, punctuation, and composition. Mathematical and statistical analysis and theory. General computer uses and database management theory.
• Skilled in - Planning, organizing, administering, and coordinating a variety of public works maintenance programs and services, and assigning and directing the work of staff. Providing skilled analytical and management staff support to the City Manager. Conducting complex analytical studies, evaluate alternatives and make effective recommendations. Reading, interpreting, and applying complex procedures, policies, rules and regulations. Negotiating and representing City interests. Organizing and prioritizing assigned work. Preparing clear, accurate and concise reports, correspondence, and other written materials. Maintaining confidentiality. Establishing and maintaining effective working relationships with those contacted in the course of work and with professional colleagues in other jurisdictions. Communicating tactfully, sensitively, and effectively with employees and employee representatives. Using initiative and making sound and independent judgments within established goals and objectives • Ability to Plan, organize and direct public works activities, programs, and service activities.
Read and understand blueprints, plans and specifications. Organize and maintain accurate records and files. Devise and operate effective internal control procedures. Assist in the development of complex operating and capital improvement budgets. Organize, assign, direct, review and evaluate the work of assigned staff. Assess and evaluate situations and make firm recommendations. Make rapid and sound independent judgments within established guidelines. Communicate clearly and concisely in oral and written English.
Effectively represent the City in meetings with representatives of public and private organizations and the public. Operate a personal computer and related programs. o Licenses and Certificates –Possession of a valid California driver's license by time of appointment. Registration as a Professional Engineer in the State of California within 6
months of hiring. Registration as a Licensed Traffic Engineer in the State of California is desirable.
• Physical Abilities and Work Environment – Sit for lengthy periods of time in indoor office environment. Be available to visit a variety of work and project sites, requiring physical agility and the ability to climb stairs and ladders. Drive an automobile, walk over uneven ground. Operate keyboard equipment. Effectively deal with stressful situations.
• Other – Must complete an annual Statement of Economic Interest. Bilingual fluency in English and Spanish is desirable.
EDUCATION AND EXPERIENCE:
Any combination of experience and education that would be likely to provide the required knowledge, skills, and abilities could be qualifying, as determined by the City. A typical way to obtain the knowledge, skills, and abilities is:
• Experience – Five years of increasingly responsible experience in a major public works maintenance setting that included program planning, development, and administration, and at least two years of supervisory experience is required. Administrative experience in municipal government is preferred. • Education - Possession of a bachelor’s degree from an accredited college or university with major course work in construction technology, civil engineering, public administration, business administration or a related field, required. Prefer candidates who hold a master’s degree in any of the related disciplines; however, a year of relevant experience may be considered as an alternative qualification.
COMPENSATION AND BENEFITS:
The City of McFarland offers an excellent benefit package including:
o Comprehensive City paid medical including buy up option, City paid dental, and vision benefits for the employee and Dependents.
o Life insurance $50,000 (Employee Only)
o Retirement: Deferred Compensation 401(k) -The City of McFarland contributes an additional 10%of an employee's pay each pay
period into a 401K plan, at no cost to the employee.
o Supplemental life insurance (Optional)
o Deferred Compensation 457 Plan (Optional)
o Section 125 plan participation
o 12 Days' vacation and 12 Days sick pay accrued annually. o 12 Days Holiday Pay
o 1 Personal Day Pay
o Work Schedule- Monday – Friday 8:00am – 5:00pm
APPLICATION: To apply, please complete and application online at www.mcfarlandcity.org. Resumes will not be accepted in lieu of a City employment application. To be considered for this position, please submit a complete employment application and resume.
EQUAL OPPORTUNITY EMPLOYER: The City of McFarland is an Equal Opportunity Employer. In accordance with the Americans with Disabilities Act of 1990 (ADA), requests for special accommodations during any stage of the examination process should be made in advance to the Human Resources Department.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This employment agreement (“Agreement”) is made on this 22nd day of February by and between the City of McFarland, a Municipal Corporation (“City”), and Yerlys Hernandez. The City and Hernandez are collectively referred to as the “Parties” where appropriate. Once effective, This Agreement shall replace and supersede any prior employment contracts or agreements between the Parties, which are hereby deemed rescinded and of no further effect, except where indicated within This Agreement.
RECITALS:
WHEREAS, the City Council now wishes to engage the services of Hernandez as the City’s Public Works Director; and
WHEREAS, the position of Public Works Director is an “at will” position, not subject to the City’s personnel rules; and
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth hereinafter, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation. The Parties incorporate the foregoing recitals as if fully set forth herein verbatim.
2. Hire. City acknowledges that it will hire Hernandez as its Public Works Director as of February 26th, 2024 (“Effective Date”). Hernandez and the City agree to the terms and conditions of This Agreement. Hernandez shall remain in the exclusive hire of City during the term of This Agreement and shall neither accept other employment nor become employed by any other employer until the end of the Term or earlier termination of This Agreement.
3. “At-Will” Employment. Hernandez’s employment with City is at the sole will, discretion, and pleasure of the City. The City Manager may fix any such additional terms and conditions of employment, as they may determine from time to time, relating to Hernandez’s performance, provided such terms and conditions are not inconsistent with or in conflict with the provisions of This Agreement, the City Municipal Code, or any other law.
The terms of the City’s personnel rules, policies, procedures, ordinances, or resolutions (collectively “Personnel Policies”) shall not apply to Hernandez unless made expressly applicable, except that all policies and regulations related to the prevention of harassment, discrimination and retaliation shall apply to Hernandez.
This Agreement is not intended to, or does it confer any right to any property interest in continued employment, or any due process property right to a hearing before or after a
EMPLOYMENT AGREEMENT
decision by the City Manager to terminate Hernandez’s employment. Subject to State and Federal law, nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of the City to terminate the services of Hernandez.
4. Duties.
a. Public Works Director. Employee accepts employment with the City as its Public Works Director and agrees to perform all functions, duties, and services as promulgated by City regulations and procedures, the City Manager, and the Public Works Director job description, including, but not limited to the following:
ii. Plan, organize, direct, and supervise all departmental programs. Oversee and evaluate the efficiency and effectiveness of all aspects of the department’s programs in light of the City’s goals, objectives, and priorities.
iii. Directs development of City goals, objectives, and priorities. Based on these City goals, objectives, and priorities, develop those of each department. Participate in the development and administration of departmental budgets. iv. Directs the selection and assignment of department employees and provides for the supervision and training of all such personnel. Assign, direct, evaluate and recommend reward and discipline of employees directly supervised, in accordance with City policy.
Assure that department employees are instructed in job safe practices associated with their typical work environments and in the handling of hazardous materials. Resolve routine personnel issues. Investigate accidents.
v. Maintain adequate monitoring and reporting systems to ensure the adequacy, quality and timeliness of department activities, programs, and compliance with City regulations.
Determine work procedures to improve efficiency and effectiveness of operations. vi. Prepare City Council agenda items for review and approval by the City Manager vii. Attending a variety of management meetings and other city meetings representing the department. Make presentations before various boards and commissions and as requested by the City Manager, before the City Council
viii. Represent the City on various regional, community and professional boards, committees, and commissions, as requested by the City Manager. Make necessary presentations and maintain effective liaison with colleagues and practitioners in similar local, state, and federal activities.
ix. Provide technical staff assistance to the City Manager and other department heads. Draft correspondence in response to public inquiries and monitor department program activities for compliance with regulations and City priorities. Serve the City by taking on special non-public works assignments from the City Manager, staffing special studies, inquiries and fact finding. Prepare staff analysis and reports on various projects and programs.
Present analysis in both oral and written form to the City Manager and Council x. Resolve the department’s most difficult, complex, and sensitive customer service issues as necessary or directed and maintain related records. Keep the City manager informed
EMPLOYMENT AGREEMENT
of problems, issues, and concerns. Recommend changes in programs and policies to the City Manager
xi. Research, identify and develop suggested changes to the department programs and prepare proposed supporting budgets during the City’s annual budgetary process. Direct the development and presentation of the Public Works budgets. xii. Estimate department revenues and expenses, including any revenue and expense associated with grants and contracts of the department. Administer budgets for each of the departmental divisions.
xiii. Direct the planning, development, and implementation of public works projects.
Approve plans for public works projects. Review contractor bids and recommend contract award.
xiv. Enter discussions with outside entities concerning the establishment of contractual relationships with the City concerning those matters under department cognizance.
Monitor these and other City contracts that relate to and are within the scope of department responsibilities.
xv. Responsible for authorizing the purchase of departmental materials and equipment within the established dollar limits and the department’s budget. Prepare staff analysis and reports on various projects and programs. Present analysis in both oral and written form through Council and other public presentations, as requested by the City Manager xvi. Plan, organize, direct, and coordinate all the activities of the Public Works Department.
Functional activities include street and traffic signing maintenance and repair, vehicular and equipment maintenance and repair, electrical and electronic maintenance and repair, solid waste collection and disposal, wastewater collection and treatment, and water production, treatment, code enforcement, civil engineering and distribution programs and services.
xvii. Plan for facility expansion, storage facilities, and equipment purchases. Assure safe storage of volatile materials that meet State OSHA requirements and regulations. Prepare specifications for projects and equipment. Implement Federal and State mandates. xviii. Prepare or supervise the timely preparation of mandatory annual reports to the Federal, State, and other agencies. Prepare additional periodic reports for the City Manager and City Council.
5. Term. Except as hereinafter described, the term of this Agreement shall be for one (1) year commencing on the Effective Date. The term of this contract shall automatically renew for an additional one (1) year on the effective date of each subsequent year, unless mutually agreed by both parties to renegotiate the terms of this contract. The termination of this contract may be accomplished pursuant to the provisions of Section 6 of This Agreement.
6. Termination. Hernandez’s “at-will” employment as Public Works Director may be terminated as follows:
EMPLOYMENT AGREEMENT
a. Resignation. If Hernandez elects to resign at any time during the term of this Agreement, he may do so upon giving City thirty (30) days' written notice.
Termination pursuant to such action shall occur thirty (30) calendar days after service of said notice, or on such other date as may be agreed to by the Parties. b. Retirement. If Hernandez elects to retire, he shall inform City, in writing, at least thirty (30) days prior to the effective date of such retirement. City shall cooperate fully with Employee to provide all information in a timely manner. c. Termination “Without Cause.” City reserves the right to terminate this Agreement and Hernandez's employment as Public Works Director at any time, “without cause” or advance notice.
d. Termination “With Cause.” The City reserves the right to terminate this Agreement and Hernandez’s employment at any time, “with cause.” “Cause” shall include, but not be limited to:
i. Willful misconduct or gross negligence;
ii. Theft, or attempted theft, financial mismanagement, material dishonesty, willful or persistent breach of duties, engaging in conduct tending to bring embarrassment or disrepute to the City, unauthorized or excessive absences;
iii. A formal investigation commissioned by the City Council and conducted by a third-party investigator hired by the City Council in which the City Council has determined that the Employee has engaged in unlawful discrimination or harassment of Employees or any third party while on City Premises or on City time. City is not required to wait until Employee has exhausted any appeal rights prior to terminating This Agreement “for cause;”
iv. Conviction of any felony, or for any misdemeanor involving moral turpitude, corruption, or dishonesty. “Conviction” shall include any guilty plea, plea of nolo contendere, or any other disposition other than a dismissal of charges or acquittal. City is not required to wait until Employee has exhausted any appeal rights prior to terminating This Agreement “for cause;”
v. Hernandez’s death; or
vi. If Hernandez is determined by a court of competent jurisdiction of the State of California’s Fair Political Practices Commission to have knowingly and unlawfully participated in a governmental decision I which he had a conflict of interest as defined in Government Code Section 87100 et seq. or Government Code Section 1090 et seq.;
vii. Hernandez’s permanent disability if such disability precludes Hernandez from performing His essential job duties for more than six (6) cumulative months after attempts at a reasonable accommodation pursuant to the Americans with Disabilities Act and/or California’s Fair Employment & Housing Act.
EMPLOYMENT AGREEMENT
7. Salary and Benefits. Hernandez’s salary and other benefits for all work or services called for under This Agreement shall be as follows:
A. Salary. Commencing on the Effective Date, Hernandez’s annual salary shall be ($130,000), which shall be paid in bi-weekly pay periods. Any salary increases shall be implemented by written amendment to This Agreement and upon approval by the City Council.
B. Vacation. Hernandez shall receive eighty (80) hours of vacation leave, commencing on the effective date. At the end of each year of Hernandez’s employment, any unused vacation hours shall be cashed out prior to his accrual of an additional eighty (80) hours.
C. Sick Leave. Hernandez shall accrue eight (8) hours of sick leave per month of employment. The balance of sick leave shall not exceed any maximum accrual amounts set forth in the City's Employee Handbook. Unused sick leave will not be paid out upon termination or expiration of This Agreement.
D. Administrative Leave. Hernandez shall receive forty (40) hours of administrative leave per year, commencing on the first day of each year of his employment.
Administrative leave will not carry over calendar years. At the end of each year of Hernandez’s employment, any unused hours shall be cashed out prior to his accrual of an additional forty (40) hours.
E. Holiday and Other Leaves. Hernandez shall receive the same leave, holidays, and other time off as provided to other employees at the City.
F. Health Insurance Benefits. City shall provide health insurance coverage for Hernandez and his family consistent with the health insurance benefits provided to City employees. Hernandez may waive this health insurance coverage so long as he has proof of other group coverage in accordance with the Affordable Care Act, (i.e. is not purchasing coverage from the exchange).
G. Term Life Insurance. The City shall pay the premiums for a group life insurance policy consistent with the City employee handbook. Hernandez shall name the beneficiary of the life insurance policy, provided said beneficiary has and maintains an insurable interest in Hernandez.
H. Vehicle. Hernandez shall be required to adhere to all City policies and procedures regarding the use of City vehicles.
I. Cell Phone. City shall provide Hernandez with a cell phone purchased by City to be used by Hernandez exclusively for performance of his duties under This Agreement and City shall pay the monthly charges for the cell phone data usage. Alternatively, at Hernandez’s election, City will pay Hernandez an allowance of $50.00 per month for use toward his personal cell phone and data plan. Hernandez acknowledges that
EMPLOYMENT AGREEMENT
use of the City provided cell phone, or his personal cell phone, for City business may be subject to such usage to disclosure under the California Public Records Act.
J. Retirement. City represents and Hernandez acknowledges that City is not a CalPERS agency for retirement purposes. The City shall contribute the equivalent of ten percent (10%) of Hernandez’s salary annually to Hernandez’s 401(k) or deferred compensation retirement account. Hernandez shall choose whether he wants the contribution made to his 401(k) or deferred compensation account, or a combination of both.
K. Expenses. City shall reimburse Hernandez for all reasonable out-of-pocket expenses incurred while performing the duties described in This Agreement, which may include travel, meals, lodging expenses, and parking fees. Hernandez shall submit a receipt and a description of the expenses to the City’s Finance Director within thirty (30) days of the date each expense is incurred as a condition of obtaining reimbursement.
8. Bonding and Indemnification. City shall bear the full costs of any fidelity or other bond required of Hernandez under any law or ordinance. City shall defend, save harmless and indemnify Hernandez from any and all demands, claims, suits, actions, or other legal proceedings (“Claims”) brought against him in his individual capacity or in his official capacity as Public Works Director provided the Claims arise while Hernandez is acting within the course and scope of his employment and provided he did not act or fail to act because of actual fraud, corruption or malice. The provision shall not extend to claims brought by City itself or where indemnity is otherwise prohibited by law.
9. Evaluation. The City Manager shall evaluate Hernandez after the first six (6) months of the Term of This Agreement. The City Manager shall have the right to establish the format and the forms to be used.
10. Notices. Notices pursuant to This Agreement shall be deemed to be given when personally delivered to the party to whom directed or when deposited in the United States Mail, postage prepaid or by electronic mail (Email) or, if notice is given to City, if sent by confirmed facsimile, addressed as follows:
City Address
City Manager, City of McFarland Yerlys Hernandez
401 West Kern Avenue
McFarland, California 93250 Bakersfield, CA 93307
Email: [email protected] Email:
Either party may change his or its address by providing written notice to the other party in the manner described herein.
11. General Provisions.
EMPLOYMENT AGREEMENT
A. Entire Agreement. This Agreement constitutes the complete understanding between the Parties, is fully integrated, and supersedes any and all prior agreements – including the Parties’ Consulting Agreement – promises, representations, or inducements, no matter their form, concerning the subject matter of This Agreement.
No subsequent agreements, promises, representations, or inducements will be binding unless recorded in a written document, which specifically references This Agreement and is signed by the Parties or their authorized representatives. The Parties acknowledge that This Agreement may be used as evidence in any subsequent proceeding in which either Party alleges a breach of This Agreement or seeks to enforce its terms, provisions, obligations, or as compelled by law.
B. Captions. The headings used in This Agreement are inserted for reference purposes only and shall not be deemed to limit or affect in any way the meaning or interpretation of any of the terms or provisions of This Agreement.
C. Severability. If any provision contained in This Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of This Agreement shall be deemed severable and shall not be affected thereby and same shall remain in full force and effect.
D. Amendment. This Agreement may only be amended by a writing executed by all parties.
E. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action or motion to enforce the terms or conditions of This Agreement shall be brought only in the Superior Court of California for the County of Kern.
F. Waiver. Waiver by any party of any breach of This Agreement by the other party, whether such waiver be direct or implied, shall not be construed as a continuing waiver or consent to any subsequent breach of This Agreement on the part of the other party.
G. Further Assurances. Each party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of This Agreement and the intent of the parties to This Agreement.
H. Assignment. Neither This Agreement, nor any interest in it, may be assigned or transferred by any party without the prior written consent of all the parties. Any such assignment will be subject to such terms and conditions as City may choose to impose.
I. Binding Effect. The rights and obligations of This Agreement shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors and assigns, and whenever the context so requires, the masculine gender and includes the feminine and
EMPLOYMENT AGREEMENT
neuter, and the singular number includes the plural. This Agreement may be executed in any number of counterparts, each of which shall be considered as an original and be effective as such.
J. Merger And Modification. This contract sets forth the entire Agreement between the parties and supersedes all other oral or written representations. This contract may be modified only in writing, approved by the City Council and signed by all the parties.
K. Attorneys’ Fees. If either party commences any action or proceeding relating to This Agreement or the enforcement of any provision of This Agreement against the other party, the prevailing party, in such action or proceeding, shall be entitled to recover reasonable attorneys’ fees, costs, and all other litigation costs.
L. Execution. This Agreement is effective February 26th, 2024. It is the product of negotiation, and all parties are equally responsible for authorship of This Agreement.
Section 1654 of the California Civil Code shall not apply to the interpretation of This Agreement.
M. Non-Interest. Except for Hernandez, no officer or employee of City shall hold any interest in This Agreement (California Government Code section 1090).
N. Counterparts. This Agreement may be executed in counterparts and the respective signature pages for each party may thereafter be attached to the body of This Agreement to constitute one integrated Agreement which is as fully effective and binding as if the entire document had been signed at one time.
O. Acknowledgement of Statutes That May Affect Employment Relationship. City and Employee acknowledge that, in addition to the statutes previously referenced in This Agreement, the following statutes shall govern This employment relationship under the circumstances described in the statutes:
a. Government Code section 53243 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Hernandez, that provides paid leave salary offered by the local agency to the officer or Employee pending an investigation shall require that any salary provided for that purpose be fully reimbursed if the officer or Employee is convicted of a crime involving an abuse of His office or position.
b. Government Code section 53243.1 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Employee that provides funds for the legal criminal defense of an officer or Employee shall require that any funds provided for that purpose be fully reimbursed to the local agency if the officer or Employee is convicted of a crime involving an abuse of His office or position.
EMPLOYMENT AGREEMENT
c. Government Code section 53243.3 states that on or after January 1, 2012, if a local agency, such as the City, provides, in the absence of a contractual obligation, for any of the payments described in the corresponding article of the Government Code, then the Employee or officer, such as Employee, receiving any payments provided for those purposes shall fully reimburse the local agency that provided those payments in the event that the Employee or officer is convicted of a crime involving the abuse of his office or position.
d. Government Code sections 87100 et seq., section 1090 and section 1126, and all other similar statutory and administrative rules, prohibit conflicts of interest.
During the term of This Agreement, Hernandez shall comply with all those requirements of law, and 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 Employee's duties under This Agreement.
Hernandez represents that he has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to him, including that Employee agrees that any cash settlement or severance related to a termination that Employee may receive from City shall be fully reimbursed to the local agency if Employee is convicted of a crime involving an abuse of Employee's office or position.
P. Independent Legal Advice. City and Hernandez 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 or had the opportunity to do so and City and Hernandez further represent and warrant that each has carefully reviewed This entire Agreement and that each 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. [Signature Page Follows]
EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the Parties have executed This Agreement to be effective on the day and year first above written:
Dated: CITY OF MCFARLAND
By: _________________________
Saul Ayon
Title: Mayor
Dated: EMPLOYEE
By: _________________________
Hernandez
APPROVED AS TO FORM:
By:
Nathan M. Hodges, Esq.
Hodges Law Group
City Attorney
Attachments:
Exhibit A: City of McFarland Position Description – Public Works Director
City of McFarland
City Council Meeting
STAFF REPORT
Agenda Item No. 14.
Section: ADMINISTRATIVE
AGENDA
Meeting Date: February 22,
2024
TO: Honorable Mayor and Council Members
FROM: Kenny Williams, City Manager
SUBJECT: APPROVAL OF RESOLUTION 2024-21 A RESOLUTION OF THE CITY OF
MCFARLAND APPROVING AN AGREEMENT BETWEEN THE CITY AND
DIEGO VIRAMONTES FOR THE CITY MANAGER /FINANCE DIRECTOR.
SUMMARY:
Recently, the city has been recruiting for the City Manager position by advertising the position externally and internally. The city has received multiple applications for the position and after careful review of the applications, the city conducted interviews with three of the candidates.
One candidate was selected, Diego Viramontes, and the council would now like to proceed with the attached Employment Agreement to hire Viramontes as the McFarland City Manager/ Finance Director effective March 1, 2024.
Viramontes is currently the City’s Finance Director, and this proposal would leave Viramontes as the Finance Director and add the additional duties of the City Manager, making the position a dual duty position consisting of both the City Manager and the Finance Director.
City staff negotiated with Viramontes to determine the salary, benefits, and other terms of his employment and, through the city’s attorney, staff developed the attached employment agreement. During a closed session hearing on February 15, 2024, the council examined the agreement and approved the agreement in its current form.
The Employment Agreement set the hire date of March 1, 2024, with a term of three years, which will automatically renew for an additional year upon mutual agreement between the city and Viramontes.
The negotiated annual salary for both positions is $185,000 with a 3% percent Cost of Living Adjustment (COLA) annually. Any other salary increase would only be implemented by a written amendment to the original agreement and approved by the City Council.
The remainder of the employment agreement is consistent with other existing employment agreements with a few exceptions as listed below:
Because Viramontes is currently employed by the city, his leave balances of vacation and administrative leave will be cashed out. The new balances will start over with a balance of eighty hours of vacation and forty hours of administrative leave.
As per the terms of the agreement, medical insurance will be provided for Viramontes and his
family with 100 percent of the premium for any available plan being paid by the city.
In the event of a termination without cause, Viramontes would be paid for all unused paid leave and receive three months of COBRA insurance and three months of his salary at the rate of pay at the time of his termination. Viramontes would be required to sign the attached agreement of separation, severance and general release before receiving these severance benefits.
Viramontes will not be provided with a vehicle or any compensation in lieu of a vehicle.
FINANCIAL IMPACT:
Because Viramontes will be holding both the Finance Director and the City Manager positions, there will be an estimated cost savings to the city in the amount of $123,000.
RECOMMENDATION:
Staff recommends APPROVAL OF RESOLUTION 2024-21 A RESOLUTION OF THE CITY
OF MCFARLAND APPROVING AN AGREEMENT BETWEEN THE CITY AND DIEGO VIRAMONTES FOR THE CITY MANAGER /FINANCE DIRECTOR.
ATTACHMENTS:
1. City Manager- JD
2. Finance Director-JD
3. AGREEMENT OF SEPARATION
4. EMPLOYMENT AGREEMENT- City Manager. Final 3
RESOLUTION NO. 2024-21
WHEREAS, The city council desires to employee Diego Viramontes as the City Manager/ Finance Director; and
WHEREAS, The city council believes the terms of the employee agreement are reasonable and provide a fair and equitable salary for the position of City Manager/Finance Director;and WHEREAS, The city council approves the annual salary of $185,000 plus benefits for the position of City Manager/ Finance Director as defined in the employment agreement; and WHEREAS, The city council believes the combining of the City Manager and Finance Director positions would be a cost benefit to the city; and
WHEREAS, The city council approves the Employment Agreement between the city and Diego Viramontes for the position of City Manager/ Finance Director
1. The foregoing recitals are true and correct and incorporated herein as if set forth in full; and
2. The City Council hereby ratifies and approves the Employment Agreement with Diego Viramontes as detailed in the agreement, and
3. The City Council acknowledges that combining the City Manager and Finance Director positions will provide a cost savings for the city; and
5. The City Clerk shall certify the passage and adoption of this resolution;and
6. This resolution will become effective immediately.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of McFarland on February 22, 2024 by the following vote:
Aye Nae Abstain Absent
Saul Ayon
Ricardo Cano
Amador Ayon
Anita Gonzalez
María T. Pérez
CITY OF MCFARLAND
____________________________
Saul Ayon, Mayor
ATTEST:
_____________________________
Francisca Alvarado, City Clerk
I, _________________________, City Clerk of the City of McFarland, California, DO HEREBY CERTIFY that the foregoing resolution is a true and accurate copy of the Resolution passed and adopted by the City Council of the City of McFarland on the date and by the vote indicated herein. _____________________________
Francisca Alvarado, City Clerk
CITY OF MCFARLAND
CITY MANAGER
Salary: DOE (EXEMPT)
Opening Date: January 5, 2024
Closing Date: January 19, 2024
POSITION SUMMARY:
The City Manager serves as the chief administrative officer of the city, responsible for overseeing the daily operations of all city departments and executing the policies and objectives set forth by the City Council. The City Manager ensures efficient and effective municipal services, promotes economic development, and fosters community engagement.
JOB DUTIES:
1. Assist the City Council in the development of City goals, objectives, and priorities. Oversee special programs as assigned by the City Council.
2. Select, appoint, supervise, train, evaluate, discipline, and reward City department heads and staff members of the Office of the City Manager. Direct, evaluate, reward, and discipline those employees. Assure that department heads provide job safe practices and instruction related to the typical work environments of their departments.
3. Provide visionary leadership in managing city affairs, including strategic planning, budgeting, and policy development.
4. Interpret City Policy for City employees and the general public. Direct the preparation of the City’s annual budget and review and adjust department budget estimates before final submittal to the City Council
5. Engage with residents, businesses, and community groups to understand and address local needs, enhancing community satisfaction.
6. Serve as the primary liaison to the City Council, providing regular updates and ensuring council decisions are effectively implemented.
7. Attend all meetings of the City Council, unless excused therefrom.
8. May attend any, and all meetings of City commissions, boards, or committees created by the City Council, upon his/her own volition, and will attend such meetings upon direction of the City Council.
9. Represent the City on various regional, community, and professional boards, committees, and commissions, and make necessary presentations. Maintain effective liaison with colleagues and practitioners in similar local, state, and federal activities.
10. Conduct legislative advocacy and analysis on behalf of the city and ensure the City Council is informed of the City’s position.
11. Commit the City to courses of action within established general policy. Pursue economic development on behalf of the City and serve as Executive Director of the City’s Redevelopment Agency and Public Finance Authority.
12. Negotiate with those collective bargaining groups representing City employees and with outside entities concerning the establishment of contractual relationships with the City.
13. Prepare staff analysis and reports on various projects and programs. Present analysis in both oral and written form through Council and other public presentations.
14. Conduct complex administrative and operational studies, analyze findings, and prepare recommendations regarding proposals for programs, services, equipment, and personnel.
15. Performs related duties as assigned.
16. Coordinate emergency response strategies and ensure preparedness for city-wide emergencies.
MINIMUM QUALIFICATIONS:
Knowledge of: Providing skilled analytical and management staff support to the City Council.
Conducting complex analytical and operational studies, evaluating alternatives, and making effective recommendations. Reading, interpreting, and applying complex procedures, policies, rules, and regulations. Negotiating and representing City interests. Organizing and prioritizing assigned work.
Preparing clear, accurate, and concise reports, correspondence, and other written materials.
Maintaining confidentiality. Establishing and maintaining effective working relationships with those contacted in the course of work and with professional colleagues in other jurisdictions. Communicating tactfully, sensitively, and effectively with employees and employee representatives. Using initiative and making sound and independent judgments within established goals and objectives.
Ability to: Develop, coordinate, and administer complex operating and capital improvement budgets.
Analyze, interpret, and apply complex laws, regulations, policies, and procedures. Organize, assign, direct, review, and evaluate the work of assigned staff. Communicate clearly and concisely in oral and written English. Effectively represent the city in meetings with the public, representatives of public and private organizations. Operate a personal computer and related spreadsheet and word processing programs, as well as other Windows-based applications.
Licensing and Certificates: Possess an appropriate California Driver's License with a driving record acceptable to the City.
EDUCATION AND EXPERIENCE: Bachelor’s degree in public administration, business administration, or a related field; master’s degree preferred.
- Minimum of 5 years of experience in municipal government, with a proven track record in a leadership role.
- Strong understanding of municipal operations, budgeting, and strategic planning.
- Excellent communication, negotiation, and interpersonal skills. - Ability to engage with diverse stakeholders and foster community partnerships.
COMPENSATION AND BENEFITS:
The City of McFarland offers an excellent benefits package including:
• Comprehensive City paid medical including buy-up option, City paid dental, and vision benefits for the employee and Dependents.
• Life insurance $50,000 (Employee Only)
• Retirement: Deferred Compensation 401(k) -The City of McFarland contributes an additional 10% of an employee's pay each pay period into a 401K plan, at no cost to the employee. • Supplemental life insurance (Optional)
• Deferred Compensation 457 Plan (Optional)
• Section 125 plan participation
• 12 Days' vacation and 12 Days of sick pay accrued annually. • 12 Days Holiday Pay
• 1 Personal Day Pay
• Monday through Friday 8 am to 5 pm Schedule
APPLICATION: To apply, please complete an application online at www.mcfarlandcity.org. Resumes will not be accepted in lieu of a City employment application. To be considered for this position, please submit a complete employment application and resume.
EQUAL OPPORTUNITY EMPLOYER: The City of McFarland is an Equal Opportunity Employer. In accordance with the Americans with Disabilities Act of 1990 (ADA), requests for special accommodations during any stage of the examination process should be made in advance to the Human Resources Department.
City of McFarland
FINANCE DIRECTOR
SALARY: DOE
CAREER INFORMATION:
This is a continuous recruitment and may close at anytime without notice, Please ensure all applicable supplemental materials are attached to the application QUALIFICATIONS:
Minimum Qualifications:
Bachelor’s Degree in Accounting, Finance or Business Administration or a closely related field and at least 1 year of broad and extensive experience involving administration and management of government finances and municipal projects and programs, OR any combination of education and/or experience which provides the knowledge, skills and abilities required.
Preferred Qualifications:
Master’s degree in accounting, Finance or Business Administration or a closely related field. 3 years of broad and extensive experience involving administration and management of government finances and municipal projects and programs.
Physical Requirements:
The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. This classification involves work that requires:
• Vision sufficient to read technical, legal, and regulatory documents, periodicals, computer screens, computer print outs, business correspondence, audio visual materials, and other documents encountered in the course of work.
• Hearing sufficient to hear conversational levels in person and over the phone or radio. • Mobility sufficient to safely work in office settings and similar environments. • Dexterity sufficient to safely operate office equipment including computers. • Strength sufficient to lift, carry and move ten (10) lbs. • Endurance sufficient to sit, walk and stand for extended periods, and maintain efficiency throughout the entire work shift and during extended work hours.
JOB DESCRIPTION:
Under direction of the City Manager, this upper-level position serves as a member of the City’s management team and is the Department Head for the Finance Department. This position plans, directs, reviews, and supervises department staff to coordinate their efforts toward achievement of their departmental objectives and the objectives of the City government as a whole. The department activities and operations encompass a wide range of internal and external support services. Persons in this position provide highly responsible and complex administrative support, information and recommendations to the City, City Council, staff, and externally on behalf of the City This position understands public trust and models the highest standards of personal and professional integrity expected of those working in public service.
DUTIES: Essential functions and duties may be modified at any time at management’s discretion.
Typical duties may include, but are not limited to the following:
• Implements goals, objectives, priorities, policies, and procedures of the City of McFarland and the
Finance Department.
• Represents the City in interactions with the public, elected officials, coworkers, regulatory agencies, investment bankers, financial advisors, and business, professionals on a regular basis. • Coordinates, supervises, evaluates, and ensures efficiency in the responsibilities, activities, and operations of the Finance Department.
• Supervises and evaluates department personnel, also ensuring that sufficient training and development opportunities are provided.
• Establishes and monitors management and control of the City’s financial operating practices. • Evaluates and implements internal and external audit recommendations and provides feedback to management on results.
• Structures, plans, and coordinates specific financial projects, and conducts, directs and participates in major projects to interpret and recommend financial policy for the City. • Utilizes financial forecasts and analysis to identify future financial challenges and opportunities and identifies strategies to secure financial sustainability for the City. • Develops, implements, and administers purchasing policies and procedures for the City, ensuring financial oversight of all City spending and appropriate accounting principles. • Prepares and/or communicates clear, accurate and comprehensive programs, policies, reports, and recommendations to elected officials, staff, outside agencies and the community. • Conducts organizational and administrative studies and directs complex forecasting and cost/benefit analysis and recommendations on a wide range of policies, programs, and issues. • Engages in, performs, and supervises strategic planning to ensure the City’s capacity to support organizational stability, community growth, and fiscal responsibility. • Participates in City management staff meetings and may serve on special committees or direct the conduct of projects having a general City-wide impact. • Initiates, maintains, and oversees a variety of files, records, and databases (electronic and hard copy) and compiles operational information and data for reports and record keeping. • Provides filings, justifications and tracking as needed with grant obligations. • Maintains compliance required by the State of California and the federal government. • Translates policy statements into working procedures. • Performs other duties as needed or assigned.
KNOWLEDGE, SKILLS AND ABILITES:
Principles and practices of general municipal administration and organization. • Professional standards including governmental accounting and financial reporting standards, generally accepted accounting principles, and generally accepted auditing standards, including applicable federal, state, and local laws, ordinances, statutes, rules, regulations, policies, and procedures.
• Municipal finance administration, cost accounting principles and practices, investment fund management, utility accounting, budgeting, and debt management. • Principles and practices of public human resource administration, including applicable federal, state, and local laws, ordinances, statutes, rules, regulations, policies, and procedures. • Principles of personnel management, supervision, training, and performance evaluation. • Modern office procedures, methods and equipment including computers and applicable software applications.
Skills and Ability to:
• Manage, supervise, and direct programs and activities of a multifaceted department. • Develop and administer departmental goals, objectives, and procedures. • Analyze and assess programs, policies and operational needs including initiating appropriate adjustments.
• Interpret and apply applicable federal, state, and local policies, laws, and regulations. • Identify and respond to sensitive and organizational issues, concerns and needs. • Plan, organize, direct, and coordinate the work of subordinates. • Delegate authority and responsibility.
• Select, supervise, train, and evaluate staff.
• Analyze problems, identify alternate solutions, project consequences of proposed actions, and implement recommendations in support of goals.
• Prepare and administer large and complex budgets.
• Prepare clear, accurate and concise reports and presentations. • Effectively communicate whether orally or in writing. • Develop and maintain a courteous, helpful, and professional image in dealing with public, elected officials, business professionals and coworkers.
• Establish relationships and work cooperatively with City officials, employees, and the general public.
• Plan, manage and direct multiple, diverse projects simultaneously. • Comprehend, understand, and make use of new or advanced technologies. • Exercise initiative, apply sound judgment and produce reasonable recommendations. • Maintain confidentiality when working with sensitive information and issues. • Demonstrate flexibility in the face of change.
BACKGROUND:(Qualifying only)
The background evaluation will assess overall suitability for the employment the finance Director.
Candidates must be found satisfactory in all aspects of the background evaluation.
COMPENSATION & BENEFITS:
The City of McFarland offers an excellent benefit package including:
• Comprehensive City paid medical, dental, and vision benefits for the employee and Dependents.
• Life insurance equal to 1-year base salary with a minimum of $50,000
• Retirement: Deferred Compensation 401(k)-The City of McFarland contributes an additional 10% of an employee's pay each pay period into a 401K plan, at no cost to the employee. • Supplemental life insurance (Optional)
• Deferred Compensation 457 Plan (Optional)
• Section 125 plan participation
• 12 days' vacation and 12 days sick pay accrued annually. • 12 Days Holiday Pay
APPLICATION: To apply, please complete and application online at www.mcfarlandcity.org. Resumes will not be accepted in lieu of a City employment application. To be considered for this position, please submit a complete employment application and resume.
EQUAL OPPORTUNITY EMPLOYER: The City of McFarland is an Equal Opportunity Employer. In accordance with the Americans with Disabilities Act of 1990 (ADA), requests for special accommodations during any stage of the examination process should be made in advance to the Human Resources Department.
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
1. PARTIES
This Agreement of Separation, Severance, and General Release (hereinafter referred to as the “Agreement”) is entered into effective this ___ day of ___________, _____ by and between the City of McFarland, a municipal corporation (“'City” herein), and Diego Viramontes (“Employee” herein).
2. RECITALS
2.1 Employee was hired by the City as an at-will City Manager and Finance Director effective on or about _______________, serving at the pleasure of the of the City Council of the City pursuant to a written Employment Agreement, a copy of which is attached hereto as Exhibit “A” (“Employment Agreement”). Employee is currently ___ years old.
2.2 On or about __________________, Employee was terminated from both positions with the City without cause. The City and Employee now desire that Employee to enter into this Agreement whereby Employee receives severance compensation in exchange for executing a general release and waiver of any and all claims that Employee may have against the City, including but not limited to, its elected and non-elected officials, Employees, attorneys, and agents. Accordingly, the parties hereto intend by this Agreement to mutually conclude any and all employment relationships between the City and Employee by means of Employee's separation as City Manager and Finance Director as of the ____ day of _________ 20__. This Agreement sets forth the full and complete terms and conditions concluding Employee's employment relationship with the City and any obligations related thereto, including any provided under the Employment Agreement.
2.3 In accordance with this Agreement and with applicable state and federal laws, Employee acknowledges that Employee has been advised of Employee’s post-employment rights, including but not limited to, Employee’s rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), and the Health Insurance Portability and Accountability Act of 1996 (" HIPAA"), and of his rights under the Age Discrimination in Employment Act, and the Older Workers Benefit Protection Act.
3. CONSIDERATION
3.1 Employee shall receive payment to him at the time of his voluntary separation all earned salary, accrued fringe benefits as detailed in the Employment Agreement, and/or all other wage compensation/benefits owed to Employee upon separation of employment, as required by state, federal or municipal law or any other Agreement with the City.
3.2 In exchange for the waivers and releases set forth herein, the City shall cause to be paid to Employee an additional compensatory payment as severance pay by means of a lump sum payment of ________________ ($__________), as set forth in in the form of a check made
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE payable to Employee to be mailed to Employee at Employee’s home address via certified mail return receipt requested within thirty (30) business days after the Effective Date (as defined below) of this Agreement. The lump sum payment shall be subject to applicable state and federal withholdings as determined appropriate by the City. Additionally, the City shall cause to be paid to Employee an amount equal to the Premium Payments for one (1) year of health, dental and vision insurance, at the same level Employee was provided during his employment.
3.3 In exchange for the severance payment provided for herein, Employee, and on behalf of Employee’s Spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges the City, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and such of them (hereinafter referred to as “the City Parties”), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, Agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which Employee now has or may acquire in the future, or which Employee ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the beginning of time up to and including the effective date of this Agreement (hereinafter referred to collectively as “Claims”), without regard to whether such Claims arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. Employee expressly acknowledges that the Claims forever barred by this Agreement specifically include, but are not limited to, claims based upon any alleged breach of the contract or any other Agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIP AA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act or any claim or cause of action including but not limited · to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code§§ 12, 900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human rights, civil rights, or employment discrimination or Employee rights statute, rule, or regulation. Nothing herein shall be interpreted as a release or waiver of any workers’ compensation claims or in any way prohibit or prevent Employee from participating in any claims or administrative action brought by a state or federal agency.
Furthern1ore, nothing herein shall be interpreted as a release or waiver of the City’s statutory obligations relative to providing defense and indemnification of public
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE Employees, if any, including but not limited to Government Code Sections 825-825.6 and Sections 995-996.6.
4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the “ADEA”') makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual’s employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the “OWBPA,” 29 U.S.C. § 626, et. seq., Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this Agreement, Employee acknowledges that Employee knowingly and voluntarily, for just compensation in addition to anything of value to which Employee was already entitled, waives, and releases any rights he may have under the ADEA and/or OWBPA. Employee further acknowledges that Employee has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that:
a) This waiver/release is written in a manner understood by Employee; b) Employee is aware of, and/or has been advised of, Employee’s rights under the ADEA and OWBPA, and of the legal significance of Employee’s waiver of any possible claims Employee currently may have under the ADEA, OWBPA and/or similar age discrimination laws;
c) Employee is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this Agreement and the waiver and release of any rights Employee may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of Employee's own discretion, sign or reject this Agreement at any time before the expiration of the twenty-one (21) days;
d) The waivers and releases set forth in this Agreement shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the Effective Date of this Agreement;
e) Employee has been advised by this writing that Employee should consult with an attorney prior to executing this Agreement;
f) Employee has discussed this waiver and release with, and been advised with respect thereto by, Employee’s counsel of choice or at least had the opportunity to do so, and Employee represents by signing this Agreement that Employee does not need any additional time within which to review and consider this Agreement;
g) Employee has seven (7) days following Employee’s execution of this Agreement to revoke the Agreement;
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to the City pursuant to Paragraph 8.9 herein, and must state, “I hereby revoke my acceptance of our Agreement of Severance and General Release;” and i) This Agreement shall not be effective until all parties have signed the Agreement and ten (10) days have passed since Employee's execution of same (“Effective Date”).
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3, and 4 above, Employee understands that California Civil Code section 1542 reads as follows:
“GENERAL RELEASE--CLAIMS EXTINGUISHED”
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”
Employee hereby waives the protection of California Civil Code section 1542.
6. WAIVER OF ADDITIONAL CLAIMS
Employee hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this Agreement represents and warrants to, and agrees with, each other party as follows:
7.1 Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this Agreement or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this Agreement, that they have read this Agreement; that they have had this Agreement fully explained to them by such counsel or have had such opportunity to do so and that they are fully aware of the contents of this Agreement and of its legal effect.
7.2 No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and neither party relies upon any statement, representation, omission
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE or promise of any other party in executing this Agreement, or in making the settlement provided for herein, except as expressly stated in this Agreement.
7.3 Independent Investigation: Each party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement and all the matters pertaining thereto, as it deems necessary.
7.4 Mistake Waived: In entering into this Agreement, each party assumes the risk of any misrepresentation, concealment, or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever.
7.5 Later Discovery: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that Employee fully, finally, and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against the City or the City Parties. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto.
7.6 Indemnification: Employee agrees to indemnify and hold harmless the City or the City Parties from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this Agreement. Employee understands and agrees that Employee shall be exclusively liable for the payment of all taxes for which Employee is responsible, if any, as a result of Employee's receipt of the consideration referred to in Paragraph 3 of this Agreement. In addition, Employee agrees fully to indemnify and hold the City Parties harmless for payment of tax obligations as may be required by any federal, state, or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this Agreement.
7.7 Future Cooperation: Employee shall execute all such further and additional documents as shall be reasonable, convenient, necessary, or desirable to carry out the provisions of this Agreement.
7.8 Return of Confidential Information and Property: Prior to the separation all City keys, equipment, passwords, computer identification cards or codes, and other equipment or materials or confidential documents provided to or obtained by Employee during the course of Employee’s employment with the City shall be provided by Employee to the Finance Director or designee.
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
7.9 No Pending Claims and/or Actions: Employee represents that Employee has not filed any complaints or charges against the City or the City Parties with any local, state or federal agency or court; that Employee will not do so at any time hereafter for any claim arising up to and including the Effective Date of this Agreement; and that if any such agency or court assumes jurisdiction of any such complaint or charge against the City or the City Parties on behalf of Employee, whenever or where ever filed, Employee will request such agency or court to withdraw from the matter forthwith. Nothing herein shall be interpreted as a release or waiver of any workers’ compensation claims or in any way prohibit or prevent Employee from participating in any claims or administrative action brought by a state or federal agency.
7.10 Ownership of Claims: Employee represents and warrants as a material term of this Agreement that Employee has not heretofore assigned, transferred, released, or granted, or purported to assign, transfer, release, or grant, any of the Claims disposed of by this Agreement. In executing this Agreement, Employee further warrants and represents that none of the Claims released by Employee thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity.
7.11 Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which that party may be entitled.
7.12 Authority: Each party represents to the other that it has the right to enter into this Agreement, and that it is not violating the terms or conditions of any other Agreement to which they are a party or by which they are bound by entering into this Agreement. The parties represent that they will obtain all necessary approvals to execute this Agreement. It is further represented and agreed that the individuals signing this Agreement on behalf of the respective parties have actual authority to execute this Agreement and, by doing so, bind the party on whose behalf this Agreement has been signed.
7.13 Unemployment: Nothing in this Agreement shall limit Employee’s ability to apply for unemployment benefits.
8. MISCELLANEOUS
8.1 No Admission: Nothing contained herein shall be construed as an admission by the City of any liability of any kind. The City denies any liability in connection with any claim and intends hereby solely to avoid potential claims and/or litigation and buy its peace.
8.2 Governing Law: This Agreement has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California.
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE The Parties agree that the exclusive jurisdiction for any legal proceeding arising out of or relating to this Agreement shall be the Kern County Superior Court and all Parties hereby waive any challenge to personal jurisdiction or venue in that court.
8.3 Full Integration: This Agreement is the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written Agreements and discussions. This Agreement may be amended only by a further Agreement in writing, signed by the parties hereto.
8.4 Continuing Benefit: This Agreement is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest.
8.5 Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the parties agree that same shall not be construed against any party.
8.6 Severability: In the event that any term, covenant, condition, provision, or Agreement contained in this Agreement is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or Agreement shall in no way affect any other term, covenant, condition, provision or Agreement and the remainder of this Agreement shall still be in full force and effect.
8.7 Titles: The titles included in this Agreement are for reference only and are not part of its terms, nor do they in any way modify the terms of this Agreement.
8.8 Counterparts: This Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all parties. Delivery of executed originals of this Agreement, as well as any instrument contemplated in connection with this Agreement, may be affected by facsimile and/or electronic transmission, and in such event, copies of executed originals so delivered may be used in place of, and shall have the same force and effect as, the executed originals.
8.9 Notice: Any and all notices given to any party under this Agreement shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given and/or received on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail.
City: City Of McFarland
City Hall
401 W. Kern Avenue
McFarland, CA 93250
Employee: Diego Viramontes
Address set forth in Employee's Personnel
File.
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, the day and year first-above written.
Dated: “Employee”
By:
DIEGO VIRAMONTES
Dated: City of McFarland
By:
Name:
Title: Mayor
APPROVED AS TO FORM:
For City:
By:
Name:
Title: City Attorney
For Employee (if represented):
By:
Name:
Title:
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This employment agreement (“Agreement”) is made on This ______day of February by and between the City of McFarland, a Municipal Corporation (“City”), and Diego Viramontes (“Viramontes”). The City and Viramontes are collectively referred to as the “Parties” where appropriate. Once effective, This Agreement shall replace and supersede any prior employment contracts or agreements between the Parties, which are hereby deemed rescinded and of no further effect, except where indicated within This Agreement.
RECITALS:
WHEREAS, Viramontes has served as the Finance Director for the city of McFarland since September 12, 2022; and
WHEREAS, Viramontes has demonstrated the knowledge, skills and abilities to serve as City Manager, and possesses the qualifications of a City Manager under the criteria established by the City Council during City Manager recruitment; and
WHEREAS, the City Council now wishes to appoint Viramontes as the City’s City Manager and continue Viramontes employment as the Finance Director; and WHEREAS, the position of City Manager is an “at will” position, not subject to the City’s personnel rules; and
WHEREAS, it is in the City’s best interest to continue the employment of Viramontes as the Finance Director and additionally as the City Manager, subject always to the direction of the City Council; and
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth hereinafter, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation. The Parties incorporate the foregoing recitals as if fully set forth herein verbatim.
2. Hire. City acknowledges that it is appointing and/or hiring Viramontes as its City Manager effective March 1, 2024, and it is therefore appointing and/or hiring Viramontes as its Finance Director effective March 1, 2024 (“Effective Date”) pursuant to the terms and conditions of This Agreement. Viramontes shall remain in the exclusive hire of City during the term of This Agreement and shall neither accept other employment nor become employed by any other employer until the end of the Term or earlier termination of This Agreement.
3. “At-Will” Employment. Viramontes’ employment with City is at the sole will, discretion, and pleasure of the City. The City Council may fix any such additional terms and conditions
EMPLOYMENT AGREEMENT
of employment, as they may determine from time to time, relating to Viramontes’ performance, provided such terms and conditions are not inconsistent with or in conflict with the provisions of This Agreement, the City Municipal Code, or any other law.
The terms of the City’s personnel rules, policies, procedures, ordinances, or resolutions (collectively “Personnel Policies”) shall not apply to Viramontes unless made expressly applicable, except that all policies and regulations related to the prevention of harassment, discrimination and retaliation shall apply to Viramontes.
This Agreement is not intended to, or does it confer any right to any property interest in continued employment, or any due process property right to a hearing before or after a decision by the City Council to terminate Viramontes’ employment. Subject to State and Federal law, nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of the City to terminate the services of Viramontes.
4. Duties.
a. Finance Director. Viramontes shall have such duties and responsibilities as described by the job description of the position of Finance Director, and all other duties and functions as reasonably assigned by the City Council from time to time.
As the Finance Director, Viramontes will be considered a member of the City’s management team and will be responsible for the management of the Finance Department. Viramontes shall report directly to the City Council.
b. City Manager. Employee accepts employment with the City as its City Manager and agrees to perform all functions, duties, and services as set forth in McFarland Municipal Code Chapter 2.16, City regulations and procedures, the City Manager’s job description, and each of them currently or may in the future exist. Such duties include, but not limited to the following:
1. Assist the City Council in the development of City goals, objectives, and priorities.
Oversee special programs as assigned by the City Council.
2. Select, appoint, supervise, train, evaluate, discipline, and reward City department heads and staff members of the Office of the City Manager. Direct, evaluate, reward, and discipline those employees. Assure that department heads provide job safe practices and instruction related to the typical work environments of their departments.
3. Provide visionary leadership in managing city affairs, including strategic planning, budgeting, and policy development.
4. Interpret City Policy for City employees and the general public. Direct the preparation of the City’s annual budget and review and adjust department budget estimates before final submittal to the City Council.
5. Engage with residents, businesses, and community groups to understand and address local needs, enhancing community satisfaction.
EMPLOYMENT AGREEMENT
6. Serve as the primary liaison to the City Council, providing regular updates and ensuring council decisions are effectively implemented.
7. Attend all meetings of the City Council, unless excused therefrom.
8. May attend any, and all meetings of City commissions, boards, or committees created by the City Council, upon his/her own volition, and will attend such meetings upon direction of the City Council.
9. Represent the City on various regional, community, and professional boards, committees, and commissions, and make necessary presentations. Maintain effective liaison with colleagues and practitioners in similar local, state, and federal activities.
10. Conduct legislative advocacy and analysis on behalf of the city and ensure the City Council is informed of the City’s position.
11. Commit the City to courses of action within established general policy. Pursue economic development on behalf of the City and serve as Executive Director of the City’s Redevelopment Agency and Public Finance Authority.
12. Negotiate with those collective bargaining groups representing City employees and with outside entities concerning the establishment of contractual relationships with the City.
13. Prepare staff analysis and reports on various projects and programs. Present analysis in both oral and written form through Council and other public presentations.
14. Conduct complex administrative and operational studies, analyze findings, and prepare recommendations regarding proposals for programs, services, equipment, and personnel.
15. Performs related duties as assigned.
16. Coordinate emergency response strategies and ensure preparedness for city-wide emergencies.
17. Performs other duties as assigned.
At the option of the City, Employee shall serve as the Executive Director of or a representative to any other authority or agency created by or staffed by the City. Employee shall exercise such other powers and perform such other duties as the City, by the City Council, may from time-to-time assign.
Viramontes shall devote his full energies, interests, abilities, and productive time to the performance of this Agreement, and utilize his best efforts to promote City’s interests.
Viramontes shall not engage in any activity, consulting service or enterprise, for compensation or otherwise (together “Outside Employment”), which is actually or potentially in conflict with or inimical to, or which materially interferes with, his duties and responsibilities to the City.
Additionally, Viramontes shall not undertake any Outside Employment except with the consent of the City Council.
EMPLOYMENT AGREEMENT
5. Term. Except as hereinafter described, the term of this Agreement shall be for three (3) years commencing on the Effective Date. The term of this contract shall automatically renew for an additional one (1) year on the effective date after the initial three (3) year term, unless mutually agreed by both parties to renegotiate the terms of this contract. The termination of this contract may be accomplished pursuant to the provisions of Section 6 of This Agreement.
6. Termination. Viramontes’ “at-will” employment as City Manager may be terminated as follows:
a. Resignation. If Viramontes elects to resign at any time during the term of this Agreement, he may do so upon giving City thirty (30) days' written notice.
Termination pursuant to such action shall occur thirty (30) calendar days after service of said notice, or on such other date as may be agreed to by the Parties. b. Retirement. If Viramontes elects to retire, He shall inform City, in writing, at least thirty (30) days prior to the effective date of such retirement. City shall cooperate fully with Employee to provide all information in a timely manner. c. Termination “Without Cause” from Finance Director Position. City reserves the right to terminate this Agreement and Viramontes’ employment as City Finance Director at any time, at the will, discretion and pleasure of the City Council “without cause” or advance notice. City’s only obligation in the event of such termination will be payment to Viramontes of all compensation then due and owing as set forth in this Agreement up to and including the effective date of termination d. Termination “Without Cause” from City Manager Position. City reserves the right to terminate this Agreement and Employee's employment as City Manager at any time, “without cause” pursuant to McFarland Municipal Code Sections 2.16, except as limited by McFarland Municipal Code section 2.16.McFarland Municipal Code section 2.16.260, which states:
Notwithstanding the provisions of this chapter, the city manager shall not be removed from office during or within a period of ninety days next succeeding any general municipal election held in the city at which election a member of the city council is elected; the purpose of this provision is to allow any newly elected member of the city council or a reorganized city council to observe the actions and ability of the city manager in the performance of the powers and duties of his office. After the expiration of the ninety-day period aforementioned, the provisions of this chapter as to the removal of the city manager shall apply and be effective.
i. Upon termination without cause from both the City Manager and Finance Director Positions, Viramontes will be paid for all accrued unused paid leave, as well as three months of COBRA insurance, and three months of the Applicant’s salary at the rate of pay at the time of termination.
EMPLOYMENT AGREEMENT
ii. The severance pay will be in addition to pay accrued, but not remitted, prior to the notice of termination, and any accrued PTO. The severance rights provided in this Paragraph 7(H) shall constitute the sole and only entitlement of Employee with respect to severance pay in the event of the termination other than for cause or by expiration of this Agreement.
Viramontes expressly waives any and all other rights with respect to severance pay except as provided herein, including any and all rights he may have to a separation payment pursuant to any joint powers insurance authority memorandum of liability coverage then in effect. Any and all severance rights are conditioned upon and in consideration for execution of the Standard “Agreement of Separation, Severance, and General Release” attached hereto in form only as Exhibit “C.”
e. Termination “With Cause.” The City reserves the right to terminate this Agreement and Viramontes’ employment from one, or both positions, at any time, “with cause.” “Cause” shall include, but not be limited to:
i. Willful misconduct or gross negligence;
ii. Theft, or attempted theft, financial mismanagement, material dishonesty, willful or persistent breach of duties, engaging in conduct tending to bring embarrassment or disrepute to the City, unauthorized or excessive absences; iii. A formal investigation commissioned by the City Council and conducted by a third-party investigator hired by the City Council in which the City Council has determined that the Employee has engaged in unlawful discrimination or harassment of Employees or any third party while on City Premises or on City time. City is not required to wait until Employee has exhausted any appeal rights prior to terminating This Agreement “for cause;”
iv. Conviction of any felony, or for any misdemeanor involving moral turpitude, corruption, or dishonesty. “Conviction” shall include any guilty plea, plea of nolo contendere, or any other disposition other than a dismissal of charges or acquittal. City is not required to wait until Employee has exhausted any appeal rights prior to terminating This Agreement “for cause;”
v. Viramontes ’death; or
vi. If Viramontes is determined by a court of competent jurisdiction of the State of California’s Fair Political Practices Commission to have knowingly and unlawfully participated in a governmental decision I which he had a conflict of interest as defined in Government Code Section 87100 et seq. or Government Code Section 1090 et seq.;
vii. Viramontes permanent disability if such disability precludes Viramontes from performing His/her essential job duties for more than six (6) cumulative months after attempts at a reasonable accommodation pursuant to the Americans with Disabilities Act and/or California’s Fair Employment & Housing Act.
f. Termination Obligations. Viramontes agrees that all property, including, without limitation, all equipment, Confidential Information (as defined below), documents,
EMPLOYMENT AGREEMENT
records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to City and shall be returned promptly to City upon termination of Viramontes’ employment. Viramontes’ obligations under this subsection shall survive the termination of his employment and the expiration of this Agreement.
i. Confidential Information. “Confidential Information” shall include, but not be limited to, all information or material that Viramontes learns of or obtains during his employment with City that is or was confidential or privileged by virtue of it having been discussed or presented in a dulynoticed closed session meeting of the City Council, or otherwise privileged and/or confidential under applicable law, including but not limited to personnel information, information pertaining to on-going or potential litigation, information learned in the context of the attorney-client relationship with the City Attorney or special counsel to the City.
Confidential Information as defined includes, but is not limited to, all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, internal processes and procedures, and other information disclosed or submitted, orally, in writing, or by any other media, to Viramontes by City.
Nothing herein shall require City to disclose any of its information to Employee.
ii. During his employment with City as City Manager, Viramontes shall use and disclose Confidential Information only for the benefit of City and as is, or may be, necessary to perform his job responsibilities under this Agreement. Following the termination of this Agreement, Viramontes shall not use or disclose any Confidential Information, except with the express written consent of City. Viramontes’ obligations under this Section shall survive the termination of his employment and the expiration of this Agreement.
7. Salary and Benefits. Viramontes’ salary and other benefits for all work or services called for under This Agreement shall be as follows:
A. Salary. Commencing on the Effective Date, Viramontes’ annual salary shall be one hundred and eighty-five thousand dollars ($185,000), which shall be paid in bi-weekly pay periods. Any salary increases shall be implemented by written amendment to This Agreement and upon approval by the City Council.
Viramontes shall be entitled to a three percent (3%) Cost of Living Adjustment (“COLA”) during each year of this Agreement. Any salary increases in addition to COLA shall be implemented by written amendment to this Agreement and upon approval by the City Council.
EMPLOYMENT AGREEMENT
The compensation set forth in this section shall be Viramontes’ total compensation under this Agreement, and Viramontes shall not be eligible for any other benefits or compensation not specifically provided for in this Agreement.
Should Viramontes’ employment as either City Manager or as Finance Director be terminated, Viramontes and the City agree, in good faith, to re-negotiate the terms of Viramontes’ Salary.
The positions of City Manager and Finance Director are exempt under the Fair Labor Standards Act and, therefore, no overtime pay will be paid to Viramontes based on hours worked.
B. Vacation. Viramontes shall cash out the vacation he has accrued as the Finance Director and shall receive eighty (80) hours of vacation leave, commencing on the first day of each year of his employment. At the end of each year of Viramontes’ employment, any unused vacation hours shall be cashed out prior to his accrual of an additional eighty (80) hours.
C. Sick Leave. Viramontes shall keep the sick leave he has accrued as the Finance Director and shall continue to accrue eight (8) hours of sick leave per month of employment. The balance of sick leave shall not exceed any maximum accrual amounts set forth in the City's Employee Handbook. Unused sick leave will not be paid out upon termination or expiration of This Agreement.
D. Administrative Leave. Viramontes shall cash out the administrative leave he has accrued as the Finance Director and will continue to receive forty (40) hours of administrative leave per year, commencing on the first day of each year of his/her employment. Administrative leave will not carry over calendar years. At the end of each year of Viramontes’ employment, any unused hours shall be cashed out prior to His/her accrual of an additional forty (40) hours.
E. Holiday and Other Leaves. Viramontes shall receive the same leaves, holidays, and other time off as provided to other employees at the City.
F. Health Insurance Benefits. The City shall provide health insurance coverage for Viramontes and his family, consistent with the health insurance benefits provided to City employees. Viramontes may waive this health insurance coverage so long as he has proof of other group coverage in accordance with the Affordable Care Act, (i.e. is not purchasing coverage from the exchange).
G. Term Life Insurance. The City shall pay the premiums for a group life insurance policy consistent with the City employee handbook. Viramontes shall name the beneficiary of the life insurance policy, provided said beneficiary has and maintains an insurable interest in Viramontes.
EMPLOYMENT AGREEMENT
H. Vehicle. There will be no take home vehicle assigned to the Viramontes and Viramontes shall be required to adhere to all City policies and procedures regarding the use of City vehicles.
I. Cell Phone. City shall provide Viramontes with a cell phone purchased by City to be used by Viramontes exclusively for the performance of his duties under This Agreement and City shall pay the monthly charges for the cell phone data usage.
Alternatively, at Viramontes’ election, City will pay Viramontes an allowance of $50.00 per month for use toward His/her personal cell phone and data plan. Viramontes acknowledges that use of the City provided cell phone, or his personal cell phone, for City business may be subject to such usage to disclosure under the California Public Records Act.
J. Laptop and Telework Equipment. City shall provide Viramontes with a new laptop and telework equipment of his choosing to support his employment needs. The City shall budget annually thereafter for a new laptop and telework equipment. This annual budget allocation is intended to ensure Viramontes has access to the most current and effective tools for performing duties, including but not limited to communication devices and productivity software. Viramontes shall return the laptop and any Cityprovided telework equipment when he ceases his employment with the City. The laptop and telework equipment shall be used exclusively for city business.
K. Retirement. City represents and Viramontes acknowledges that City is not a CalPERS agency for retirement purposes. The City shall contribute the equivalent of ten percent (10%) of Viramontes’ salary annually to Viramontes’401(k) or deferred compensation retirement account. Viramontes shall choose whether he wants the contribution made to his 401(k) or deferred compensation account, or a combination of both.
L. Professional Development. City shall pay for Applicant’s continued professional participation, growth, enhancement, or for the good of the city. City shall budget and pay the Employees attendance at professional organization conferences annually, including those which allow Applicant to maintain his license as a certified public accountant.
a. Professional Development includes membership, training, or conferences from the following entities:
i. The California Society of Municipal Finance Officers ii. The Government Finance Officers Associations
iii. The California League of Cities.
iv. Other training beneficial to the enhancement of the applicant’s job duties and functions.
M. Expenses. City shall reimburse Viramontes for all reasonable out-of-pocket expenses incurred while performing the duties described in This Agreement, which may include travel, meals, lodging expenses, and parking fees. Viramontes shall submit a receipt
EMPLOYMENT AGREEMENT
and a description of the expenses to the City’s Finance Director within thirty (30) days of the date each expense is incurred as a condition of obtaining reimbursement.
8. Bonding and Indemnification. City shall bear the full costs of any fidelity or other bond required of Viramontes under any law or ordinance. City shall defend, save harmless and indemnify Viramontes from any and all demands, claims, suits, actions, or other legal proceedings (“Claims”) brought against Him in His individual capacity or in His official capacity as City Manager, provided the Claims arise while Viramontesis acting within the course and scope of His employment and provided He did not act or fail to act because of actual fraud, corruption or malice. The provision shall not extend to claims brought by City itself or where indemnity is otherwise prohibited by law.
9. Evaluation. The City Council shall evaluate Viramontes after the first six (6) months of the Term of This Agreement. The City Council shall have the right to establish the format and the forms to be used. Thereafter, City Council shall evaluate Viramontes at least one (1) time per year during the pendency of this Agreement. Viramontes shall be responsible for initiating the annual evaluation. However, the City Council may conduct more frequent performance evaluations at their discretion.
10. Notices. Notices pursuant to This Agreement shall be deemed to be given when personally delivered to the party to whom directed or when deposited in the United States Mail, postage prepaid or by electronic mail (Email) or, if notice is given to City, if sent by confirmed facsimile, addressed as follows:
City Address
City of McFarland Diego Viramontes
401 West Kern Avenue 9439 Woodbrook Dr
McFarland, California 93250 Shafter, CA 93263
Email: [email protected] Email:[email protected] Either party may change his/her or its address by providing written notice to the other party in the manner described herein.
11. General Provisions.
A. Entire Agreement. This Agreement constitutes the complete understanding between the Parties, is fully integrated, and supersedes any and all prior agreements – including the Parties’ Consulting Agreement – promises, representations, or inducements, no matter their form, concerning the subject matter of This Agreement. No subsequent agreements, promises, representations, or inducements will be binding unless recorded in a written document, which specifically references This Agreement and is signed by the Parties or their authorized representatives. The Parties acknowledge that This Agreement may be used as evidence in any subsequent proceeding in which either Party alleges a breach of This Agreement or seeks to enforce its terms, provisions, obligations, or as compelled by law.
EMPLOYMENT AGREEMENT
B. Captions. The headings used in This Agreement are inserted for reference purposes only and shall not be deemed to limit or affect in any way the meaning or interpretation of any of the terms or provisions of This Agreement.
C. Severability. If any provision contained in This Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of This Agreement shall be deemed severable and shall not be affected thereby and same shall remain in full force and effect.
D. Amendment. This Agreement may only be amended by a writing executed by all parties.
E. Assignment. Employee shall not assign any rights or obligations under this Agreement, nor any interest in it. City may, upon prior written notice to Employee, assign its rights and obligations hereunder.
F. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action or motion to enforce the terms or conditions of This Agreement shall be brought only in the Superior Court of California for the County of Kern.
G. Waiver. Waiver by any party of any breach of This Agreement by the other party, whether such waiver be direct or implied, shall not be construed as a continuing waiver or consent to any subsequent breach of This Agreement on the part of the other party.
H. Further Assurances. Each party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of This Agreement and the intent of the parties to This Agreement.
I. Assignment. Neither This Agreement, nor any interest in it, may be assigned or transferred by any party without the prior written consent of all the parties. Any such assignment will be subject to such terms and conditions as City may choose to impose.
J. Binding Effect. The rights and obligations of This Agreement shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors and assigns, and whenever the context so requires, the masculine gender and includes the feminine and neuter, and the singular number includes the plural. This Agreement may be executed in any number of counterparts, each of which shall be considered as an original and be effective as such.
K. Merger And Modification. This contract sets forth the entire Agreement between the parties and supersedes all other oral or written representations. This contract may be modified only in writing, approved by the City Council, and signed by all the parties.
L. Attorneys’ Fees. If either party commences any action or proceeding relating to This Agreement or the enforcement of any provision of This Agreement against the other
EMPLOYMENT AGREEMENT
party, the prevailing party, in such action or proceeding, shall be entitled to recover reasonable attorneys’ fees, costs, and all other litigation costs.
M. Execution. This Agreement is effective on the effective date listed earlier in the agreement. It is the product of negotiation, and all parties are equally responsible for authorship of This Agreement. Section 1654 of the California Civil Code shall not apply to the interpretation of This Agreement.
N. Non-Interest. Except for Viramontes, no officer or employee of City shall hold any interest in This Agreement (California Government Code section 1090).
O. Counterparts. This Agreement may be executed in counterparts and the respective signature pages for each party may thereafter be attached to the body of This Agreement to constitute one integrated Agreement which is as fully effective and binding as if the entire document had been signed at one time.
P. Acknowledgement of Statutes That May Affect Employment Relationship. City and Employee acknowledge that, in addition to the statutes previously referenced in This Agreement, the following statutes shall govern This employment relationship under the circumstances described in the statutes:
a. Government Code section 53243 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Viramontes, that provides paid leave salary offered by the local agency to the officer or Employee pending an investigation shall require that any salary provided for that purpose be fully reimbursed if the officer or Employee is convicted of a crime involving an abuse of his office or position.
b. Government Code section 53243.1 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Employee that provides funds for the legal criminal defense of an officer or Employee shall require that any funds provided for that purpose be fully reimbursed to the local agency if the officer or Employee is convicted of a crime involving an abuse of his office or position. c. Government Code section 53243.3 states that on or after January 1, 2012, if a local agency, such as the City, provides, in the absence of a contractual obligation, for any of the payments described in the corresponding article of the Government Code, then the Employee or officer, such as Employee, receiving any payments provided for those purposes shall fully reimburse the local agency that provided those payments in the event that the Employee or officer is convicted of a crime involving the abuse of his office or position.
d. Government Code sections 87100 et seq., section 1090 and section 1126, and all other similar statutory and administrative rules, prohibit conflicts of interest.
EMPLOYMENT AGREEMENT
During the term of This Agreement, Viramontes shall comply with all those requirements of law, and 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 Employee's duties under This Agreement.
Viramontes represents that He has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to him, including that Employee agrees that any cash settlement or severance related to a termination that Employee may receive from City shall be fully reimbursed to the local agency if Employee is convicted of a crime involving an abuse of Employee's office or position.
Q. Independent Legal Advice. City and Viramontes 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 or had the opportunity to do so and City and Viramontes further represent and warrant that each has carefully reviewed This entire Agreement and that each 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.
R. Non-Interest. With the exception of Employee, no officer or employee of the City shall hold any interest in this Agreement (California Government Code section 1090). [Signature Page Follows]
EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the Parties have executed This Agreement to be effective on the day and year first above written:
Dated: CITY OF MCFARLAND
By: _________________________
Saul Ayon
Title: Mayor
Dated: EMPLOYEE
By: _________________________
Diego Viramontes
APPROVED AS TO FORM:
By:
Nathan M. Hodges, Esq.
Hodges Law Group
City Attorney
Attachments:
Exhibit A: City of McFarland City Manager Position Description – Diego Viramontes Exhibit B: City of McFarland Finance Director Position Description Exhibit C: Severance Agreement
City of McFarland
City Council Meeting
STAFF REPORT
Agenda Item No. 15.
Section: ADMINISTRATIVE
AGENDA
Meeting Date: February 22,
2024
TO: Honorable Mayor and Council Members
FROM: Kenny Williams, City Manager
Adam Cabrera , Assistant Public Works Director
SUBJECT: Approval of Resolution No. 2024-23 A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MCFARLAND ACCEPTING THE COMPLETED WORK BY ADVANCED CONCRETE FOR THE 2ND STREET LANDSCAPE AND
PEDESTRIAN IMPROVEMENTS – STPL 5343 (017) PROJECT AND
AUTHORIZING THE CITY CLERK TO THE FILE THE NOTICE OF
COMPLETION WITH THE KERN COUNTY RECORDER.
SUMMARY:
This is a Notice of Completion for the work under contract agreement with Advanced Concrete for the 2nd Street Landscape and Pedestrian Improvements – STPL 5343 (017) Project. The work consisted of installation of landscaping and pedestrian improvements on the West side of 2nd Street from Harlow Ave. to California Ave.
The City Council awarded the Contract to Advanced Concrete on April 13, 2023 in the amount of $367,626.64. The final project construction cost with quantity adjustments is $367,407.45.
There were no change orders on this project.
The Engineering Department has inspected the work and confirmed to Public Works that the work is in conformance with the plans and specifications as of January 17, 2024.
FINANCIAL IMPACT:
Costs: Construction Cost: $ 367,407.45
Funding: Federal Match (88.53%) -
(RSTP): $ 325,265.81
Local Match (11.47%):
Transportation
Development Act
$ 42,141.64
RECOMMENDATION:
Motion to accept the completed work by Advanced Concrete for the 2nd Street Landscape and Pedestrian Improvements – STPL 5343 (017) Project and authorize the City Clerk to file the Notice of Completion with the Kern County Recorder. Staff further recommends the release of the 5% retention to the Contractor after 30 days pending claims or liens filed during this period.
ATTACHMENTS:
1. Notice of Acceptance
2. Notice of Completion
RESOLUTION NO. 2024-23
RESOLUTION NO. 2024-23 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MCFARLAND ACCEPTING THE COMPLETED WORK BY ADVANCED CONCRETE FOR THE 2ND STREET LANDSCAPE AND PEDESTRIAN IMPROVEMENTS – STPL 5343 (017)
PROJECT AND AUTHORIZING THE CITY CLERK TO THE FILE THE NOTICE OF COMPLETION WITH THE KERN COUNTY RECORDER.
WHEREAS, the City hired Advanced Concrete for the construction of the Second Street Landscape and Pedestrian Improvements;
WHEREAS, Advanced Concrete has completed the work as stipulated in the project; WHEREAS, the Engineering Department has inspected the work and confirmed to Public Works that the work is in conformance with the plans and specifications as of January 17, 2024.
WHEREAS, a Notice of Acceptance has been prepared by the Assistant Public Works Director to accept the finished improvements and thus transfer responsibility to the City for maintenance of said improvements;
WHEREAS, Upon acceptance of the improvements by the City, authorize the City Clerk to file a Notice of Completion with the Kern County Recorder’s office.
WHEREAS, Staff further recommends the release of the 5% retention to the Contractor after 30 days pending claims or liens filed during this period.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of McFarland that it hereby finds and determines as follows:
1. The foregoing recitals are true and correct.
2. The improvements for the Second Street Landscape and Pedestrian Improvements are hereby accepted. The Assistant Public Works Director is authorized to sign the Notice of Acceptance.
3. The City Clerk is authorized to file a Notice of Completion with the Kern County Recorder.
4. The City Clerk shall certify to the passage and adoption of this resolution.
5. This resolution is effective immediately.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of McFarland on
February 22, 2024 by the following vote:
Aye Nae Abstain Absent
Saul Ayon
Ricardo Cano
Amador Ayon
Anita Gonzalez
María T. Pérez
CITY OF MCFARLAND
____________________________
Saul Ayon, Mayor
ATTEST:
_____________________________
Francisca Alvarado, City Clerk
I, _________________________, City Clerk of the City of McFarland, California, DO HEREBY CERTIFY that the foregoing resolution is a true and accurate copy of the Resolution passed and adopted by the City Council of the City of McFarland on the date and by the vote indicated herein. _____________________________
Francisca Alvarado, City Clerk
Recording Requested By:
FBO
CITY OF McFARLAND
When Recorded Mail to:
City of McFarland
401 West Kern Ave.
McFarland, CA 93250
NOTICE OF COMPLETION
NOTICE IS HEREBY GIVEN THAT:
1. The undersigned is OWNER or Agent of the OWNER of the interest or estate stated below in the property hereinafter described.
2. The FULL NAME of the OWNER is City of McFarland
3. The FULL ADDRESS of the OWNER is 401 West Kern Ave. McFarland, CA 93250
4. The NATURE OF THE INTEREST or ESTATE of the undersigned is: In Fee. (if other than fee, Strike "In Fee" and insert, for example, "Purchaser under contract of purchase," or "Lessee.")
5. The FULL NAMES and FULL ADDRESSES of ALL PERSONS, if any, WHO HOLD SUCH INTEREST or ESTATE with the undersigned as JOINT TENANTS IN COMMON are:
Names Addresses
6. The full names and full addresses of the predecessors in interest of the undersigned if the property was transferred subsequent to the commencement of the work of improvement herein referred to:
Names Addresses
7. A work of improvement on the property hereinafter described was COMPLETED January 12, 2024
8. The work of improvement completed is described as follows: 2nd Street Landscape & Pedestrian Improvements – STPL 5343 (017)
9. The NAME OF THE ORIGINAL CONTRACTOR, if any, for such work of improvement is: Advanced Concrete
10. The street address of said property is: 2nd Street from Harlow Ave. to California Ave.
11. The property on which said work of improvement was completed is in the City of McFarland County of Kern, State of California, and is described as follows:
Landscape and Pedestrian Improvements
(Mayor)
Date Saul Ayon – City Mayor
Verification for INDIVIDUAL owner
I, the undersigned, declare under penalty of perjury under the laws of the State of California that I am the owner of the aforesaid interest or estate in the property described in the above notice; that I have said notice, that I know and understand the contents thereof, and that the facts stated therein are true and correct.
Date and Place Signature of Owner named in paragraph 2
Verification for NON-INDIVIDUAL owner: I, the undersigned, declare under penalty of perjury under the laws of the State of California that I am the City Mayor of the aforesaid interest or estate in the property described in the above notice; that I have read the said notice, that I know and understand the contents thereof, and that the facts stated therein are true and correct. - City of McFarland (Mayor)
Date and Place Saul Ayon – City Mayor
SUBSCRIBED AND SWORN TO before me on
Francisca Alvarado, City Clerk
City of McFarland Revised 9/22/2007
City of McFarland
City Council Meeting
STAFF REPORT
Agenda Item No. 16.
Section: ADMINISTRATIVE
AGENDA
Meeting Date: February 22,
2024
TO: Honorable Mayor and Council Members
FROM: Kenny Williams, City Manager
Adam Cabrera , Assistant Public Works Director
SUBJECT: Resolution 2024-20 A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MCFARLAND ACCEPTING THE COMPLETED WORK BY BOWMAN
ASPHALT, INC. FOR THE 2023 STREET REHABILITATION – VARIOUS
LOCATIONS PROJECT AND AUTHORIZE THE CITY CLERK TO FILE THE NOTICE OF COMPLETION WITH THE KERN COUNTY RECORDER.
SUMMARY:
This is a Notice of Completion for the work under contract agreement with Bowman Asphalt, Inc. for the 2023 Street Rehabilitation - Various Locations project. The work consisted of road reconstruction/overlay: Grind and remove 3” of asphalt and overlay with 3 inches of hot mix asphalt. Installation of traffic stripes, pavement markings, and roadside signs; and reconstruction of ADA curb ramps, on Ebell St. from Woodruff Ave. to Mast Ave.; Wiley St. from E. Sherwood Ave. to Robertson Ave. and San Juan St. from E. Sherwood Ave. to E.
Perkins Ave.
The City Council awarded the Contract to Bowman Asphalt, Inc. on July 27, 2023 in the amount of $799,565.00. The final project construction cost with quantity adjustments is $755,539.18. There were no change orders on this project.
It shall be noted that the final payment includes a payment deduction in the amount of $2,366.50; per Contract specifications: The City shall pay for all initial testing, all costs incurred for any additional testing due to failed tests shall be the responsibility of the Contractor.
The Engineering Department has inspected the work and confirmed to Public Works that the work is in conformance with the plans and specifications as of December 12, 2023.
FINANCIAL IMPACT:
Costs: Construction Cost: $ 755,539.18
Funding: Road Maintenance & Rehabilitation (SB1): $ 755,539.18 RECOMMENDATION:
Motion to accept the completed work by Bowman Asphalt, Inc. for the 2023 Street Rehabilitation - Various Locations project and authorize the City Clerk to file the Notice of
Completion with the Kern County Recorder. Staff further recommends the release of the 5% retention to the Contractor after 30 days pending claims or liens filed during this period.
ATTACHMENTS:
1. Notice of Acceptance
2. Notice of Completion
RESOLUTION NO. 2024-20
RESOLUTION NO. 2024-20 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MCFARLAND ACCEPTING THE COMPLETED WORK FOR THE 2023 STREET REHABILITATION – VARIOUS LOCATIONS
WHEREAS, The City hired Bowman Asphalt, Inc. for the construction of the 2023 Street Rehabilitation – Various Locations;
WHEREAS, Bowman Asphalt, Inc. has completed the work as stipulated in the project; WHEREAS, The Engineering Department has inspected the work and confirmed to Public Works that the work is in conformance with the plans and specifications as of December 12, 2023.
WHEREAS, A Notice of Acceptance has been prepared by the Assistant Public Works Director to accept the finished improvements and thus transfer responsibility to the City for maintenance of said improvements;
WHEREAS, Upon acceptance of the improvements by the City, authorize the City Clerk to file a Notice of Completion with the Kern County Recorder’s office.
WHEREAS, Staff further recommends the release of the 5% retention to the Contractor after 30 days pending claims or liens filed during this period.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of McFarland that it hereby finds and determines as follows:
1. The foregoing recitals are true and correct.
2. The improvements for the 2023 Street Rehabilitation – Various Locations are hereby accepted.
The Assistant Public Works Director is authorized to sign the Notice of Acceptance.
3. The City Clerk is authorized to file a Notice of Completion with the Kern County Recorder.
4. The City Clerk shall certify the passage and adoption of this resolution.
5. This resolution is effective immediately.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of McFarland on
February 22, 2024 by the following vote:
Aye Nae Abstain Absent
Saul Ayon
Ricardo Cano
Amador Ayon
Anita Gonzalez
María T. Pérez
CITY OF MCFARLAND
____________________________
Saul Ayon, Mayor
ATTEST:
_____________________________
Francisca Alvarado, City Clerk
I, _________________________, City Clerk of the City of McFarland, California, DO HEREBY CERTIFY that the foregoing resolution is a true and accurate copy of the Resolution passed and adopted by the City Council of the City of McFarland on the date and by the vote indicated herein. _____________________________
Francisca Alvarado, City Clerk
Recording Requested By:
FBO
CITY OF McFARLAND
When Recorded Mail to:
City of McFarland
401 West Kern Ave.
McFarland, CA 93250
NOTICE OF COMPLETION
NOTICE IS HEREBY GIVEN THAT:
1. The undersigned is OWNER or Agent of the OWNER of the interest or estate stated below in the property hereinafter described.
2. The FULL NAME of the OWNER is City of McFarland
3. The FULL ADDRESS of the OWNER is 401 West Kern Ave. McFarland, CA 93250
4. The NATURE OF THE INTEREST or ESTATE of the undersigned is: In Fee. (if other than fee, Strike "In Fee" and insert, for example, "Purchaser under contract of purchase," or "Lessee.")
5. The FULL NAMES and FULL ADDRESSES of ALL PERSONS, if any, WHO HOLD SUCH INTEREST or ESTATE with the undersigned as JOINT TENANTS IN COMMON are:
Names Addresses
6. The full names and full addresses of the predecessors in interest of the undersigned if the property was transferred subsequent to the commencement of the work of improvement herein referred to:
Names Addresses
7. A work of improvement on the property hereinafter described was COMPLETED November 07, 2023
8. The work of improvement completed is described as follows: 2023 STREET REHABILITATION – VARIOUS LOCATIONS
9. The NAME OF THE ORIGINAL CONTRACTOR, if any, for such work of improvement is: Bowman Asphalt, Inc.
10. The street address of said property is: EBELL ST. - Woodruff Ave. to Mast Ave; WILEY ST. - E. Sherwood Ave. to Robertson Ave; and SAN JUAN ST. – E. Sherwood Ave. to E. Perkins Ave.
11. The property on which said work of improvement was completed is in the City of McFarland County of Kern, State of California, and is described as follows:
Road reconstruction/overlay: Grind and remove 3” of asphalt and overlay with 3 inches of hot mix asphalt. Install traffic stripes, pavement markings, and roadside signs; reconstruct concrete curb ramps. (Mayor)
Date Saul Ayon – City Mayor
Verification for INDIVIDUAL owner
I, the undersigned, declare under penalty of perjury under the laws of the State of California that I am the owner of the aforesaid interest or estate in the property described in the above notice; that I have said notice, that I know and understand the contents thereof, and that the facts stated therein are true and correct.
Date and Place Signature of Owner named in paragraph 2
Verification for NON-INDIVIDUAL owner: I, the undersigned, declare under penalty of perjury under the laws of the State of California that I am the City Mayor of the aforesaid interest or estate in the property described in the above notice; that I have read the said notice, that I know and understand the contents thereof, and that the facts stated therein are true and correct. - City of McFarland (Mayor)
Date and Place Saul Ayon – City Mayor
SUBSCRIBED AND SWORN TO before me on
Francisca Alvarado, City Clerk
City of McFarland Revised 9/22/2007