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Resolution No. 2013-024RESOLUTION NO. 2013-24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AMENDMENT TO AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY BY AND BETWEEN THE CITY OF VERNON AND NICHOLAS GEORGE RODRIGUEZ WHEREAS, on August 7, 2012, the City Council of the City of Vernon adopted Resolution No. 2012-148 appointing Nicholas George Rodriguez ("Rodriguez") to serve as the City Attorney of the City of Vernon and approving the execution of a related employment agreement (the "Agreement"); and WHEREAS, the City and Rodriguez desire to amend the Agreement to (1) eliminate the provision that termination of the City Administrator is a breach of the City Attorney contract; (2) reduce severance by 12 months for a no fault termination; (3) add a provision that requires return of severance pay, administrative leave pay, and any legal cost of criminal defense if Rodriguez is convicted of a crime involving abuse of office, and (4) provide vacation and management time off that would been provided if management benefits had been in effect when the Agreement was originally signed and in a manner which has no fiscal impact on the City; and WHEREAS, the City Council of the City of Vernon desires to approve the Amendment to At -Will Employment Agreement for Vernon City Attorney. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the Amendment to At -Will Employment Agreement for Vernon City Attorney (the "Amendment") with Rodriguez, in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro -Tern to execute said Amendment for, and on behalf of, the City of Vernon and the Interim City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non -substantive changes to the Amendment attached herein. SECTION 6: The City Council of the City of Vernon hereby directs the Interim City Clerk, or the Interim City Clerk's designee, to give a fully executed Amendment to Rodriguez. - 2 - SECTION 7: The Interim City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the Interim City Clerk of the City of Vernon shall cause this resolution and the Interim City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 5th day of February, 2013. Name: William J. Davis xeea, interim uizy uierx - 3 - Title: Mayor / STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Dana Reed, Interim City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2013-24, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, February 5, 2013, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of February, 2013, at Vernon, California. vv Da a Reed, Interi h City Clerk (SEAL) - 4 - EXHIBIT A AMENDMENT TO AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY This AMENDMENT TO THE AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY ("Amended Agreement") is made as of the 5`h day of February, 2013, by and between NICHOLAS GEORGE RODRIGUEZ ("Rodriguez") and the CITY OF VERNON, CALIFORNIA, a municipal corporation and charter city ("City"). The Recitals are considered a material part of this Amended Agreement. RECITALS (A) Rodriguez and the City entered into an employment agreement which was made effective as of September 10, 2012 ("Original Agreement"). (B) Rodriguez has assumed the position of City Attorney for the City and has been working with City Council, the City Administrator and City staff on the Good Governance Reforms as well as handling the day to day business of the City. (C) Rodriguez and the City wish to amend the Original Agreement to reflect the progress on the Good Governance Efforts, and specifically, the commitment of the City Council and City Administrator to a stable administration by eliminating the contractual linkage between the City Administrator and City Attorney and to reduce the maximum potential severance available to Rodriguez by 12 months. (D) Rodriguez and the City wish to add additional ethics contingencies requiring repayment of any severance, paid administrative leave or applicable criminal attorney's fee pursuant to Government Code sections 53243 et seq. based on a conviction of a crime involving an abuse of his office or position. (E) Rodriguez and the City wish to update the Original Agreement to reflect the newly adopted Management Benefits not in effect at time the Original Agreement was signed. Rodriguez and City hereby amend the Original Agreement as follows: 1. A new Section 4.1 is added to Section 4. Compensation and Benefits to read as follows: "4.1 As a Management Benefits package was not in effect for executive personnel, including heads of major City departments when the Agreement was signed, Rodriguez shall receive a one-time, additional allocation of vacation leave in the amount of forty (40) hours. In addition, Rodriguez shall receive a 2012 allocation of Management Time Off in the amount of 80 hours, which shall not expire until termination of this Agreement, but which may not be cashed out." 2. Section 6(B) is amended to read as follows, in its entirety: "B. Rodriguez may, at his option, terminate this Agreement in the event of a material breach by the City." 1 of 2 3. Section 6(D) is amended to read, as follows, in its entirety: "D. In the event of a material breach of this Agreement by the City or City termination of Rodriguez except for the reasons specified in Subsection (C), of this Section, Rodriguez shall be entitled to receive full compensation and benefits set forth in Section 4, above, until August 31, 2015, except that he shall not be entitled to receive more than twelve (12) months of severance compensation and benefits. Further, Employee agrees that any severance pay, paid administrative leave or criminal attorney's fee paid for by the City during his employment shall be fully reimbursed to City if Rodriguez is convicted of a crime involving an abuse of his office pursuant to Government Code sections 53243 et seq." 4. All other terms and provisions of the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amended Agreement as of the date of execution by the City. City of Vernon, a California charter City and California municipal corporation I� William Davis, Mayor Pro-Tem Name: Nicholas Georee Rodriguez ATTEST: Interim City Clerk, Dana Reed APPROVED AS TO FORM: LIEBERT CASSIDY WHITMORE Un Joung H. Yim 2of2 OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 February 11, 2013 Nicholas G. Rodriguez, Esq. Re: Amendment to City Attorney At -Will Employment Agreement Dear Mr. Rodriguez: Transmitted herewith is an original fully executed amendment, approved through Resolution No. 2013-24, approved by City Council on February 5, 2013. If you have any questions regarding this matter, please call Mr. Dana Reed at (323) 583-8811 ext. 363. Very truly yours, �au Deborah R. Juarez Records Management Assistant Enclosure c: Joaquin Leon Teresa McAllister Dana Reed Resolution No. 2013-24 Agreement File No. 13-011 F�Ccfustvefy IndustriaI AMENDMENT TO AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY This AMENDMENT TO THE AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY ("Amended Agreement") is made as of the 51h day of February, 2013, by and between NICHOLAS GEORGE RODRIGUEZ ("Rodriguez") and the CITY OF VERNON, CALIFORNIA, a municipal corporation and charter city ("City"). The Recitals are considered a material part of this Amended Agreement. RECITALS (A) Rodriguez and the City entered into an employment agreement which was made effective as of September 10, 2012 ("Original Agreement"). (B) Rodriguez has assumed the position of City Attorney for the City and has been working with City Council, the City Administrator and City staff on the Good Governance Reforms as well as handling the day to day business of the City. (C) Rodriguez and the City wish to amend the Original Agreement to reflect the progress on the Good Governance Efforts, and specifically, the commitment of the City Council and City Administrator to a stable administration by eliminating the contractual linkage between the City Administrator and City Attorney and to reduce the maximum potential severance available to Rodriguez by 12 months. (D) Rodriguez and the City wish to add additional ethics contingencies requiring repayment of any severance, paid administrative leave or applicable criminal attorney's fee pursuant to Government Code sections 53243 et seq. based on a conviction of a crime involving an abuse of his office or position. (E) Rodriguez and the City wish to update the. Original Agreement to reflect the newly adopted Management Benefits not in effect at time the Original Agreement was signed. Rodriguez and City hereby amend the Original Agreement as follows: 1. A new Section 4.1 is added to Section 4. Compensation and Benefits to read as follows: "4.1 As a Management Benefits package was not in effect for executive personnel, including heads of major City departments when the Agreement was signed, Rodriguez shall receive a one-time, additional allocation of vacation leave in the amount of forty (40) hours. In addition, Rodriguez shall receive a 2012 allocation of Management Time Off in the amount of 80 hours, which shall not expire until termination of this Agreement, but which may not be cashed out." 2. Section 6(B) is amended to read as follows, in its entirety: "B. Rodriguez may, at his option, terminate this Agreement in the event of a material breach by the City." 1 of 2 3.. Section 6(D) is amended to read, as follows, in its entirety: "D. In the event of a material breach of this Agreement by the City or City termination of Rodriguez except for the reasons specified in Subsection (C), of this Section, Rodriguez shall be entitled to receive full compensation and benefits set forth in Section 4, above, until August 31, 2015, except that he shall not be entitled to receive more than twelve (12) months of severance compensation and benefits. Further, Employee agrees that any severance pay, paid administrative leave or criminal attorney's fee paid for by the City during his employment shall be fully reimbursed to City if Rodriguez is convicted of a crime involving an abuse of his office pursuant to Government Code sections 53243 et seq." 4. All other terms and provisions of the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this .Amended Agreement as of the date of execution by the City. City of Vernon, a California charter City and California municipal corporation By: William Davis, Mayo • Pro-Tem TWW fhbFim City Clerk, Dana eed APPROVED AS TO FORM: LIEBERT CASSIDY WHITMORE By: o ig H. Yim I/Azil 13 By: Name: Nicholas George Rodriguez 2 of 2 RECEIVE® JAN 17 2013 CITY CLERK'S OFFICE DATE: TO: FROM: STAFF REPORT City Clerk Department February 5, 2013 Honorable Mayor and City Council 4"6L Dana Reed, Interim City Clerk RECEIVED JAN 16 2013 CITY ADMINISTRATIOM RE: Amendment to At Will Employment Agreement for Vernon City Attorney Recommendation It is recommended that the City Council find that approval of the proposed amendment to the at will employment agreement for Vernon City Attorney in this staff report is exempt under the California Environmental Quality Act (CEQA) in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. It is recommended that the City Council approve the attached, Amendment to the At Will Employment Agreement for the Vernon City Attorney, requested by the City Attorney to, (1) eliminate the provision that termination of the City Administrator is a breach of the City Attorney contract; (2) reduce severance by 12 months for a no fault termination; (3) add a provision that requires return of severance pay, administrative leave pay, and any legal cost of criminal defense if convicted of a crime involving abuse of office, and (4) provide Vacation and Management Time Off that would have been provided if Management benefits had been in effect when the Agreement was originally signed and in a manner which has no fiscal impact on the City. Background The Vernon City Attorney assumed his position in September, 2012, and has been working diligently in the Good Governance Reform Efforts and in the day to day business of the City. To lessen the perceived risk of coming over to Vernon in a period of instability, two extraordinary provisions were included in the At Will Employment Agreement for the Vernon City Attorney, at his request. The first linked the continued tenure of Mark Whitworth to the tenure of the City Attorney, by indicating that Mr. Whitworth's termination would be a breach of the City Attorney Agreement, and the second provided for a severance provision of twenty four (24) months. These were the only provisions of the Agreement which received public attention and criticism as they were seen as outside the norm for personal services contracts. With the appointment of Mr. Whitworth as the City Administrator,under a two year contract, with the unquestioned commitment of the City Council to Good Governance Reforms, and with the great strides and accomplishments in the Good Governance Reform Efforts, the City Attorney has requested that the provisions in his Agreement which were criticized as outside of the norm be revisited: First, he has requested that the references in Section 6(B), which specified that termination of Mr. Whitworth would be a breach of the City Attorney contract, be eliminated. Second, he and the Council have agreed that the severance provisions in Section 6(D) should be reduced by 12 months, specifically from 24 months to 12 months. While this 12 month period will be unique for Vernon, and is greater than the standard of 6 months that will be specified on other at -will contracts, it is in keeping with the prior, unique agreement made with the City Attorney to protect him from future instability in exchange for his leaving stable, long term employment in another City. This agreed upon amount of 12 months severance pay is substantially less than the 24 months in the present Agreement to which the City Attorney would currently be entitled. In addition, the City Attorney has asked that a provision will be added to Section 6(B) of the Agreement requiring any severance, administrative leave pay, or any legal cost of criminal defense to be repaid in the event there is conviction of a crime involving abuse of the office. This is a good governance reform provision and is a necessary part of all public employment contracts. Finally, when the City Attorney negotiated his Agreement with the City, he had been given the impression that there was a management benefit program in effect in Vernon for vacation and leave time and, therefore, did not separately negotiate benefits such as vacation or leave time. However, there was no management benefit program in effect at the time, and it was only adopted recently. Again, in keeping with the intent of the Agreement with the City Attorney, it is proposed to provide a one-time, 40 hour allocation of vacation time, and a one-time allocation of 80 hours of Management Time Off. The Management Time Off shall expire with the termination of the At -Will Employment Agreement; but may not be cashed out. Therefore, the City Attorney will receive essentially those benefits to which he would have been entitled in the normal course, had the present Management Benefit program been in place when he signed his Agreement. Importantly, there will be no cost to the City from this arrangement Fiscal Impact There will be no fiscal impact to Vernon from the application of these amendments.