CITY OF ATWATER CITY COUNCIL AND SUCCESSOR AGENCY TO THE ATWATER REDEVELOPMENT AGENCY Council Chambers 750 Bellevue Road Atwater, California March 26, 2018 5:00 PM CALL TO ORDER: ROLL CALL: (City Council) Creighton ____, Raymond ____, Vierra ____, Vineyard ____, Price ____ CLOSED SESSION: Adjourn to Conference Room A Conference with Labor Negotiator – Government Code Section 54957.6(a). Agency Negotiator: Interim City Manager; Bargaining Group: Unrepresented; Titles: Deputy City Manager/Finance Director and Deputy City Manager Conference with Legal Counsel – Anticipated Litigation – Significant exposure to litigation pursuant to Section 54956.9(2)(3)(d) Number of cases: (2) REGULAR SESSION: (Council Chambers) 6:00 PM CALL TO ORDER: PLEDGE OF ALLEGIANCE TO THE FLAG: INVOCATION: Invocation by Police Chaplain McClellan ROLL CALL: (City Council/Governing Board) Creighton ____, Raymond ____, Vierra ____, Vineyard ____, Price ____ MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: SUBSEQUENT NEED ITEMS: (The City Clerk shall announce any requests for items requiring immediate action subsequent to the posting of the agenda. Subsequent need items require a two-thirds vote of the members of the City Council present at the meeting.)
Transcript
CITY OF ATWATER CITY COUNCIL
AND SUCCESSOR AGENCY TO THE ATWATER
REDEVELOPMENT AGENCY
Council Chambers 750 Bellevue Road Atwater, California
March 26, 2018 5:00 PM
CALL TO ORDER: ROLL CALL: (City Council)
Creighton ____, Raymond ____, Vierra ____, Vineyard ____, Price ____
CLOSED SESSION: Adjourn to Conference Room A
Conference with Labor Negotiator – Government Code Section 54957.6(a). Agency Negotiator: Interim City Manager; Bargaining Group: Unrepresented; Titles: Deputy City Manager/Finance Director and Deputy City Manager
Conference with Legal Counsel – Anticipated Litigation – Significant exposure to litigation pursuant to Section 54956.9(2)(3)(d) Number of cases: (2)
REGULAR SESSION: (Council Chambers) 6:00 PM
CALL TO ORDER: PLEDGE OF ALLEGIANCE TO THE FLAG:
INVOCATION: Invocation by Police Chaplain McClellan
ROLL CALL: (City Council/Governing Board) Creighton ____, Raymond ____, Vierra ____, Vineyard ____, Price ____ MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: SUBSEQUENT NEED ITEMS: (The City Clerk shall announce any requests for items requiring
immediate action subsequent to the posting of the agenda. Subsequent need items require a two-thirds vote of the members of the City Council present at the meeting.)
City Council and Successor Agency to the ARA Agenda for Meeting of March 26, 2018 Page 2
APPROVAL OF AGENDA AS POSTED OR AS AMENDED: (This is the time for the City
Council/AFPD Board to remove items from the agenda or to change the order of the agenda.)
Recommendation: Motion to approve agenda as posted or as amended.
PRESENTATIONS:
LOVE ATWATER - celebrating 10 years of volunteerism in the City of Atwater - overview of projects and other achievements (Gloria Perez)
COMMENTS FROM THE PUBLIC:
CONSENT CALENDAR:
WARRANTS:
1. March 26, 2018
Recommendation: Approval of warrants as listed.
MINUTES: (City Council)
2. a) Regular meeting, February 12, 2018 b) Special meeting, February 21, 2018 c) Regular meeting, February 26, 2018 Recommendation: Approval of minutes as listed.
NOTICE TO THE PUBLIC
At this time any person may comment on any item which is not on the agenda. Please state your name and address for the record. Action will not be taken on an item that is not on the agenda. If it requires action, it will be referred to staff and/or placed on a future agenda.
To comment on an item that is on the agenda, please wait until the item is read for consideration; please limit comments to a maximum of five (5) minutes.
NOTICE TO THE PUBLIC
Background information has been provided on all matters listed under the Consent Calendar, and these items are considered to be routine. All items under the Consent Calendar are normally approved by one motion. If discussion is requested on any item, that item will be removed from the Consent Calendar for separate action.
Civility is expected from members of the public during the meeting. For more efficient use of time, disruptive behavior will not be tolerated. While you may not agree with what an individual is saying, please treat everyone with courtesy and respect.
City Council and Successor Agency to the ARA Agenda for Meeting of March 26, 2018 Page 3
AGREEMENTS: 3. Making a finding that the Fruitland Avenue Reconstruction Project and
Storm Drainage Pump Station located at Fruitland Avenue to be Categorically Exempt under CEQA, adopting Resolution No. 3021-18 approving Budget Amendment No. 10 regarding FY 2017-18 Gas Tax Fund (RSTP), and approving Professional Services Agreements with VVH Consulting Engineers (VVHCE) for additional Engineering Services for Fruitland Avenue Reconstruction Project and Storm Drainage Pump Station proposal for Fruitland Avenue (Interim Community Development Director Waterman)
Recommendation: That the City Council make the finding that the
project is Categorically Exempt under CEQA and adopt Resolution No. 3021-18 approving Budget Amendment No. 10 regarding FY 2017-18 Gas Tax Fund (RSTP); and
Approve Professional Services Agreement, in a form approved by the
Interim City Attorney, with VVH Consulting Engineers (VVHCE) for additional Engineering Services for Fruitland Avenue Reconstruction Project in an amount not to exceed $28,150 (the “Professional Services Agreement”); and
Approve Professional Services Agreement, in a form approved by the
Interim City Attorney, with VVH Consulting Engineers (VVHCE) for Storm Drainage Pump Station at Fruitland Avenue Reconstruction Project in an amount not to exceed $35,200 (the “Professional Services Agreement”); and
Authorize and direct the Interim City Manager to execute the Professional
Services Agreements on behalf of the City; or Approve the recommendation as presented. 4. Awarding a contract for the purchase of one (1) new Iteris 2 Camera/2
Vector System for the Shaffer Road/Atwater Boulevard intersection (Interim Public Works Director Shaw)
Recommendation: Awards a contract, in a form approved by the City
Attorney, to JAM Services, Inc., Livermore, CA for the purchase of one (1) new Iteris 2 Camera/2 Vector System in an amount not to exceed $29,319.51 including delivery and sales taxes; and authorizes and directs the Interim City Manager to execute the contract on behalf of the City.
City Council and Successor Agency to the ARA Agenda for Meeting of March 26, 2018 Page 4
Budget regarding Measure V transfer adjustment based on the required 20% set-a-side requirement for Alternative Mode Projects Interim Community Development Director Waterman)
Amendment No. 11 amending 2017-18 Fiscal Year Budget regarding Measure V transfer adjustment based on the most recent budget analysis.
6. Declaring two vehicles surplus and donating and transferring ownership of a 1995 Challenger Motor Home and a 2002 Ford Explorer XLS from the City of Atwater to the Atwater Police Activities League Program (Interim Police Chief Echevarria)
Recommendation: Adoption of Resolution No. 3023-18 and declaring two vehicles, a 1995 Challenger Motor Home (VIN# 1GBJP37N3S3330353)and a 2002 Ford Explorer XLS (VIN# 1FMZU72E72ZA36744) surplus, donate and transfer ownership from the City of Atwater to the Atwater Police Activities League Program and authorizes and directs the Interim City Manager to execute the documents on behalf of the City.
REPORTS: 7. Accepting and Filing City of Atwater Housing Successor Agency Annual Report for Fiscal Year 2016-17 with Housing and Community Development (HCD) (Interim Community Development Director Waterman) Recommendation: The City Council accept and file the City of Atwater
Housing Successor Agency Annual Report for Fiscal Year 2016-17 with HCD.
BUDGET AND FUNDING MATTERS: 8. Treasurer’s Report for the month of March, 2018 (City Treasurer Heller) Recommendation: Approve the Treasurer’s Report for the month of
March, 2018 as presented. 9. Adoption of Fiscal Year 2016-2017 audited Financial Statements (Finance
Director, Deol) Recommendation: Adoption of Fiscal Year 2016-2017 audited Financial
Statements.
City Council and Successor Agency to the ARA Agenda for Meeting of March 26, 2018 Page 5
PUBLIC HEARINGS: 10. Waiving the first reading and introducing Ordinance No. CS 994 amending
Title 13 “Public Services” Chapter 13.13 “Water Conservation Program,” Subsection 13.13.030, subsection 11 of the Atwater Municipal Code (Interim Community Development Director Waterman)
Recommendation: Open the public hearing and receive any testimony given regarding Ordinance No. CS 994; and Motion to waive the first reading and introduce Ordinance No. CS 994
amending Title 13, “Public Services” Chapter 13.13 “Water Conservation Program” Section 13.13.030, Subsection 11 of the Atwater Municipal Code; or
Motion to approve the recommendation as presented.
INTERIM CITY MANAGER REPORTS/UPDATES: 11. Ratifying Employment Agreements with the Deputy City Manager/Finance
Director and Deputy City Manager Recommendation: It is recommended that the City Council: Ratify the Employment Agreement, in a form approved by the Interim
City Attorney, for Deputy City Manager/Finance Director Lakhwinder Deol; Ratify the Employment Agreement, in a form approved by the Interim City
Attorney, for Deputy City Manager Lori Waterman; and Authorize and direct the Interim City Manager to execute the Agreements
on behalf of the City. 12. Verbal report regarding Spring Clean Up Day cancellation issues CITY COUNCIL MATTERS: 13. Discussion regarding any inclusions or exclusions to the newly created
City of Atwater, City Official’s Handbook with possible adoption thereof (Mayor Pro Tem Vineyard)
Recommendation: That the City Council, by motion, provide staff with
direction regarding any inclusions or exclusions to the City of Atwater, City Official’s Handbook.
City Council and Successor Agency to the ARA Agenda for Meeting of March 26, 2018 Page 6
City Council comments
CLOSED SESSION:
Continuation of Closed Session if necessary ADJOURNMENT: Adjourn to Atwater Community Center, Jessie Frago Room, 760 East Bellevue Road, Atwater on Wednesday, March 28, 2018 at 2:00 PM to hold a study session regarding the City of Atwater Organizational Restructure Project, Positioning the City for Financial Solvency: Phase Two of Two Recommendation: That the City Council, by motion, adjourn to a Study
Session on March 28, 2018 at 2:00 PM. CERTIFICATION: I, Don Hyler III, City Clerk/Board Clerk of the City of Atwater, do hereby certify that a copy of the foregoing agenda was posted at City Hall a minimum of 72 hours prior to the meeting.
______________________________________ DON HYLER III, CITY CLERK/BOARD CLERK AB 23 NOTICE: Pursuant to Government Code Section 54952.3, City Council is not receiving additional compensation for serving as members of the Housing Successor Agency or as Successor Agency to the Atwater Redevelopment Agency.
SB 343 NOTICE In accordance with California Government Code Section 54957.5, any writing or document that is a public record, relates to an open session agenda item and is distributed less than 72 hours prior to a regular meeting will be made available for public inspection in the office of the City Clerk at City Hall during normal business hours at 750 Bellevue Road.
If, however, the document or writing is not distributed until the regular meeting to which it relates, then the document or writing will be made available to the public at the location of the meeting, as listed on this agenda at 750 Bellevue Road.
In compliance with the federal Americans with Disabilities Act of 1990, upon request, the agenda can be provided in an alternative format to accommodate special needs. If you require special accommodations to participate in a City Council, Commission or Committee meeting due to a disability, please contact the City Clerk’s Office a minimum of three (3) business days in advance of the meeting at (209) 357-6205. You may also
Daylight Savings City Council Meeting - Spring Clean Up Day
CANCELLED BY
Time Begins 6:00 PM City Hall closed
7:00 AM - 2:00 PM
REPUBLIC DUE TO
WEATHER
City Hall closed
Community Development Merced County District 3
Meeting - CANCELLED "Mobile" Office Hours -
& Resources Commission Supervisor McDaniel
Comm. Mtg CANCELLED Adjourned City Council
1:30 - 3:30 PM
Meeting - Study Session City Hall closedSpecial City Council
Meeting-4:30 PM
~ March 2018 ~
Meeting 6:00 PM
Regular City Council Community Center
2:00 PM Frago Room
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30
Sunday Monday Tuesday Wednesday Thursday Friday
City Hall closed
Saturday
6:00 PM City Hall closed
City Council Meeting -
Community Development
& Resources Commission City Hall closed
Meeting - 6:00 PM
City Hall closed
Audit & Finance Merced County District 3
"Mobile" Office Hours -
Committee Meeting - Supervisor McDaniel
City Council Meeting - 1:30 - 3:30 PM
4:00 PM
6:00 PM
Notes:
~ April 2018 ~
CITY OF ATWATER CITY COUNCIL
FUTURE AGENDA ITEMS (NO ACTION REQUIRED):
Yard sale ordinance review Cannabis dispensaries research and review Tow Yard conversion to evidence storage Disposition of police vehicles and other police property Comparison of CAL FIRE vs. City owned Fire Department Micro Hospital research Ad Hoc Traffic Committee Communications System Agreement – Sheriff’s Office Town Hall Meetings Establish ordinance – Housing Authority Ratification of APOA Agreement
WARRANTS SUMMARY FOR MARCH 26,2OL8
AL OF WARRANTS (FROM WARRANT REPO
ADDITIONAL WARRANTS (THESE AMOUNTS ARE NOT TNCLUDED tN TOTAL WARRANTS)
DATE
3/t3/2OL8 Prewrittens included in this current warrant run. s (3,973.06)
s763.40
s40,059.825 3o,gso.t6
GRAND TOTAL OF WARRANTS PAID =======================================================================
INFORMATIONAL ONLY ( TNCLUDED rN THE TOTAL WARRANTS TOTAL)
NorthwoodVillage LDOrchard Park Estates LDWildwood Estates LDWoodview Garland LAShaffer Lakes West LDWoodhaven LDSierra Parks LDShaffer Lakes East LDPriceAnnexation LDSandlewood Square LDPajaro Dunes LDCottage Gardens LDAirport Business Park LDAtwater South LD
General Fund
Gene¡al Fund
lntemal Service Fund
Intemal Service Fr¡nd
General Fund
Communications
Towing Fees
Towing Fees
Adult Co-Ed Volleyball
Special Deparfnental Expense
Special Departrnental Expense
Osbom Park Tennis Courts
Vendor Name
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTzuC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
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Void Amount
686.20
686.20
686.20
DAVE SARGINSONProfessional Services72'ts4 0312v20t8 General Fund
Check Total:
Report Total:
AP-Checks forApproval (3/21/2018 - 12:41 PM) Page I
CITY COUNCIL
ACTION MINUTES
February 12, 2018 OPEN SESSION: (Council Chambers) The City Council of the City of Atwater met in Open Session this date at 5:30 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra, Mayor Pro Tem Vineyard, Mayor Price Absent: None Staff Present: Interim City Manager de Werk, City Attorney Terpstra, Recording Secretary Rasmussen
CLOSED SESSION: (Conference Room A) Mayor Price invited public comments on Closed Session items. No one came forward to speak. Mayor Price adjourned the meeting to Conference Room A for Closed Session at 5:36 PM. Closed Session was called to order at 5:39 PM. Conference with Labor Negotiator - Government Code Section 54957.6. Agency Negotiators: Interim City Manager de Werk and Human Resources Director Del Real; Bargaining Unit: Atwater Police Officers Association Closed Session adjourned at 6:09 PM.
CITY OF ATWATER
Minutes
City Council Meeting Action Minutes for February 12, 2018 Page 2
REGULAR SESSION: (Council Chambers) The City Council of the City of Atwater met in Regular Session this date at 6:13 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. PLEDGE OF ALLEGIANCE TO THE FLAG: The Pledge of Allegiance was led by Mayor Price. INVOCATION: The Invocation was led by City Council Member Raymond. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra, Mayor Pro
Tem Vineyard, Mayor Price Absent: None Staff Present: Interim City Manager de Werk, City Attorney Terpstra, City
Clerk Hyler III, City Treasurer Heller, CAL FIRE Battalion Chief Wight, Human Resources Director Del Real, Interim Public Works Director Shaw, Recreation Supervisor Rahn, Interim Community Development Director Waterman, Finance Director Deol, Recording Secretary Rasmussen
MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: City Attorney Terpstra reported that no action was taken and staff was given direction. The closed session agenda was completed. SUBSEQUENT NEED ITEMS: None. APPROVAL OF AGENDA AS POSTED OR AS AMENDED: MOTION: Mayor Pro Tem Vineyard moved to approve the agenda as posted. The motion was seconded by City Council Member Raymond and the vote was: Ayes: Vineyard, Vierra, Creighton, Raymond, Price; Noes: None; Absent: None. The motion passed. CEREMONIAL MATTERS: Marines of the Central California Veterans to present the U.S. Marines Combat Fighting Knife to the City of Atwater for their continued support of veterans and observance of the 242nd Birthday of the United States Marine Corps. (Mayor Price)
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Gary Brice representing the Marines of the Central California Veterans presented the U.S. Marines Combat Fighting Knife to the City of Atwater. Mayor Price commented that it was an honor to receive the symbol of the Marines fighting strength and contributions to America. He praised the work of the Central California Veterans and thanked Gary Brice for presenting the recognition. PRESENTATIONS: Monthly verbal report by Merced County District 3 Supervisor McDaniel Supervisor McDaniel was absent. Report by Scott Malta Scott Malta, Castle Airport Manager, clarified the use and regulation of drones in the City and around Castle Airport in his Power Point presentation. He discussed the FFA rules regarding drones, the dangers drones present to manned aircraft and some of the contributions that drones make to policing, medical applications, rescue situations, and fire incident command. COMMENTS FROM THE PUBLIC: Notice to the public was read. GLORIA PEREZ, Atwater, asked the City Council members to assist in finding a project for the LOVE ATWATER program. She stated that many volunteers are ready to serve and the resources are available; all they need is a project. The group will meet on April 28, 2018 at Ralston Park to rally before working on the project. Everyone should meet from 8:00 AM to 12 noon. JERRY MOORE, Atwater, asked about the Measure V funds and when will Atwater get some funding to address the street issues in Atwater. Mayor Price responded that the repair work in several areas has already been engineered and the costs far exceed current funds available in the Measure V apportionment. He noted that SB1 money should be coming soon and combined with the Measure V funds, the projects may finally get going. He also stated that some State funds may be available but gave no timeline for projects’ completion. PASTOR YSIDRO DELGADO, Atwater, presented a plaque to Interim City Manager Art de Werk welcoming him to the community. DANNY HERNANDEZ, Atwater, questioned the dismissal of Police Chief Joseph, and the manner in which it was done. He further requested the removal of the Interim City Manager.
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LARRY LEE, Atwater, spoke about the dismissal of Police Chief Joseph citing the historical background of past Chief’s having the benefit of multiple layers of support; none of which Police Chief Joseph received due to circumstances beyond the City’s control. ALBERT NORTHLY III, Atwater, raised questions about the possibility of Atwater adopting a policy that allows dispensaries for marijuana in the City of Atwater. He cited the revenue that could be gained from such a policy. JEANNE KNIGHT, Atwater, spoke about the dismissal of Police Chief Joseph and noted the Atwater Police Officers Association vote of no confidence that preceded the dismissal. DAVE SARGINSON, Atwater, President of the Atwater Police Officers Association, read a statement that had also been released to the media regarding the timing, the members in attendance and the vote count regarding their vote of no confidence in Police Chief Joseph. No one else came forward to speak. Mayor Price called a recess at 7:19 PM. The City Council returned to the dais and Mayor Price resumed the meeting at 7:30 PM. CONSENT CALENDAR: Agenda Item #1 under Warrants, “February 12, 2018,” was removed from the consent calendar for separate discussion and possible action. Agenda Item #5 under Agreements, “Approving Lease and Operating Agreements with Atwater Historical Society for use of Bloss House and grounds,” was removed from the consent calendar for separate discussion and possible action. Agenda Item #9 under Resolutions, “Authorizing the issuance of Wastewater Revenue Bonds; authorizing and directing execution of an Indenture of Trust, Continuing Disclosure Agreement, Escrow Agreements and a Bond Purchase Contract; authorizing the sale of bonds; approving an Official Statement; and providing other matters properly relating thereto,” was removed from the consent calendar for separate discussion and possible action. Agenda Item #13 under Informational Items Only (No Action Required), “Water Well Levels for the month of January 2018 and Water Well Levels for calendar year 2017,” was removed from the consent calendar for separate discussion. MOTION: City Council Member Creighton moved to approve the consent calendar as amended. The motion was seconded by City Council Member
City Council Meeting Action Minutes for February 12, 2018 Page 5
Raymond and the vote was: Ayes: Raymond, Creighton, Vineyard, Vierra, Price; Noes: None; Absent: None. The motion passed. WARRANTS: 1. February 12, 2018 This item was removed from the consent calendar for separate discussion and possible action. MINUTES: (City Council) 2. Regular meeting, January 8, 2018 ACTION: Approval of minutes as listed. MINUTES: (Community Development and Resources Commission) 3. Regular meeting, November 15, 2017 Special meeting, January 4, 2018
ACTION: Acceptance of minutes as listed. AGREEMENTS: 4. Approving Atwater Police Activities League Agreement and Validation of
Certificates of Liability Insurance and adopting Resolution No. 3015-18 ACTION: Adoption of Resolution No. 3015-18 approving the Lease Agreement and Validation of Certificates of Liability Insurance, in a form approved by the City Attorney, with the Atwater Police Activities League, and authorizes and directs the Interim City Manager to execute the Agreement on behalf of the City. 5. Approving Lease and Operating Agreements with the Atwater Historical Society
for use of Bloss House and grounds (Recreation Supervisor Rahn) This item was removed from the consent calendar for separate discussion and possible action. 6. Awarding a cooperative purchase agreement for purchase of one (1) new 2018
Vermeer SC60TX Stump Cutter (Interim Public Works Director Shaw) ACTION: Awards a cooperative purchase agreement, in a form approved by the City Attorney, to Vermeer RDO Equipment Company, Fowler, California, for the purchase of one (1) new 2018 Vermeer SC60TX Stump Cutter in an amount not to exceed $58,742.80; and authorizes and directs the Interim City Manager to execute the purchase agreement on behalf of the City.
City Council Meeting Action Minutes for February 12, 2018 Page 6
ORDINANCES (WAIVING SECOND READING AND ADOPTION: 7. Waiving the second reading and adopting Ordinance No. CS 992 amending
Chapter 12.32 of the Atwater Municipal Code entitled “Trees” (Interim Community Development Director Waterman)
ACTION: Waives the second reading and adopts Ordinance No. CS 992 amending Chapter 12.32 of the Atwater Municipal Code entitled “Trees”. RESOLUTIONS: 8. Accepting ownership transfer of 2007 Cargo Trailer from Merced County Fire
Department to City of Atwater Police Department (Interim Police Chief Echevarria)
ACTION: Adopts Resolution No. 3014-18 accepting ownership transfer of 2007 Wells Fargo Cargo Trailer, Model RF7162 (VIN #1W4200G2177015438) from Merced County Fire Department to the City of Atwater Police Department. 9. Authorizing the issuance of Wastewater Revenue Refunding Bonds; authorizing
and directing execution of an Indenture of Trust, Continuing Disclosure Agreement, Escrow Agreements and a Bond Purchase Contract; authorizing the sale of bonds; approving an Official Statement; and providing other matters properly relating thereto (Finance Director Deol)
This item was removed from the consent calendar for separate discussion and possible action. INFORMATIONAL ITEMS ONLY (NO ACTION REQUIRED: 10. Police Department activities and projects for the month of January, 2018 (Interim Police Chief Echevarria) 11. Police Volunteer activities for the month of January, 2018 (Police Volunteer Vineyard) 12. Fire Department activities and projects for the month of January, 2018 (CAL FIRE Battalion Chief Wight) 13. Water Well Levels for the month of January, 2018 and Water Well Levels for
calendar year 2017 (Interim Public Works Director Shaw)
This item was removed from the consent calendar for separate discussion and possible action.
City Council Meeting Action Minutes for February 12, 2018 Page 7
WARRANTS: February 12, 2018 LINDA DASH, Atwater, expressed her gratitude for the prompt response she received from the Interim City Manager regarding her questions. She further stated her concern for the amount of money being paid to the City Attorney and asserted that the financial strains on the City are too great to continue paying that much money for a City Attorney. She also lodged a complaint about cell phone use during the meeting. MOTION: City Council Member Raymond moved to approve the warrants as listed. The motion was seconded by Mayor Pro Tem Vineyard and the vote was: Ayes: Vierra, Vineyard, Creighton, Raymond, Price; Noes: None; Absent: None. The motion passed. AGREEMENTS: Approving Lease and Operating Agreements with Atwater Historical Society for use of Bloss House and grounds (Recreation Supervisor Rahn) Mayor Pro Tem Vineyard invited Atwater Historical Society (AHS) President, Greg McDaniel, to provide a brief history of the relationship between the City of Atwater and the Bloss House. GREG McDANIEL, President of the Atwater Historical Society (AHS), described that for many years the City of Atwater has maintained control of the maintenance and operations of Bloss House. However, due to recent financial shortfalls, maintenance has been infrequent. The AHS requests to take over the maintenance and operations of the Bloss House and grounds and the new Lease and Operating Agreements are beneficial to both the “Society” and the “City”. Security has also become an issue and they are planning to erect a fence around Bloss House and the grounds. Mayor Pro Tem Vineyard praised the AHS for their many accomplishments and suggested that selling sections of the fence may be a way to raise funds for the project. He prefers a longer lease like a three or five year lease and Operating Agreement. City Council Member Vierra expressed concern for the height of the fence being six feet tall and that some of the home’s fixtures have been removed and need to be replaced. She also questioned access to the public with a fence in place. GREG McDANIEL responded that access to the public will be protected and there are many possibilities to make that happen.
City Council Meeting Action Minutes for February 12, 2018 Page 8
City Council Member Raymond asked about how property taxes will be paid since the City retains ownership of the property; will the City continue to pay the property taxes. City Attorney Terpstra answered that the tax will remain unchanged, since the ownership is not being transferred. Mayor Price commented that he also would like to see a longer term on the Lease and Operating Agreements. He would be happy to make that happen if the “Society” wanted that too. City Attorney Terpstra advised that the terms of the Lease and Operating Agreements are typical for commercial property and that no contradictions exist in the current lease. City Council Member Creighton referred to the Bloss House as “our museum”. He praised AHS for their volunteer work. He also stated that he was in favor of approving the lease and continuing the great partnership. MOTION: City Council Member Creighton moved to approve the Lease Agreement and Operating Agreement, in a form approved by the City Attorney, with the Atwater Historical Society for the use of the Bloss House and grounds; and authorizes and directs the Interim City Manager to sign the Agreements on behalf of the City. The motion was seconded by City Council Member Vierra. Mayor Pro Tem Vineyard moved a subsequent motion to extend the term of the Lease under item number two (2) of the Lease document to three (3) years with an option to renew the Lease for an additional three (3) years. The motion was seconded by City Council Member Raymond and the vote was: Ayes: Creighton, Raymond, Vierra, Vineyard, Price; Noes: None; Absent: None. The motion passed. RESOLUTIONS: Authorizing the issuance of Wastewater Revenue Refunding Bonds; authorizing and directing execution of an Indenture of Trust, Continuing Disclosure Agreement, Escrow Agreements and a Bond Purchase Contract; authorizing the sale of bonds; approving an official statement, and providing other matters properly relating thereto (Finance Director Deol) Albert Pech’e, A & M Pech’e and Associates, LLC, provided a brief Power Point presentation describing how the report was prepared and the overall potential savings to the City. MOTION: Mayor Pro Tem Vineyard moved to adopt Resolution No. 3013-18 authorizing the issuance of not to exceed $18,000,000 in the principal amount of Wastewater Revenue Refunding Bonds (the “2018” Bonds) and authorizing the execution of an Indenture of Trust, Continuing Disclosure Agreement, Escrow
City Council Meeting Action Minutes for February 12, 2018 Page 9
Agreements, Bond Purchase Contract and form of the Official Statement required for the refinancing of the 2008 Wastewater Revenue Bonds. The motion was seconded by City Council Member Vierra and the vote was: Ayes: Creighton, Raymond, Vineyard, Vierra, Price; Noes: None; Absent: None. The motion passed. INFORMATIONAL ITEMS ONLY (NO ACTION REQUIRED): Water Well Levels for the month of January 2018 and Water Well Levels for calendar year 2017 (Interim Public Works Director Shaw) Mayor Pro Tem Vineyard expressed concern about watering restrictions and cautioned residents that the drought is not over. He urged everyone to continue conserving since the ground water levels have not come up. Mayor Price stated that the affects of unimpeded water flow will dramatically affect our lakes as levels will be down. He emphasized that restrictions need to remain in place. PUBLIC HEARINGS: Waiving first reading and introducing Ordinance No. CS 993 amending Chapter 2.0 of the Atwater Municipal Code entitled “City Parks,” Title 12 “Streets, Sidewalks and Public Places”, Section 12.08.010 “Prohibited Hours” (Interim Public Works Director Shaw) Interim Public Works Director Shaw gave a brief report on the need to incorporate all of the City of Atwater parks, and any future parks, into the ordinance to ensure that all parks have consistent hours of access and restriction. Mayor Price asked how the parks would be secured and would they be gated. Interim Public Works Director Shaw responded that he is working with the Police Department to secure the parks with gates and posting of signs. Mayor Pro Tem Vineyard asked about the hours by which existing programs will be permitted access, citing that some youth programs extend beyond the proposed hours. Interim Public Works Director Shaw replied that permitted programs can already be there later by Ordinance. City Council Member Creighton commented that more education to the public needs to be done about staying out of the parks past posted hours. Mayor Price opened the public hearing. No one came forward to speak and Mayor Price closed the public hearing.
City Council Meeting Action Minutes for February 12, 2018 Page 10
MOTION: Mayor Pro Tem Vineyard moved to waive the first reading and introduce Ordinance No. CS 993 amending Chapter 2.0 of the Atwater Municipal Code entitled “City Parks”, Title 12 “Streets, Sidewalks and Public Places”, Section 12.08.010 “Prohibited Hours”. The motion was seconded by Mayor Price and the vote was: Ayes: Vierra, Vineyard, Creighton, Raymond, Price; Noes: None; Absent: None. The motion passed.
Declaring the City’s intent to convey City owned real property located at 3116 Virginia Street (Interim Community Development Director Waterman) Mayor Price opened the public hearing. No one came forward to speak and Mayor Price closed the public hearing. MOTION: City Council Member Vierra moved to adopt Resolution No. 3011-18 conveying City owned real property located at 3116 Virginia Street, Assessor’s Parcel No. 150-065-010. The motion was seconded by Mayor Pro Tem Vineyard and the vote was: Ayes: Raymond, Creighton, Vineyard, Vierra, Price; Noes: None; Absent: None. The motion passed. INTERIM CITY MANAGER REPORTS/UPDATES: Verbal update regarding a Consultant for the Police Management Audit Two potential consultants have been identified; however, both declined the project. Recruitment of another potential consultant is being pursued. Verbal update regarding proposed reorganization of the Community Development and Resources Commission Staff has been investigating the dissolution of the Community Development and Resources Commission; however, there are a number of high priority projects that staff are also working on. He suggested postponing any further discussion for at least six weeks. REPORTS AND PRESENTATIONS FROM STAFF: Verbal update regarding Business Licenses (Chief Building Official Pereida) Chief Building Official Pereida reported that he discovered ten (10) business license applications had not been processed adequately and he took the necessary action to cure the problem and avoid any future recurrence. CITY COUNCIL MATTERS: City Council comments
City Council Meeting Action Minutes for February 12, 2018 Page 11
Mayor Pro Tem Vineyard commented that WinCo was recently lost in Merced due to community unrest and maybe Atwater could garner that retail business. He stated that he has received many calls regarding yard sales and citizens are unhappy that they are happening too often. He suggested a return to an annual permitting process that is fair to all. Interim City Manager de Werk responded that staff will work on the potential for pursuing WinCo, and will also look at updating the Ordinance regarding yard sales. City Council Member Creighton praised the work of the Atwater Historical Society and looks forward to many future events at the location. City Council Member Vierra encouraged all citizens to contact the members of the City Council with any questions or concerns. She urged that everyone give the Interim City Manager a chance. City Council Member Raymond had nothing to report. Mayor Price thanked Jack Mobley for his invitation to attend the Faith Bible Church and participate as a judge in the food competition. He also stated that ACE train meetings have taken place; the train currently runs from Stockton and Atwater is pursuing a route for the train to come to Merced (via an Atwater station). However, Atwater is in competition with the City of Livingston for the station location. He asked Interim Public Works Director Shaw about the progress on replacing dividing lines on Winton Way. Interim Public Works Director Shaw replied that work will begin next week and that they will be installing yellow reflective buttons for a longer lasting effect and making the lane divisions safer. Mayor Price thanked everyone for their condolences on the recent passing of his brother from cancer. CLOSED SESSION: Continuation of Closed Session was not necessary. ADJOURNMENT: The meeting adjourned at 8:55 PM in the memory of William “Bill” Garrison.
City Council Meeting Action Minutes for February 12, 2018 Page 12
_________________________________ DON HYLER III, CITY CLERK By: Lesa Rasmussen, Recording Secretary
SPECIAL MEETING CITY COUNCIL
ACTION MINUTES
February 21, 2018 OPEN SESSION: (Council Chambers) The City Council of the City of Atwater met in Open Session this date at 5:47 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. ROLL CALL: Present: City Council Members Creighton, Raymond, Mayor Pro Tem
Vineyard, Mayor Price Absent: City Council Member Vierra Staff Present: Interim City Art de Werk, Recording Secretary Rasmussen CLOSED SESSION: (Conference Room A) MOTION: Mayor Pro Tem Vineyard moved to approve the Closed Session agenda as presented. The motion was seconded by City Council Member Raymond and the vote was: Ayes: Creighton, Raymond, Vineyard, Price; Noes: None; Absent: Vierra. The motion passed. Mayor Price invited public comments on Closed Session items. No one came forward to speak at this time. Mayor Price commented, for the record, that he felt the second item “Public Employee Review – City Manager” was a bit premature since there is an open background investigation pending regarding the Interim City Manager.
CITY OF ATWATER
Minutes
City Council Special Meeting Action Minutes for February 21, 2018 Page 2
Mayor Price adjourned the meeting to Conference Room A for Closed Session at 5:49 PM. Closed Session was called to order at 5:53 PM. Conference with Legal Counsel – Potential Litigation – Government Code Section 54956.9(b): Number of cases: (1) Public Employee Review - City Manager – Government Code Section 54957(b) Closed Session adjourned at 6:38 PM. MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: Mayor Price reported that there was discussion regarding both of the closed session items, but that no action was taken. The closed session agenda was completed. ADJOURNMENT: The meeting adjourned at 6:47 PM. _________________________________ Don Hyler III, City Clerk By: Lesa Rasmussen, Recording Secretary
CITY COUNCIL
ACTION MINUTES
February 26, 2018 OPEN SESSION: (Council Chambers) The City Council of the City of Atwater met in Open Session this date at 5:01 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra, Mayor Pro Tem Vineyard, Mayor Price Absent: None Staff Present: Interim City Manager de Werk, City Attorney Terpstra,
Recording Secretary Rasmussen
CLOSED SESSION: (Conference Room A) Mayor Price invited public comments on Closed Session items. No one came forward to speak. Mayor Price adjourned the meeting to Conference Room A for Closed Session at 5:06 PM. Closed Session was called to order at 5:10 PM. Public Employee Appointment – Pursuant to Government Code Section 54957(b)(1), Interim City Attorney Conference with Legal Counsel – Potential Litigation – Pursuant to Government Code Section 54956.9: Number of cases: (1)
CITY OF ATWATER
Minutes
City Council Meeting Action Minutes for February 26, 2018 Page 2
Closed Session adjourned at 6:02 PM. REGULAR SESSION: (Council Chambers) The City Council of the City of Atwater met in Regular Session this date at 6:04 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. PLEDGE OF ALLEGIANCE TO THE FLAG: The Pledge of Allegiance was led by Mayor Price. INVOCATION: The Invocation was led by Police Chaplain McClellan. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra, Mayor Pro
Tem Vineyard, Mayor Price Absent: None Staff Present: Interim City Manager de Werk, City Attorney Terpstra, City
Clerk Hyler III, City Treasurer Heller, CAL FIRE Battalion Chief Wight, Human Resources Director Del Real, Interim Public Works Director Shaw, Recreation Supervisor Rahn, Interim Community Development Director Waterman, Finance Director Deol, Recording Secretary Rasmussen
MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: City Attorney Terpstra reported that no action was taken and that staff was given direction. The Closed Session agenda was completed. SUBSEQUENT NEED ITEMS: None. APPROVAL OF AGENDA AS POSTED OR AS AMENDED: Under “Presentations:” the report regarding changes to Atwater’s air space was moved to follow agenda item #5 “City of Atwater Organizational Restructure Project: positioning the City for financial solvency: Phase One of Two” and “Fiscal Year 2017-18 Mid Year Budget Review and resolution approving budget amendment to amend Fiscal Year 2017-18”.
City Council Meeting Action Minutes for February 26, 2018 Page 3
MOTION: City Council Member Vierra moved to approve the agenda as amended. The motion was seconded by Mayor Pro Tem Vineyard and the vote was: Ayes: Creighton, Raymond, Vierra, Vineyard, Price; Noes: None; Absent: None. The motion passed. COMMENTS FROM THE PUBLIC: JOHN RIIS CHRISTENSEN, Atwater, spoke regarding the past history of assistant police chiefs and noted that Police Chief Joseph had no assistant chiefs, nor did he have any sergeants for support. He has heard conflicting explanations as to Police Chief Joseph’s dismissal and asked if it had been a personal attack on Police Chief Joseph. RICHARD JOHNSON, Atwater, expressed anger and dismay at the actions of Police Chief Joseph. He further requested a major investigation of the entire Police Department. ANDY KROTIK, Atwater, expressed his deep sorrow and sadness on the passing of Mike Raymond. He described him as a generous and caring human being who helped many people get their first home. He extended his heartfelt condolences to City Council Member Brian Raymond and his family. He shared that he had initial concerns over the appointment of Mr. de Werk as Interim City Manager, but then he met with Mr. de Werk and stated that Mr. de Werk deserved a public apology and that he saw him as a good man whom he respects. He also said that the attacks on the Police Department and the Interim Police Chief coming from the media and on Facebook need to stop; it’s time to look forward and move the City forward. LORI JOHNSON, Atwater, spoke about an incident that occurred at an October, 2017 regular City Council meeting and made claims against the Mayor and police officers. YSIDRO DELGADO, Atwater, (through an interpreter) presented Interim Police Chief Echevarria with an award of appreciation for his service to the community and congratulated him on his role as Interim Police Chief. LARRY BERGMAN, Atwater, expressed grief and sorrow for the passing of Mike Raymond. He remembered him as a huge supporter of youth activities and youth baseball in particular. NANCY REDDING, Atwater, raised questions about the recent incident involving the U.S. Immigration (ICE) officials profiling and intimidating four adult males at the Circle K store. She further stated that the same ICE agents went to a private residence at 6:00 AM that day claiming to be “police”, not ICE, to gain entry and that this should not happen in Atwater.
City Council Meeting Action Minutes for February 26, 2018 Page 4
CAL FIRE UNIT CHIEF NANCY KOERPERIC, spoke to the issue of CAL FIRE working for the past seven months without a contract. She further acknowledged that she is working with Interim City Manager de Werk to finalize a contract and is pleased that the Interim City Manager understands both the police and fire side of operations. She cleared up misconceptions about how CAL FIRE operates stating that only fire personnel work for the City and that all buildings and equipment belong to the City of Atwater. She said she was grateful for the Measure H funds that bought the ladder fire truck. DON LAUGHTON, Atwater, explained the meaning of the term “interim” as being meant to preserve the status quo, and stated his concern that some of the changes being considered are premature and not within the jurisdiction of the Interim City Manager. LUPE DELGADO, Atwater, claimed that ICE agents invaded the community and our citizens need to feel safe. This is harming families and innocent children. She asked if ICE agents had the right to identify themselves as “police” instead of ICE agents. City Council Member Vierra asked the Interim Police Chief to address the question about ICE agents claiming to be “police”. Interim Police Chief Echevarria responded that federal agents are in fact police and that local police departments cannot prevent them from enforcing. LOUIS AVILA, Atwater, commented (through an interpreter) that he is concerned over the ICE agents in Atwater. He expressed his strong feelings that families need to be protected and that Governor Brown signed SB54 into law; he asked the City Council to do the same and asked if they were willing to become a Sanctuary City. DANNY HERNANDEZ, Atwater, addressed a member of the audience personally and was reminded that all comments must be directed to the City Council. He then questioned the timing of the no confidence vote regarding Police Chief Joseph citing newspaper articles. KEITH POLASKI, Atwater, identified the City’s financial deficit and expressed his concern for the money spent to get another Interim City Manager. He asked if the background check on Mr. de Werk had been completed and had Mr. de Werk signed the release of his 201 file. No one else came forward to speak.
City Council Meeting Action Minutes for February 26, 2018 Page 5
PRESENTATIONS: Proposed changes to controlled air space over the City of Atwater (Richard Hill, Chief Air Traffic Controller for Castle Airport) This item was moved to follow item number five “City of Atwater Organizational Restructure Project: Phase One of Two” and “Fiscal Year 2017-18 Mid Year Budget Review and resolution approving budget amendment to amend Fiscal Year 2017-18 Budget” on the agenda. CONSENT CALENDAR: Agenda Item #2 under Agreements, “Approving Agreement for Interim City Attorney services with Churchwell White, LLP,” was removed from the consent calendar for separate discussion and possible action. MOTION: Mayor Pro Tem Vineyard moved to approve the consent calendar as amended. The motion was seconded by City Council Member Creighton and the vote was: Ayes: Vierra, Vineyard, Raymond, Creighton, Price; Noes: None; Absent: None. The motion passed. WARRANTS: 1. February 26, 2018
ACTION: Approval of warrants as listed. AGREEMENTS: 2. Approving Agreement for Interim City Attorney services with Churchwell White,
LLP (Interim City Manager de Werk) This item was removed from the consent calendar for separate discussion and possible action. 3. Claim No. 2018-1 ACTION: After consideration and investigation, it is staff’s recommendation that
Claim No. 2018-1 be rejected. AGREEMENTS: Approving Agreement for Interim City Attorney services with Churchwell White, LLP (Interim City Manager de Werk) MOTION: Mayor Pro Tem Vineyard moved to retain Terpstra Henderson as Interim City Attorney and utilize an RFP process to retain attorney services. The
City Council Meeting Action Minutes for February 26, 2018 Page 6
motion was seconded by Mayor Price and the vote was: Ayes: Vineyard, Price; Noes: Raymond, Vierra, Creighton. The motion failed. MOTION: City Council Member Creighton moved to approve the Agreement for Interim City Attorney services with Churchwell White, LLP, Sacramento, California for Interim City Attorney Services; and authorizes and directs the Mayor to execute the Agreement on behalf of the City. The motion was seconded by City Council Member Vierra. City Council Member Creighton withdrew his motion and City Council member Vierra withdrew her second of the motion; the item will be considered in closed session to follow the open session. FUNDING AND BUDGET MATTERS: Treasurer’s Report for the month of January, 2018 (City Treasurer Heller) MOTION: Mayor Pro Tem Vineyard moved to approve the City Treasurer’s Report for the month of January, 2018. The motion was seconded by City Council Member Creighton and the vote was: Ayes: Raymond, Creighton, Vineyard, Vierra, Price; Noes: None; Absent: None. The motion passed. City of Atwater Organizational Restructure Project, positioning the City for financial solvency: Phase One of Two Fiscal Year 2017-18 Mid Year Budget Review and Resolution approving budget amendment to amend Fiscal Year 2017-18 Budget (Interim City Manager de Werk) MOTION: City Council Member Creighton moved to approve the City of Atwater Organizational Restructure Project for Administration, Community Development, and Finance Department, and to adopt Resolution No. 3012-18 approving Budget Amendment No. 7 amending the Fiscal Year 2017-18 Budget; and to authorize and direct the Interim City Manager to take the necessary actions to implement Phase One of the City of Atwater Organizational Restructure Project; and adopts Resolution No. 3016-18 amending the City of Atwater Classification Plan and adopting Salary Schedule B-18, effective March 1, 2018. The motion was seconded by City Council Member Raymond and the vote was: Ayes: Creighton, Raymond, Vierra; Noes: Vineyard, Price; Absent: None. The motion passed. Mayor Price called a recess at 8:48 PM. The City Council returned to the dais and Mayor Price resumed the metting at 8:58 PM.
City Council Meeting Action Minutes for February 26, 2018 Page 7
PRESENTATIONS: Proposed changes to controlled air space over the City of Atwater (Richard Hill, Chief Air Traffic Controller at Castle Airport) Castle Airport Manager, Scott Malta, advised that Richard Hill was not available to attend so he will do the presentation. He described the proposed changes by the FAA to airspace and the control tower at Castle Airport and an area of approximately 4.6 miles around Castle Airport. This proposal will take away the majority of Atwater’s protected air space; the decision could come about May of 2018. Mr. Malta requested that the City Council submit a letter of opposition to the FAA proposed changes and authorize the Mayor to execute the letter on behalf of the City. MOTION: City Council Member Raymond moved to authorize and direct the Mayor to execute a letter of opposition, regarding the Federal Aviation Administration’s proposed changes to the airspace and control tower at Castle Airport and the surrounding area. The motion was seconded by Mayor Pro Tem Vineyard and the vote was: Ayes: Vineyard, Vierra, Raymond, Creighton, Price; Noes: None; Absent: None. The motion passed. REPORTS AND PRESENTATIONS FROM STAFF: Verbal report regarding telecommunications outages at Public Works Department (Interim Public Works Director Shaw) Interim Public Works Director reported that calls to the Public Works Department are not being ignored but rather the telephones are inoperable and attempts are being made to correct the problems. He offered a cell phone number for direct contact to Public Works by using 209-357-6372 which will be immediately redirected to a cell phone where messages can be retrieved. CITY COUNCIL MATTERS: City Council comments CITY COUNCIL MEMBER RAYMOND, expressed his gratitude for each person up on the dais and many in the community who have been very supportive regarding the recent loss of his father. CITY COUNCIL MEMBER VIERRA, had nothing to report. CITY COUNCIL MEMBER CREIGHTON, had nothing to report. MAYOR PRO TEM VINEYARD, reminded the public about the Spring Clean Up Day, the date and time of operation. He also commented on the continuing problem of yard sales in the community. He requested that the cannabis
City Council Meeting Action Minutes for February 26, 2018 Page 8
ordinance be brought back for more consideration and possible changes. Reported that he spoke with a constituent who brought the idea of a micro hospital coming to Atwater, and he requested follow up on that item. He also asked for a full comparison of reinstating a City operated Fire Department and using CAL FIRE. MAYOR PRICE, Reported that during the weekend the community suffered another loss, Leslie Kim Loeser “Kimmie”, wife to Skippy Loeser of the VFW Hall lost her life in a traffic accident. Our chaplain Jim McClellan also lost his father. He shared his deepest sympathy to the entire Raymond family and especially Brian Raymond regarding the loss of his father. CITY ATTORNEY TERPSTRA, Suggested that the City Council offer the position of Interim City Attorney or full time City Attorney to Churchwell White and that he will make this a smooth transition for the City. MOTION: Mayor Pro Tem Vineyard moved to approve the Agreement for Interim City Attorney services with Churchwell White, LLP, Sacramento, California and authorizes and directs the Mayor to execute the Agreement on behalf of the City. The motion was seconded by Council Member Vierra and the vote was: Ayes: Raymond, Creighton, Vineyard, Vierra, Price; Noes: None; Absent: None. The motion passed. CLOSED SESSION: Continuation of Closed Session was not necessary. ADJOURNMENT: The meeting adjourned at 9:23 PM in the memory of Kimmie, Jim McClellan’s father, Mike Raymond and all those who have lost someone dear.
___________________________________ DON HYLER III, CITY CLERK By: Lesa Rasmussen, Recording Secretary
CITY COUNCIL OF THE
CITY OF ATWATER
RESOLUTION NO. 3021-18
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER APPROVING BUDGET AMENDMENT NO. 10 AMENDING 2017-18 FISCAL YEAR BUDGET REGARDING FY 2017-2018 GAS TAX FUND (RSTP) FRUITLAND AVENUE RECONSTRUCTION PROJECT AND STORM DRAINAGE PUMP STATION
WHEREAS, the City Council of the City of Atwater adopted Resolution No. 2958-17 adopting the 2017-18 Fiscal Year Budget on August 24, 2017; and
WHEREAS, from time to time, and in order to operate effectively, it is necessary to amend said budget. WHEREAS, the revenue for Measure V-Sales Tax was booked during the Fiscal Year Budget 2017-2018. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Atwater does hereby approve Budget Amendment No. 10 to the 2017-18 Fiscal Year Budget as follows: SECTION 1: Establishing budget in Gas Tax Fund (RSTP) for Fiscal Year 2017-2018.
BE IT FURTHER RESOLVED that a copy of this resolution appends to the original budget document that is available in the Finance Department and the City Clerk/Board Clerk’s office. The foregoing resolution is hereby adopted this 26th day of March, 2018. AYES: NOES: ABSENT:
APPROVED: ________________________________ JAMES E. PRICE MAYOR ATTEST: ______________________________ DON HYLER III CITY CLERK
CITY COUNCIL OF THE
CITY OF ATWATER
RESOLUTION NO. 3022-18
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER APPROVING BUDGET AMENDMENT NO. 11 AMENDING 2017-18 FISCAL YEAR BUDGET REGARDING MEASURE V TRANSFER ADJUSTMENT BASED ON MOST RECENT BUDGET ANALYSIS
WHEREAS, the City Council of the City of Atwater adopted Resolution No. 2958-17 adopting the 2017-18 Fiscal Year Budget on August 24, 2017; and
WHEREAS, from time to time, and in order to operate effectively, it is necessary to amend said budget. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Atwater does hereby approve Budget Amendment No. 11 to the 2017-18 Fiscal Year Budget as follows: SECTION 1: Establishing required 20% set-a-side budget in Measure V Fund for Fiscal Year 2017-2018 based on estimated yearly allocation figures.
Establish Budget (Revenue)
0008.0000.1031 Sales & Use Tax $ 124,500
Decrease Budget (Revenue)
0007.0000.1031 Sales & Use Tax ($117,000)
Establish Budget (Expense)
0007.9095.XXXX Transfer to Measure V (FY 16-17) 20% Alternative Modes
$24,397.06
Establish Budget (Revenue)
0008.0000.XXXX Transfer from Measure V Fund $24,397.06
BE IT FURTHER RESOLVED that a copy of this resolution appends to the original budget document that is available in the Finance Department and the City Clerk/Board Clerk’s office. The foregoing resolution is hereby adopted this 26th day of March, 2018.
If City Council approves the donation of the vehicles, staff would move forward with title changes and remove the vehicles from the City of Atwater’s insurance coverage.
Approved by: _______________________________________________ Armando Echevarria, Interim Police Chief Prepared by: _______________________________________________ Darin Jantz, Police Officer / Executive Director City Manager: ______________________________________________ Art de Werk, Interim City Manager Attachments: None.
RESOLUTION NO. 3023-18
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER DECLARING A 1995 CHALLENGER MOTORHOME AND A 2002 FORD EXPLORER XLS AS SURPLUS PROPERTY AND APPROVING TRANSFER OF OWNERSHIP OF THE TWO VEHICLES FROM THE CITY OF ATWATER TO THE ATWATER POLICE ACTIVITIES LEAGUE PROGRAM
WHEREAS, the City of Atwater (“City”) owns a 1995 Challenger motorhome (VIN# 1GBJP37N3S3330353), and a 2002 Ford Explorer XLS Sport Utility Vehicle (VIN # 1FMZU72E72ZA36744); and WHEREAS, the City is listed as the registered owner of the 1995 Challenger motorhome (California Exempt plate number 1317918) and the 2002 Ford Explorer XLS (California Exempt plate number 1144492); and WHEREAS, the City has determined the 1995 Challenger motorhome and 2002 Ford Explorer XLS are surplus vehicles and are no longer needed for City use; and WHEREAS, the City intends to transfer ownership of the two vehicles to the Atwater Police Activities League Program, a 501(c)(3) nonprofit corporation registered with the California Secretary of State’s office; and WHEREAS, the Atwater Police Activities League Program will assume all associated costs for the registration, licensing, insurance, operation, and maintenance of the vehicles. NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Atwater does hereby declare the 1995 Challenger motorhome and 2002 Ford Explorer XLS as surplus vehicles. BE IT FURTHER RESOLVED, that the City Council of the City of Atwater hereby approves the transfer of the 1995 Challenger motorhome and 2002 Ford
CITY COUNCIL OF THE
CITY OF ATWATER
Minutes
Explorer XLS surplus vehicles to the Atwater Police Activities League Program, and further authorizes the City Manager to take all steps necessary to accomplish the transfer. The foregoing resolution is hereby adopted this 26th day of March, 2018. AYES: NOES: ABSENT: APPROVED: _____________________________ JAMES E. PRICE, MAYOR ATTEST: _________________________ DON HYLER III, CITY CLERK
There is no staff report or other information
for agenda Item 9.
A hand out will be presented by L. Deol,
Finance Director
{CW053862.1}
CITY COUNCIL OF THE
CITY OF ATWATER
ORDINANCE NO. CS 994
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATWATER AMENDING TITLE 13, “PUBLIC SERVICES”, CHAPTER 13.13 “WATER CONSERVATION PROGRAM”, SUBSECTION 13.13.030 “PROHIBITED USES-MANDATORY” OF THE ATWATER MUNICIPAL CODE
WHEREAS, in January 2014, a Drought State of Emergency was declared by Governor Jerry Brown, and WHEREAS, the City of Atwater declared the existence of a local drought emergency and adopted Urgency Ordinance No. CS 966 amending the City’s current water conservation program; and WHEREAS, by amending the current Municipal Code to allow for the construction and maintenance of new swimming pools it has been determined that it will not violate the intent of the previously adopted Water Conservation Program. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ATWATER AS FOLLOWS: SECTION 1: Chapter 13.13 “Water Conservation Program”, Section 13.13.030(A), Subsection 11 of the Atwater Municipal Code is hereby amended to read in full as follows: 11. Initial filling of new swimming pools or otherwise of the full capacity of a pool over 2,500
gallons is allowed with permit prohibited. Draining and refilling pools are allowed for maintenance and cleaning with permit.
SECTION 2. SEVERABILITY: If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The Atwater City Council declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the ordinance be enforced. SECTION 3. EFFECTIVE DATE: This ordinance is effective immediately upon adoption or as otherwise established by state law.
Ordinance CS 994 Water Conservation Program Page 2 Page 2
{CW053862.1}
ADOPTED: AYES: NOES: ABSENT: APPROVED: __________________________________ JAMES E. PRICE, MAYOR ATTEST: ___________________________________ DON HYLER III, CITY CLERK
I
¡ucló
sCOUNCIL AGENDA REPORT Jim Price, Mayor
Jim Vineyard Paul CreightonBrian Raymond Cindy Vierra
CITY COUNCIL
MEETING DATE:
TO:
FROM:
PREPARED BY:
SUBJECT:
March 26,2018
Mayor and City Council
Art de Werk, lnterim City Manager
Julie Krebs, Administrative Analyst
Ratifying Employment Agreements with the DeputyManager/Finance Director and Deputy Gity Manager
C¡ty
1
2
3
RECOMMENDED COUNCIL AGTION :
It is recommended that City Council
Ratify the Employment Agreement, in a form approved by the lnterim City Attorney,for Deputy City Manager/Finance Director Lakhwinder Deol;
Ratify the Employment Agreement, in a form approved by the lnterim City Attorney,for Deputy City Manager Lori Waterman; and
Authorize and direct the lnterim City Manager to execute the Agreements on behalfof the City.
BACKGROUND:
At their regular City Council meeting of February 26, 2018 the City Council adoptedResolution No. 3016-18 amending the City of Atwater Classification Plan and adoptingSalary Schedule B-18, effective March 1,2018. The amendmentto the Classification Planand Salary Schedule included the classifications of Deputy City Manager/Finance Directorand Deputy City Manager.
II. ANALYSIS:
From the City of Atwater Organizational Restructure Project presented to City Council onFebruary 26, 2018 the deputy city manager positions were designed to back-up the city
manager position and to provide much-needed continuity ín the office of the city manager.ln addition, the deputy city manager positions will provide the critically-needed strength andauthority over budgetary matters.
The City Manager has negotiated employment agreements with Ms. Deol for the DeputyCity Manager/Finance Director position and with Ms. Waterman for the Deputy CityManager position. The employment agreements are being presented to the City Councilpursuant to California Government Code Sections 53260-53264 Employment Contracts,which require the public agency to ratify all contracts of employment with chief executiveofficers ín an open session of the governing body.
III. FISCAL IMPACTS:
On February 26, 2018, the City Council also adopted Resolution No. 3012-18 approvingBudget Amendment No. 7 amending Fiscal Year 2017-18 Budget to include the costs forthe deputy city manager positions.
IV. LEGAL REVIEW:
The employment agreements have been reviewed by the lnterim City Attorney
V. POLICY ALTERNATIVES:
Staff is not recommending any policy alternatives as there are no positive alternativesthat will produce the required results of creating an organization that has the strength,structure and resources needed to get the City through the next several years. To meetthe priorities of financial survival, organizational continuity and functionality, it isimperative the City Council approve staff's recommendation herein.
VI. INTERDEPARTMENTALCOORDINATION:
Key members of the City's existing management team collaborated on the AtwaterOrganizational Restructure Project over several meetings on the nature and contents ofwhat should be included. Ratification of the employment agreements is the next step inmoving the organization fonryard.
VII. PUBLIC PARTICIPATION:
Pursuant to California Government Code Sections 53260-53264 Article 3.5. EmploymentContracts, the purpose of ratifying employment agreements in an open session of thegoverning body is to provide the public the opportunity to provide comments prior toratification by the City Council.
VIII. STEPS FOLLOW¡NG APPROVAL:
Upon ratification of the employment agreements by the City Council, the City Manager,lnterim City Attorney, City Clerk, and the employees shall also execute the agreements
Prepared by
Approved by:
Attachments
Art de Werk, lnterim City Manager
1. Employment Agreements
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 1 of 12
DEPUTY CITY MANAGER/FINANCE DIRECTOR
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered
into as of the 12th
day of March 2018, (“Effective Date”), by and between the CITY OF
ATWATER (“City”) and LAKHWINDER DEOL (“Employee”). The City and
Employee shall be referred to herein individually as a “Party” and collectively as
“Parties.” There are no other parties to this Agreement.
RECITALS
A. Employee has been employed by the City since August 14, 2014.
B. The Parties entered into a Director of Finance Employment Agreement
dated July 30, 2015.
C. The City Manager is authorized to negotiate and enter into
employment agreements with department heads pursuant to Atwater
Municipal Code (“Municipal Code”) section 2.04.050.
D. The Parties have agreed to employ Employee as the Deputy City
Manager and Director of Finance (“Deputy City Manager/Finance
Director”) for the City.
E. The Parties agree that this Agreement shall be the sole agreement
between the Parties regarding the employment of Employee as Deputy
City Manager/Finance Director.
F. The Parties’ desire to execute this Agreement pursuant to the authority
of, and subject to, the provisions of California Government Code
(“Government Code”) section 53260 et seq.
NOW, THEREFORE, in consideration of the mutual covenants entered into
between the Parties, and in consideration of the benefits that accrue to each, it is agreed
as follows:
AGREEMENT
Section 1. Recitals. The recitals set forth above (“Recitals”) are incorporated herein
by this reference and made a part of this Agreement. In the event of any inconsistencies
between Recitals and Section 1 through 10 of this Agreement, Sections 1 through 10 will
prevail.
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 2 of 12
Section 2. Appointment of Deputy City Manager/Finance Director, Duties,
and Term.
Section 2.1. Appointment of Deputy City Manager/Finance Director and
Duties. The City Manager hereby appoints Employee to the position of Deputy City
Manager/Finance Director, in and for the City, to perform the function and duties of the
Deputy City Manager/Finance Director under the direction of the City Manager, as the
City Manager is authorized to oversee City employees under Section 2.04.050 of the
Municipal Code. Employee accepts such appointment and employment pursuant to the
terms of this Agreement. Employee shall further perform the functions and duties
specified in the job description, attached hereto as Exhibit A, under the laws of the State
of California, the City’s Municipal Code, Ordinances, and Resolutions, and such other
duties and functions as the City Manager may from time-to-time assign.
Section 2.2. Secondary Employment/Conflict of Interest. Employee agrees to
devote all of her productive time, ability, and attention to the City’s business to the extent
necessary to perform her duties and responsibilities in a manner satisfactory to City.
During the Term, as defined in Section 2.5 of this Agreement, Employee shall not hold
secondary employment or engage in activities which conflict with, or present the
appearance or possibility of conflicting with, City’s business interests. As such,
Employee agrees that Employee will notify the City Manager in writing if Employee
accepts secondary employment, so City may determine whether there is a conflict or
potential conflict with the satisfactory performance of Employee’s duties and/or the best
interest of the City. Employee has the right to volunteer for such nonprofit organizations
as she may see fit and further provided that such volunteer services shall not interfere
with her duties as Deputy City Manager/Finance Director.
Section 2.3. Exempt Employee. The general business hours for City employees
are Monday through Thursday, utilizing a compressed work schedule of 36 hours per
week. However, it is recognized by the Parties that Employee is an exempt employee for
purposes of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). Employee
shall not receive overtime or extra compensation for hours worked outside of the City’s
general business hours, which are necessary to fulfill the duties of the Deputy City
Manager/Finance Director position, unless otherwise provided in this Agreement.
Section 2.4. Duties/Schedule. The Deputy City Manager/Finance Director’s
daily and weekly work schedule shall vary in accordance with the work required to be
performed. The Deputy City Manager/Finance Director position may include frequent
attendance at evening meetings and frequent irregular hours as necessary to meet
deadlines and achieve objectives. The City Manager recognize that the Deputy City
Manager/Finance Director must devote a great deal of her time outside normal office
hours to business of the City and, to that end, will be allowed to take Administrative
Leave, as defined in Section 5.3 of this Agreement, as she shall deem appropriate during
said normal office hours, subject to notification and approval of the City Manager .
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 3 of 12
The Deputy City Manager/Finance Director’s initial duties shall be as shown in
the job description attached as Exhibit A. Employee shall perform Employee’s duties
under this Agreement pursuant to the laws of the State of California and applicable City
municipal codes and resolutions. Employee understands that Employee’s duties may be
amended from time to time by the City, as necessary to meet the City’s needs. No
modification or change in Employee’s responsibilities, duties or position shall otherwise
change or revoke any other provision of this Agreement.
Unless otherwise specified in this Agreement, Employee shall be bound by all the
policies, rules and regulations of City now in force and effect applicable to Employee’s
position, and by all such other applicable policies, rules and regulations as may be
hereafter implemented and called to her notice and will faithfully observe and abide by
the same. No such policy, rule or regulation shall alter, modify or revoke employee’s
status as an at-will employee or any other provision of this Employment Agreement.
Section 3. At-Will Employment.
Section 3.1. At-Will. Employee is an at-will employee serving at the pleasure of
the City Manager, as provided in Government Code section 36506 and Municipal Code
section 2.09.040. Accordingly, the City Manager may terminate Employee’s
employment at any time, with or without cause. Only if Employee is terminated by City
without Good Cause, as defined in Section 5.4 of this Agreement, shall Employee be
entitled to a Severance, as defined in Section 5.3 of this Agreement.
Section 3.2. No Property Right in Employment. Employee understands and
agrees that the terms of her employment are governed only by this Agreement and that no
right of employment for any specific term is created by this Agreement. Employee further
understands that based on her “at-will” employment status, she acquires no property
interest in her employment by virtue of this Agreement, and that she is not entitled to due
process for any disciplinary actions under the City’s personnel policies and rules,
including termination.
Section 4. Compensation and Benefits
Section 4.1 Deputy City Manager/Finance Director Salary. Beginning
March 8, 2018, for services performed as Deputy City Manager/Finance Director,
Employee shall be compensated at Step 1 of Range 339 of the Salary Schedule (currently
in the amount of $10,617.01 per month, less any reductions for furlough). Employee
shall be subject to the requirement of two (2) furlough days per month until such time as
the furlough requirement is modified for similarly situated City employees. Employee’s
performance shall be reviewed annually pursuant to the City’s Performance Evaluation
Policy and she shall be eligible to move to Step 2 within 1 year following the Effective
Date, and to have her salary adjusted annually thereafter as set forth in the Salary
Schedule, as determined by the City Manager.
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Deputy City Manager/Finance Director
Employment Agreement
Page 4 of 12
Section 4.2. Review and Evaluation. The City Manager agrees to review and
evaluate Employee’s performance of her duties as Deputy City Manager/Finance
Director, pursuant to the terms of this Agreement (“Review and Evaluation”), on not less
than an annual basis and to provide Employee with a written performance review. The
annual Review and Evaluation shall be conducted on or about March 8th of each year, or
at the City Manager’s discretion.
Section 4.3. Automobile. For services performed as Deputy City
Manager/Finance Director, Employee shall have the option to either use a City vehicle, if
available, or to use her personal vehicle and receive reimbursement for mileage pursuant
to the City’s Travel Policy.
Section 4.4. Administrative Leave. It is recognized that Employee must devote
a great deal of time outside the normal office hours to City business as Deputy City
Manager/Finance Director. To that end, Employee shall receive eighty (80) hours of
administrative leave (“Administrative Leave”) per calendar year (prorated from the
Effective Date), which may be cashed out annually if budgeted funds are available to
permit the cash out. Administrative Leave is only available for use or cash out in the year
in which it is given and shall not be carried over. Any unused Administrative Leave
expires on December 31 of each calendar year and shall not be carried over from year to
year.
Section 4.5. Sick Leave and Vacation.
4.5.1. Sick Leave. Deputy City Manager/Finance Director shall accrue four (4)
hours of sick leave over 24 pay periods. Deputy City Manager/Finance Director
shall be permitted to cash out up to ninety-six (96) hours of accrued and unused
sick leave annually if budgeted funds are available to permit the cash out. There is
no cap on sick leave accruals. If employee’s employment with the City
terminates, sick leave shall be paid out pursuant to the City’s Paid Sick Leave
Policy.
4.5.2. Vacation Leave. Employee shall accrue three and one-third (3.33) hours of
vacation leave per pay period. Employee may cash out up to eighty (80) hours of
accrued, unused vacation annually if budgeted funds are available to permit the
cash out. Vacation accrual rate shall increase based on years of service with the
City consistent with the Mid Managers Group, or Department Director Group (if
established), whichever provides the greater benefit to Employee. Accruals are
capped at twice the annual accrual amount.
Section 4.6. Holidays. Employee shall be subject to the provisions governing
Holidays as are set forth in the City’s Personnel Rules and Regulations.
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Deputy City Manager/Finance Director
Employment Agreement
Page 5 of 12
Section 4.7. Medical, Dental and Vision.
4.7.1 Medical, Dental and Vision During Employment. During the term
of this
Agreement, or any extension hereof, the City shall pay the
premiums for Employee and her qualified dependents’ medical,
dental and vision insurance on the same terms and conditions as
are offered to other similarly situated City employees, consistent
with the tier system utilized for the Mid Managers Group, or
Department Director Group (if established), whichever provides
the greater benefit to Employee. Employee shall be responsible for
the payment of any premiums not paid for by the City and all
deductibles, co-payments and disallowed costs. Should Employee
elect not to participate in the City’s medical plan, or elect to enroll
in medical coverage through her spouse, she shall be eligible for
in-lieu payments in the amount set by City Council resolution.
4.7.2 Medical Upon Retirement. Upon Employee’s retirement from the
City, the City shall continue to pay the premiums for Employee
and her qualified dependents’ medical insurance on the same terms
and conditions as are offered to other similarly situated City
annuitants, consistent with the tier system utilized for the Mid
Managers Group, or Department Director Group (if established),
whichever provides the greater benefit to Employee at the time of
Employee’s retirement. Employee shall be responsible for the
payment of any premiums not paid for by the City and all
deductibles, co-payments and disallowed costs. When Employee
and her qualified dependents become eligible for Medicare, the
City’s medical insurance plan shall become secondary insurance
and the City’s obligation to pay premiums as set forth in this
Section shall be reduced accordingly.
4.7.3 Dental and Vision Upon Retirement. Upon Employee’s retirement
from the City, Employee and eligible dependents may elect to
remain on the City’s dental and/or vision coverage plans for the
period established by COBRA, but Employee will be responsible
for paying the full amount of the monthly premium amounts for
Employee and eligible dependents, which are established by the
City’s provider, as well as all deductibles, co-payments, and
disallowed costs. Said amounts are subject to change annually.
The City shall bill Employee on a monthly basis for the full
amount of the monthly premiums. Non-payment will result in
disenrollment of Employee and eligible dependents without the
option to re-enroll. Upon expiration of the COBRA period,
coverage for Employee and dependents shall be discontinued.
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 6 of 12
Section 4.8. Retirement. The City participates in CalPERS. CalPERS will
make the determination if Employee is considered a “Classic” or “New Member” (as
defined under Government Code section 7522.04), and Employee shall contribute based
on the enrolled tier. The City shall pay 100% of the employer contribution. Employee
shall pay 100% of the employee contribution.
Section 4.9. Life Insurance. During the term of this Agreement, or any
extension hereof, the City shall pay 100% of all premiums to cover the life insurance
policy currently in place for the benefit of Employee.
Section 4.10. Disability. During the term of this Agreement, or any extension
hereof, the City shall pay 100% of all premiums to cover both short term and long-term
disability benefits for the benefit of Employee.
Section 4.11. Unemployment. During the term of this Agreement, or any
extension hereof, the City shall contribute to the Unemployment Insurance Program for
the benefit of Employee, at no cost to Employee.
Section 4.12. Changes in Fringe Benefits or Working Conditions. Except as
otherwise provided herein, all provisions of the Rules and Regulations of the City relating
to changes to fringe benefits and/or working conditions as they now exist, or hereinafter
may be amended, shall also apply to Employee as they would to other Department
Directors, in addition to the benefits enumerated for the benefit of Employee as herein
provided.
Section 5. Termination of Employment and Severance.
Section 5.1. Voluntary Resignation. Employee may resign at any time and
agrees to give the City at least thirty (30) days advance written notice of the effective date
of Employee’s resignation, unless the Parties otherwise agree in writing. If Employee
retires from full-time public service with the City, Employee shall provide three (3)
months advance written notice. During the notice period, all rights and obligations of the
Parties under this Agreement shall remain in full force and effect. Promptly after the
effective date of resignation or retirement, the City shall pay to Employee all salary and
other compensation due and owing under this Agreement. In the event of voluntary
resignation or retirement, Employee shall not be entitled to Severance, as set forth in
Section 5.3 of this Agreement.
Section 5.2. Termination by City Manager. The City Manager may terminate
this Agreement and remove Employee from her position as Deputy City
Manager/Finance Director at any time with or without cause and with or without notice.
If Employee’s termination is based on charges of misconduct that publicly stigmatizes
Employee’s reputation or impairs her ability to earn a living, or might damage her
standing in a community, Employee may, within five (5) business days of the City
Manager’s notice to Employee of his or her intent to terminate Employee’s employment,
make a written request for a "name-clearing" hearing (as described in Lubey v. City and
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 7 of 12
County of San Francisco (1979) 98 Cal.App.3d 340 and its progeny) before the City
Council in closed session. The "name-clearing" hearing is solely to provide Employee the
opportunity to clear her name. The City Council may determine whether the allegations
contained in the notice of termination are supported. If the City Council determines that
the allegations are not supported, a decision shall be issued to reflect that Employee's
termination was without fault. This decision will not, however, require that Employee be
reinstated to her position. In the event Employee does not request a "name-clearing"
hearing before the City Council, the City Manager’s decision to terminate will be
effective by the close of business on the fifth (5th) day after the City Manager provided
notice to Employee of his or her intent to terminate her employment.
Section 5.3. Termination Without Good Cause. In the event the City
terminates Employee’s employment and this Agreement without Good Cause, as defined
in Section 5.4, below, the Employee shall be given the option to either:
(a) return to her previous position of Finance Director, where her compensation
will be based on Step 6 or Range 335b of the Salary Schedule for Finance
Director. Under this option, the Employment Agreement entitled “Director of
Finance Employment Agreement”, dated July 30, 2015, shall be reinstated; or
(b) terminate her employment with the City, and she shall receive a sum equal to
four (4) month’s Base Salary (“Severance”). Such Severance is subject to the
restrictions of Government Code section 53260. Severance shall be paid in
the same manner as to other similarly situated City employees unless
otherwise agreed to by the City and Employee. In the event the City
terminates this Agreement and Employee’s employment, Employee shall be
entitled to continued medical and dental benefits at her own cost, pursuant to
the provisions of the federal Consolidated Omnibus Budget Reconciliation
Act (“COBRA”).
Section 5.4. Termination for Good Cause. The City may at any time
immediately terminate this Agreement and Employee’s employment for Good Cause, as
defined below. If Employee is terminated for Good Cause, the City shall not be required
to pay any Severance under this Agreement, and the City shall have no obligation to
Employee beyond those benefits accrued as of Employee’s last day of employment and
those the City is obligated to provide under federal or state law.
“Good Cause” for purposes of this Agreement, means a fair and honest cause or reason
for termination. These reasons include, but are not limited to:
1. Conviction of a felony;
2. Disclosing confidential information of the City;
3. Gross carelessness or misconduct;
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 8 of 12
4. Unjustifiable and willful neglect of the duties described in this
Agreement;
5. Mismanagement;
6. Dishonesty;
7. Failure to perform Employee’s duties to the standard set by the
City (refer to job description in Exhibit A);
8. Any conduct which violates the applicable provisions of the City’s
personnel policies, rules or regulations for which a City employee
may be terminated;
9. Repeated and protracted unexcused absences from the Deputy City
Manager/Finance Director’s office and duties;
10. Willful destruction or misuse of City property;
11. Conduct that in any way has a direct, substantial, and adverse
effect on the City’s reputation whether during or outside business
hours;
12. Willful violation of federal, state, or City discrimination laws;
13. Being under the influence of alcohol or narcotics (for which the
employee does not have a valid medical prescription) while on
duty;
14. Substance abuse which adversely affects performance of
Employee’s duties as Deputy City Manager/Finance Director;
15. Discourteous treatment of the public or other employees;
16. Refusal to take or subscribe any oath or affirmation which is
required by law;
17. Employee’s disability resulting in his or her inability to perform
the essential functions of his/her job, which the City is unable to
reasonably accommodate without placing an undue burden on City
business operations; or
18. Engaging in other employment or activities which conflict with, or
present the appearance or possibility of conflicting with, City’s
legitimate business interests
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 9 of 12
The City Manager may also place Employee on paid or unpaid investigatory leave
during the Term of this Agreement.
Section 6. Notices. Any notice or communication required hereunder between the
City and Employee must be in writing and may be given either personally, by facsimile
(with original forwarded by regular U.S. Mail), by registered or certified mail (return
receipt requested), or by Federal Express, UPS, or other similar couriers providing
overnight delivery. If personally delivered, a notice shall be deemed to have been given
when delivered to the Party to whom it is addressed. If given by facsimile transmission, a
notice or communication shall be deemed to have been given and received upon actual
physical receipt of the entire document by the receiving Party’s facsimile machine.
Notices transmitted by facsimile after 5:00 p.m. on a normal business day, or on a
Saturday, Sunday or holiday shall be deemed to have been given and received on the next
normal business day. If given by registered or certified mail, such notice or
communication shall be deemed to have been given and received on the first to occur of
(a) actual receipt by any of the addressees designated below as the Party to whom notices
are to be sent, or (b) five (5) days after a registered or certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in the United States mail.
If given by Federal Express or similar courier, a notice or communication shall be
deemed to have been given and received on the date delivered, as shown on a receipt
issued by the courier. Any Party hereto may at any time, by giving ten (10) days written
notice to the other Party hereto, designate any other address in substitution of the address
to which such notice or communication shall be given. Such notices or communications
shall be given to the Parties at their addresses set forth below:
If to Employee: City of Atwater
Attn: Lakhwinder Deol
750 Bellevue Road
Atwater, California 95301
CC: Employee’s home address on file
If to the City: City of Atwater
Attn: City Manager
750 Bellevue Road
Atwater, California 95301
and Churchwell White, LLP
ATTN: Douglas L. White
1414 K Street, 3rd
Floor
Sacramento, CA 95814
Section 7. Indemnification. The City shall defend, hold harmless, and indemnify
Employee against any tort, personnel, civil rights, or professional liability claim or
demand or other legal action, whether groundless or otherwise, arising out of an alleged
act or omission occurring in the performance of Employee’s duties as Finance Officer in
accordance with the California Government Claims Act (Government Code section 810
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 10 of 12
et seq.) and shall provide a defense to Employee in accordance with Government Code
sections 995-996.6. The City may decline to defend or indemnify Employee only as
permitted by the Government Code. City may compromise and settle any such claim or
suit and pay the amount of any resulting settlement or judgment; provided, however, the
City’s duty to defend and indemnify Employee shall be contingent upon Employee’s
good faith cooperation with such defense. In the event the City provides paid leave to the
Employee pending an investigation or funds for a legal criminal defense pursuant to this
Section, Employee shall reimburse the City for the amount of such paid leave or cost of
the legal criminal defense, if Employee is convicted of a crime involving an abuse of
office or position, as provided by Government Code sections 53243-53243.1. Also, if this
Agreement is terminated, any cash settlement related to the termination that Employee
may receive from the City shall be fully reimbursed to the City if Employee is convicted
of a crime involving an abuse of his or her office or position as provided in Government
Code section 53243.2-53243.4
Section 8. Bonding. The City shall bear the full cost of any fidelity or other bonds
required of Employee under any law or ordinance.
Section 9. Attorneys’ Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret any of the provisions of this
Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, which may
be set by the court in the same action or in a separate action brought for that purpose, in
addition to any other relief to which that Party may be entitled.
Section 10. General Provisions
10.1. Modification of Agreement. This Agreement may be supplemented,
amended, or modified only by a writing signed by the City and Employee.
10.2. Entire Agreement. This Agreement constitutes the final, complete, and
exclusive statement of the terms of the agreement between the Parties and supersedes all
other prior or contemporaneous oral or written understandings and agreements of the
Parties. No Party has been induced to enter into this Agreement by, nor is any Party
relying on, any representation or warranty except those expressly set forth in this
Agreement.
10.3. Severability of Agreement. If a court or an arbitrator of competent
jurisdiction holds any section of this Agreement to be illegal, unenforceable, or invalid
for any reason, the validity and enforceability of the remaining sections of this
Agreement shall not be affected.
10.4. Authority. All Parties to this Agreement warrant and represent that they
have the power and authority to enter into this Agreement and the names, titles, and
capacities herein stated on behalf of any entities, persons, states, or firms represented or
purported to be represented by such entities, persons, states, or firms and that all former
requirements necessary or required by state or federal law in order to enter into this
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 11 of 12
Agreement had been fully complied with. Further, by entering into this Agreement,
neither Party hereto shall have breached the terms or conditions of any other contract or
agreement to which such Party is obligated, which such breach would have a material
effect hereon.
10.5. Headings. The headings in this Agreement are included for convenience
only, and neither affect the construction or interpretation of any section in this Agreement
nor affect any of the rights or obligations of the Parties to this Agreement.
10.6. Necessary Acts and Further Assurances. The Parties shall, at their own
cost and expense, execute and deliver such further documents and instruments and shall
take such other actions as may be reasonably required or appropriate to evidence or carry
out the intent and purposes of this Agreement.
10.7. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
10.8. Waiver. No covenant, term, or condition, or the breach thereof, shall be
deemed waived, except by written consent of the Party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term, or condition shall not be
deemed to be a waiver of any preceding or succeeding breach of the same or any other
covenant, term, or condition.
10.9. Counterparts. This Agreement may be executed in counterparts and all so
executed shall constitute an agreement which shall be binding upon the Parties hereto,
notwithstanding that the signatures of all Parties and Parties’ designated representatives
do not appear on the same page.
10.10. Venue. Venue for all legal proceedings shall be in the Superior Court in
and for the County of Merced in the State of California.
[SIGNATURE PAGE TO FOLLOW]
{CW053644.7} City of Atwater
Deputy City Manager/Finance Director
Employment Agreement
Page 12 of 12
IN WITNESS WHEREOF, this Agreement has been entered into by and between
Employee and City as of the date of the Agreement set forth above.
CITY:
City of Atwater, a municipal corporation
of the State of California
By:
Art de Werk, Interim City Manager
Date Signed:
EMPLOYEE:
By:
Lakhwinder Deol, an individual
Date Signed:
By:
Don Hyler III, City Clerk
Date Signed:
Approved as to Form and Content:
By:
Douglas L. White, Interim City Attorney
{CW053645.6} City of Atwater
Deputy City Manager
Employment Agreement
Page 1 of 12
DEPUTY CITY MANAGER EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered
into as of the 26th
day of March 2018, (“Effective Date”), by and between the CITY OF
ATWATER (“City”) and LORI WATERMAN (“Employee”). The City and Employee
shall be referred to herein individually as a “Party” and collectively as “Parties.” There
are no other parties to this Agreement.
RECITALS
A. Employee has been employed by the City since April 10, 2006.
B. The City Manager is authorized to negotiate and enter into
employment agreements with department heads pursuant to Atwater
Municipal Code (“Municipal Code”) section 2.04.050.
C. The Parties have agreed to employ Employee as the Deputy City
Manager (“Deputy City Manager”) for the City.
D. The Parties agree that this Agreement shall be the sole agreement
between the Parties regarding the employment of Employee as Deputy
City Manager.
E. The Parties’ desire to execute this Agreement pursuant to the authority
of, and subject to, the provisions of California Government Code
(“Government Code”) section 53260 et seq.
NOW, THEREFORE, in consideration of the mutual covenants entered into
between the Parties, and in consideration of the benefits that accrue to each, it is agreed
as follows:
AGREEMENT
Section 1. Recitals. The recitals set forth above (“Recitals”) are incorporated herein
by this reference and made a part of this Agreement. In the event of any inconsistencies
between Recitals and Section 1 through 10 of this Agreement, Sections 1 through 10 will
prevail.
Section 2. Appointment of Deputy City Manager, Duties, and Term.
Section 2.1. Appointment of Deputy City Manager. The City Manager hereby
appoints Employee to the position of Deputy City Manager, in and for the City, to
perform the function and duties of the Deputy City Manager under the direction of the
City Manager, as the City Manager is authorized to oversee City employees under
Section 2.04.050 of the Municipal Code. Employee accepts such appointment and
employment pursuant to the terms of this Agreement. Employee shall further perform the
{CW053645.6} City of Atwater
Deputy City Manager
Employment Agreement
Page 2 of 12
functions and duties specified in the job description, attached hereto as Exhibit A, under
the laws of the State of California, the City’s Municipal Code, Ordinances, and
Resolutions, and such other duties and functions as the City Manager may from time-to-
time assign.
Section 2.2. Secondary Employment/Conflict of Interest. Employee agrees to
devote all of her productive time, ability, and attention to the City’s business to the extent
necessary to perform her duties and responsibilities in a manner satisfactory to City.
During the Term, as defined in Section 2.5 of this Agreement, Employee shall not hold
secondary employment or engage in activities which conflict with, or present the
appearance or possibility of conflicting with, City’s business interests. As such,
Employee agrees that Employee will notify the City Manager in writing if Employee
accepts secondary employment, so City may determine whether there is a conflict or
potential conflict with the satisfactory performance of Employee’s duties and/or the best
interest of the City. Employee has the right to volunteer for such nonprofit organizations
as she may see fit and further provided that such volunteer services shall not interfere
with her duties as Deputy City Manager.
Section 2.3. Exempt Employee. The general business hours for City employees
are Monday through Thursday, utilizing a compressed work schedule of 36 hours per
week. However, it is recognized by the Parties that Employee is an exempt employee for
purposes of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). Employee
shall not receive overtime or extra compensation for hours worked outside of the City’s
general business hours, which are necessary to fulfill the duties of the Deputy City
Manager position, unless otherwise provided in this Agreement.
Section 2.4. Duties/Schedule. The Deputy City Manager’s daily and weekly
work schedule shall vary in accordance with the work required to be performed. The
Deputy City Manager position may include frequent attendance at evening meetings and
frequent irregular hours as necessary to meet deadlines and achieve objectives. The City
Manager recognize that the Deputy City Manager must devote a great deal of her time
outside normal office hours to business of the City and, to that end, will be allowed to
take Administrative Leave, as defined in Section 5.3 of this Agreement, as she shall deem
appropriate during said normal office hours, subject to notification and approval of the
City Manager.
The Deputy City Manager’s initial duties shall be as shown in the job description
attached as Exhibit A. Employee shall perform Employee’s duties under this Agreement
pursuant to the laws of the State of California and applicable City municipal codes and
resolutions. Employee understands that Employee’s duties may be amended from time to
time by the City, as necessary to meet the City’s needs. No modification or change in
Employee’s responsibilities, duties or position shall otherwise change or revoke any other
provision of this Agreement.
Unless otherwise specified in this Agreement, Employee shall be bound by all the
policies, rules and regulations of City now in force and effect applicable to Employee’s
{CW053645.6} City of Atwater
Deputy City Manager
Employment Agreement
Page 3 of 12
position, and by all such other applicable policies, rules and regulations as may be
hereafter implemented and called to her notice and will faithfully observe and abide by
the same. No such policy, rule or regulation shall alter, modify or revoke employee’s
status as an at-will employee or any other provision of this Employment Agreement.
Section 3. At-Will Employment.
Section 3.1. At-Will. Employee is an at-will employee serving at the pleasure of
the City Manager, as provided in Government Code section 36506 and Municipal Code
section 2.09.040. Accordingly, the City Manager may terminate Employee’s
employment at any time, with or without cause. Only if Employee is terminated by City
without Good Cause, as defined in Section 5.4 of this Agreement, shall Employee be
entitled to a Severance, as defined in Section 5.3 of this Agreement.
Section 3.2. No Property Right in Employment. Employee understands and
agrees that the terms of her employment are governed only by this Agreement and that no
right of employment for any specific term is created by this Agreement. Employee further
understands that based on her “at-will” employment status, she acquires no property
interest in her employment by virtue of this Agreement, and that she is not entitled to due
process for any disciplinary actions under the City’s personnel policies and rules,
including termination.
Section 4. Compensation and Benefits
Section 4.1 Deputy City Manager Salary. Beginning March 8, 2018, for
services performed as Deputy City Manager, Employee shall be compensated at Step 1 of
Range 339 of the Salary Schedule (currently in the amount of $10,617.01 per month, less
any reductions for furlough). Employee shall be subject to the requirement of two (2)
furlough days per month until such time as the furlough requirement is modified for
similarly situated City employees. Employee’s performance shall be reviewed annually
pursuant to the City’s Performance Evaluation Policy and she shall be eligible to move to
Step 2 within 1 year following the Effective Date, and to have her salary adjusted
annually thereafter as set forth in the Salary Schedule, as determined by the City
Manager.
Section 4.2. Review and Evaluation. The City Manager agrees to review and
evaluate Employee’s performance of her duties as Deputy City Manager, pursuant to the
terms of this Agreement (“Review and Evaluation”), on not less than an annual basis and
to provide Employee with a written performance review. The annual Review and
Evaluation shall be conducted on or about March 8th of each year, or at the City
Manager’s discretion.
Section 4.3. Automobile. For services performed as Deputy City Manager,
Employee shall have the option to either use a City vehicle, if available, or to use her
personal vehicle and receive reimbursement for mileage pursuant to the City’s Travel
Policy.
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Section 4.4. Administrative Leave. It is recognized that Employee must devote
a great deal of time outside the normal office hours to City business as Deputy City
Manager. To that end, Employee shall receive eighty (80) hours of administrative leave
(“Administrative Leave”) per calendar year (prorated from the Effective Date), which
may be cashed out annually if budgeted funds are available to permit the cash out.
Administrative Leave is only available for use or cash out in the year in which it is given
and shall not be carried over. Any unused Administrative Leave expires on December 31
of each calendar year and shall not be carried over from year to year.
Section 4.5. Sick Leave and Vacation.
4.5.1. Sick Leave. Deputy City Manager shall accrue four (4) hours of sick leave
over 24 pay periods. Deputy City Manager shall be permitted to cash out up to
ninety-six (96) hours of accrued and unused sick leave annually if budgeted funds
are available to permit the cash out. There is no cap on sick leave accruals. If
employee’s employment with the City terminates, sick leave shall be paid out
pursuant to the City’s Paid Sick Leave Policy.
4.5.2. Vacation Leave. Employee shall accrue 6.67 hours of vacation leave per
pay period. Employee may cash out up to eighty (80) hours of accrued, unused
vacation annually if budgeted funds are available to permit the cash out. Vacation
accrual rate shall increase based on years of service with the City consistent with
the Mid Managers Group, or Department Director Group (if established),
whichever provides the greater benefit to Employee. Accruals are capped at twice
the annual accrual amount.
Section 4.6. Holidays. Employee shall be subject to the provisions governing
Holidays as are set forth in the City’s Personnel Rules and Regulations.
Section 4.7. Medical, Dental and Vision.
4.7.1 Medical, Dental and Vision During Employment. During the term
of this
Agreement, or any extension hereof, the City shall pay the
premiums for Employee and her qualified dependents’ medical,
dental and vision insurance on the same terms and conditions as
are offered to other similarly situated City employees, consistent
with the tier system utilized for the Mid Managers Group, or
Department Director Group (if established), whichever provides
the greater benefit to Employee. Employee shall be responsible for
the payment of any premiums not paid for by the City and all
deductibles, co-payments and disallowed costs. Should Employee
elect not to participate in the City’s medical plan, or elect to enroll
in medical coverage through her spouse, she shall be eligible for
in-lieu payments in the amount set by City Council resolution.
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4.7.2 Medical Upon Retirement. Upon Employee’s retirement from the
City, the City shall continue to pay the premiums for Employee
and her qualified dependents’ medical insurance on the same terms
and conditions as are offered to other similarly situated City
annuitants, consistent with the tier system utilized for the Mid
Managers Group, or Department Director Group (if established),
whichever provides the greater benefit to Employee at the time of
Employee’s retirement. Employee shall be responsible for the
payment of any premiums not paid for by the City and all
deductibles, co-payments and disallowed costs. When Employee
and her qualified dependents become eligible for Medicare, the
City’s medical insurance plan shall become secondary insurance
and the City’s obligation to pay premiums as set forth in this
Section shall be reduced accordingly.
4.7.3 Dental and Vision Upon Retirement. Upon Employee’s retirement
from the City, Employee and eligible dependents may elect to
remain on the City’s dental and/or vision coverage plans for the
period established by COBRA, but Employee will be responsible
for paying the full amount of the monthly premium amounts for
Employee and eligible dependents, which are established by the
City’s provider, as well as all deductibles, co-payments, and
disallowed costs. Said amounts are subject to change annually.
The City shall bill Employee on a monthly basis for the full
amount of the monthly premiums. Non-payment will result in
disenrollment of Employee and eligible dependents without the
option to re-enroll. Upon expiration of the COBRA period,
coverage for Employee and dependents shall be discontinued.
Section 4.8. Retirement. The City participates in CalPERS. CalPERS will
make the determination if Employee is considered a “Classic” or “New Member” (as
defined under Government Code section 7522.04), and Employee shall contribute based
on the enrolled tier. The City shall pay 100% of the employer contribution. Employee
shall pay 100% of the employee contribution.
Section 4.9. Life Insurance. During the term of this Agreement, or any
extension hereof, the City shall pay 100% of all premiums to cover the life insurance
policy currently in place for the benefit of Employee.
Section 4.10. Disability. During the term of this Agreement, or any extension
hereof, the City shall pay 100% of all premiums to cover both short term and long-term
disability benefits for the benefit of Employee.
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Section 4.11. Unemployment. During the term of this Agreement, or any
extension hereof, the City shall contribute to the Unemployment Insurance Program for
the benefit of Employee, at no cost to Employee.
Section 4.12. Changes in Fringe Benefits or Working Conditions. Except as
otherwise provided herein, all provisions of the Rules and Regulations of the City relating
to changes to fringe benefits and/or working conditions as they now exist, or hereinafter
may be amended, shall also apply to Employee as they would to other Department
Directors, in addition to the benefits enumerated for the benefit of Employee as herein
provided.
Section 5. Termination of Employment and Severance.
Section 5.1. Voluntary Resignation. Employee may resign at any time and
agrees to give the City at least thirty (30) days advance written notice of the effective date
of Employee’s resignation, unless the Parties otherwise agree in writing. If Employee
retires from full-time public service with the City, Employee shall provide three (3)
months advance written notice. During the notice period, all rights and obligations of the
Parties under this Agreement shall remain in full force and effect. Promptly after the
effective date of resignation or retirement, the City shall pay to Employee all salary and
other compensation due and owing under this Agreement. In the event of voluntary
resignation or retirement, Employee shall not be entitled to Severance, as set forth in
Section 5.3 of this Agreement.
Section 5.2. Termination by City Manager. The City Manager may terminate
this Agreement and remove Employee from her position as Deputy City Manager at any
time with or without cause and with or without notice. If Employee’s termination is based
on charges of misconduct that publicly stigmatizes Employee’s reputation or impairs her
ability to earn a living, or might damage her standing in a community, Employee may,
within five (5) business days of the City Manager’s notice to Employee of his or her
intent to terminate Employee’s employment, make a written request for a "name-
clearing" hearing (as described in Lubey v. City and County of San Francisco (1979) 98
Cal.App.3d 340 and its progeny) before the City Council in closed session. The "name-
clearing" hearing is solely to provide Employee the opportunity to clear her name. The
City Council may determine whether the allegations contained in the notice of
termination are supported. If the City Council determines that the allegations are not
supported, a decision shall be issued to reflect that Employee's termination was without
fault. This decision will not, however, require that Employee be reinstated to her position.
In the event Employee does not request a "name-clearing" hearing before the City
Council, the City Manager’s decision to terminate will be effective by the close of
business on the fifth (5th) day after the City Manager provided notice to Employee of his
or her intent to terminate her employment.
Section 5.3. Termination Without Good Cause. In the event the City
terminates Employee’s employment and this Agreement without Good Cause, as defined
in Section 5.4, below, the Employee shall be given the option to either:
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(a) Be appointed to General Services Director, where her compensation will be
based on Step 4 or Range 335b of the Salary Schedule for General Services
Director, where in the terms of a new “at-will” agreement shall be negotiated;
or
(b) terminate her employment with the City, and she shall receive a sum equal to
four (4) month’s Base Salary (“Severance”). Such Severance is subject to the
restrictions of Government Code section 53260. Severance shall be paid in
the same manner as to other similarly situated City employees unless
otherwise agreed to by the City and Employee. In the event the City
terminates this Agreement and Employee’s employment, Employee shall be
entitled to continued medical and dental benefits at her own cost, pursuant to
the provisions of the federal Consolidated Omnibus Budget Reconciliation
Act (“COBRA”).
Section 5.4. Termination for Good Cause. The City may at any time
immediately terminate this Agreement and Employee’s employment for Good Cause, as
defined below. If Employee is terminated for Good Cause, the City shall not be required
to pay any Severance under this Agreement, and the City shall have no obligation to
Employee beyond those benefits accrued as of Employee’s last day of employment and
those the City is obligated to provide under federal or state law.
“Good Cause” for purposes of this Agreement, means a fair and honest cause or reason
for termination. These reasons include, but are not limited to:
1. Conviction of a felony;
2. Disclosing confidential information of the City;
3. Gross carelessness or misconduct;
4. Unjustifiable and willful neglect of the duties described in this
Agreement;
5. Mismanagement;
6. Dishonesty;
7. Failure to perform Employee’s duties to the standard set by the
City (refer to job description in Exhibit A);
8. Any conduct which violates the applicable provisions of the City’s
personnel policies, rules or regulations for which a City employee
may be terminated;
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9. Repeated and protracted unexcused absences from the Deputy City
Manager’s office and duties;
10. Willful destruction or misuse of City property;
11. Conduct that in any way has a direct, substantial, and adverse
effect on the City’s reputation whether during or outside business
hours;
12. Willful violation of federal, state, or City discrimination laws;
13. Being under the influence of alcohol or narcotics (for which the
employee does not have a valid medical prescription) while on
duty;
14. Substance abuse which adversely affects performance of
Employee’s duties as Deputy City Manager;
15. Discourteous treatment of the public or other employees;
16. Refusal to take or subscribe any oath or affirmation which is
required by law;
17. Employee’s disability resulting in his or her inability to perform
the essential functions of his/her job, which the City is unable to
reasonably accommodate without placing an undue burden on City
business operations; or
18. Engaging in other employment or activities which conflict with, or
present the appearance or possibility of conflicting with, City’s
legitimate business interests
The City Manager may also place Employee on paid or unpaid investigatory leave
during the Term of this Agreement.
Section 6. Notices. Any notice or communication required hereunder between the
City and Employee must be in writing and may be given either personally, by facsimile
(with original forwarded by regular U.S. Mail), by registered or certified mail (return
receipt requested), or by Federal Express, UPS, or other similar couriers providing
overnight delivery. If personally delivered, a notice shall be deemed to have been given
when delivered to the Party to whom it is addressed. If given by facsimile transmission, a
notice or communication shall be deemed to have been given and received upon actual
physical receipt of the entire document by the receiving Party’s facsimile machine.
Notices transmitted by facsimile after 5:00 p.m. on a normal business day, or on a
Saturday, Sunday or holiday shall be deemed to have been given and received on the next
normal business day. If given by registered or certified mail, such notice or
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communication shall be deemed to have been given and received on the first to occur of
(a) actual receipt by any of the addressees designated below as the Party to whom notices
are to be sent, or (b) five (5) days after a registered or certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in the United States mail.
If given by Federal Express or similar courier, a notice or communication shall be
deemed to have been given and received on the date delivered, as shown on a receipt
issued by the courier. Any Party hereto may at any time, by giving ten (10) days written
notice to the other Party hereto, designate any other address in substitution of the address
to which such notice or communication shall be given. Such notices or communications
shall be given to the Parties at their addresses set forth below:
If to Employee: City of Atwater
Attn: Lori Waterman
750 Bellevue Road
Atwater, California 95301
CC: Employee’s home address on file
If to the City: City Manager
750 Bellevue Road
Atwater, California 95301
and Churchwell White, LLP
ATTN: Douglas L. White
1414 K Street, 3rd
Floor
Sacramento, CA 95814
Section 7. Indemnification. The City shall defend, hold harmless, and indemnify
Employee against any tort, personnel, civil rights, or professional liability claim or
demand or other legal action, whether groundless or otherwise, arising out of an alleged
act or omission occurring in the performance of Employee’s duties as Deputy City
Manager in accordance with the California Government Claims Act (Government Code
section 810 et seq.) and shall provide a defense to Employee in accordance with
Government Code sections 995-996.6. The City may decline to defend or indemnify
Employee only as permitted by the Government Code. City may compromise and settle
any such claim or suit and pay the amount of any resulting settlement or judgment;
provided, however, the City’s duty to defend and indemnify Employee shall be
contingent upon Employee’s good faith cooperation with such defense. In the event the
City provides paid leave to the Employee pending an investigation or funds for a legal
criminal defense pursuant to this Section, Employee shall reimburse the City for the
amount of such paid leave or cost of the legal criminal defense, if Employee is convicted
of a crime involving an abuse of office or position, as provided by Government Code
sections 53243-53243.1. Also, if this Agreement is terminated, any cash settlement
related to the termination that Employee may receive from the City shall be fully
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reimbursed to the City if Employee is convicted of a crime involving an abuse of his or
her office or position as provided in Government Code section 53243.2-53243.4.
Section 8. Bonding. The City shall bear the full cost of any fidelity or other bonds
required of Employee under any law or ordinance.
Section 9. Attorneys’ Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret any of the provisions of this
Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, which may
be set by the court in the same action or in a separate action brought for that purpose, in
addition to any other relief to which that Party may be entitled.
Section 10. General Provisions
10.1. Modification of Agreement. This Agreement may be supplemented,
amended, or modified only by a writing signed by the City and Employee.
10.2. Entire Agreement. This Agreement constitutes the final, complete, and
exclusive statement of the terms of the agreement between the Parties and supersedes all
other prior or contemporaneous oral or written understandings and agreements of the
Parties. No Party has been induced to enter into this Agreement by, nor is any Party
relying on, any representation or warranty except those expressly set forth in this
Agreement.
10.3. Severability of Agreement. If a court or an arbitrator of competent
jurisdiction holds any section of this Agreement to be illegal, unenforceable, or invalid
for any reason, the validity and enforceability of the remaining sections of this
Agreement shall not be affected.
10.4. Authority. All Parties to this Agreement warrant and represent that they
have the power and authority to enter into this Agreement and the names, titles, and
capacities herein stated on behalf of any entities, persons, states, or firms represented or
purported to be represented by such entities, persons, states, or firms and that all former
requirements necessary or required by state or federal law in order to enter into this
Agreement had been fully complied with. Further, by entering into this Agreement,
neither Party hereto shall have breached the terms or conditions of any other contract or
agreement to which such Party is obligated, which such breach would have a material
effect hereon.
10.5. Headings. The headings in this Agreement are included for convenience
only, and neither affects the construction or interpretation of any section in this
Agreement nor affects any of the rights or obligations of the Parties to this Agreement.
10.6. Necessary Acts and Further Assurances. The Parties shall, at their own
cost and expense, execute and deliver such further documents and instruments and shall
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take such other actions as may be reasonably required or appropriate to evidence or carry
out the intent and purposes of this Agreement.
10.7. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
10.8. Waiver. No covenant, term, or condition, or the breach thereof, shall be
deemed waived, except by written consent of the Party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term, or condition shall not be
deemed to be a waiver of any preceding or succeeding breach of the same or any other
covenant, term, or condition.
10.9. Counterparts. This Agreement may be executed in counterparts and all so
executed shall constitute an agreement which shall be binding upon the Parties hereto,
notwithstanding that the signatures of all Parties and Parties’ designated representatives
do not appear on the same page.
10.10. Venue. Venue for all legal proceedings shall be in the Superior Court in
and for the County of Merced in the State of California.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement has been entered into by and between
Employee and City as of the date of the Agreement set forth above.
