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HomeMy WebLinkAboutReso 87-21 CalPERS 180 Day Exception (Livick)RESOLUTION NO. 87-21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA FOR 180-DAY WAIT PERIOD EXCEPTION G.C. SECTIONS 7522.56 & 21221(H) THE CITY COUNCIL City of Morro Bay California WHEREAS, in compliance with Government Code section 7522.56 the City of Morro Bay ("City") City Council must provide CaIPERS this certification resolution when hiring a retiree before 180 days has passed since his or her retirement date; and WHEREAS, Robert Livick (CaIPERS ID 5048447214) will retire from the City of Morro Bay in the position of City Engineer, effective December 31, 2021; and WHEREAS, section 7522.56 requires that post -retirement employment commence no earlier than 180 days after the retirement date, which is June 30, 2022 (date of 181 st day after retirement) without this certification resolution; and WHEREAS, section 7522 56 provides that this exception to the 180-day wait period shall not apply if the retiree accepts any retirement -related incentive; and WHEREAS, the City Council of the City and Mr. Livick certify that he has not and will not receive a Golden Handshake or any other retirement -related incentive; and WHEREAS, the City Council of the City hereby appoints Mr Livick as an interim appointment retired annuitant to the vacant position of City Engineer for the City under Government Code section 21221(h), effective January 3, 2022; and WHEREAS, an appointment under Government Code section 21221(h) requires an active, publicly posted recruitment for a permanent replacement; and WHEREAS, the current status of this recruitment is active; and WHEREAS, this section 21221(h) appointment shall only be made once and therefore will end on December 31, 2022, if not automatically terminated earlier; and WHEREAS, the entire employment agreement, contract or appointment document between Mr. Livick and the City of Morro Bay has been reviewed by this body and is attached herein, and WHEREAS, no matters, issues, terms or conditions related to this employment and appointment have been or will be placed on a consent calendar, and WHEREAS, the employment shall be limited to 960 hours per fiscal year, except as allowed by CaIPERS pursuant to Executive Order N-12-21, which continues the suspension of the 960 hour per fiscal year limit during the state of emergency due to the COVID-19 pandemic, and 01181.0004/755730.1 1 WHEREAS, the compensation paid to retirees cannot be Tess than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate; and WHEREAS, the maximum monthly base salary for this position is $10,828.00 and the hourly equivalent is $62.47, and the minimum base salary for this position is $8,908.17 and the hourly equivalent is $51.39; and WHEREAS, the hourly rate paid to Mr. Livick will be $62.47; and WHEREAS, Mr. Livick has not and will not receive any other benefit, incentive, compensation in lieu of benefit or other form of compensation in addition to this hourly pay rate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City of Morro Bay City Council hereby certifies the nature of the employment of Robert Livick as described herein and detailed in the attached employment agreement and that this appointment is necessary to fill the critically needed position of City Engineer for the City by January 3, 2022 because such position is essential to maintaining the basic ongoing operations of the City (specifically with respect to critical surveying and engineering works), ensuring adequate staffing during the state of emergency caused by the COVID-19 pandemic, and because a recruitment for the permanent position of City Engineer could not be completed by this date. PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on the 14th day of December 2021, by the following vote: AYES* Headding, Addis, Barton, Ford, Heller NOES None ABSENT: None ABSTAIN: None JOHN ;, EMDING"Vayor ATTEST: MAS°)"-- DANA SWANSON, City Clerk 01181.0004/755730.1 2 CITY OF MORRO BAY AT -WILL INTERIM CITY ENGINEER EMPLOYMENT AGREEMENT This AT -WILL INTERIM CITY ENGINEER EMPLOYMENT AGREEMENT ("Agreement") is made by and between the CITY OF MORRO BAY (the "City") and ROBERT LIVICK ( `Employee') The City and Employee may be referred to individually as a ` Party" or collectively as "the Parties " WHEREAS, Government Code subdivision 21221(h) permits retired annuitants under the California Public Employees' Retirement System ("Ca1PERS") to be employed without reinstatement from retirement upon appointment by a public agency to fill a vacant position on an interim basis during the recruitment to permanently fill the vacant position; and WHEREAS, Employee very recently announced his retirement from the position of City Engineer effective December 31, 2021, and as a result, the City Engineer position will be vacant as of that date; and WHEREAS, Employee has reached normal retirement age; and WHEREAS, the City is currently conducting an open recruitment to permanently fill the position of City Engineer; and WHEREAS, the City anticipates the City Engineer position will be filled with a permanent replacement within four months after the effective date of this Agreement; and WHEREAS, the duties of the City Engineer are set forth in full in Exhibit "A" to this Agreement WHEREAS, pursuant to Cal. Government Code § 7522.56(0, a retired person shall not be employed as a retired annuitant for a period of 180 days following the date of retirement unless he or she meets one of several exceptions, including that "[t]he employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting[;]"; and WHEREAS, concurrent with the approval of this Agreement, the City Council adopted Resolution No. 87-21, certifying the nature of Employee's employment and that the appointment is necessary to fill a critically needed position before 180 days have passed since Employee's retirement; and WHEREAS, Ca1PERS requires in order `[t]o secure a 180-day wait period exception, the employer must submit the resolution -certification package . . and a copy of the retiree's employment agreement or personnel appointment document to Ca1PERS before the first day of employment[;]" and 01181.0004/755588.1 MHUSTON_ALWY Page 1 of 7 WHEREAS, it is the desire of the City Manager to appoint Employee to serve as an at - will, part-time temporary employee for the position of Interim City Engineer, which is a position that requires specialized skills and expert professional services for a definite period of time, effective January 3, 2022; and WHEREAS, as a Ca1PERS retired annuitant under Government Code subdivision 21221(h), Employee (i) possesses knowledge, skills and abilities necessary to fulfill the required duties of the Interim City Engineer, as demonstrated by his success as city engineer over an extensive period of time, (ii) desires to perform the duties of and assume responsibility for the position of Interim City Engineer, and (iii) acknowledges such employment is at -will and of a limited duration for a definite period of time, as described below; and WHEREAS, the Parties wish to establish the terms and conditions of Employee's services to the City, as described in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, City and Employee hereby agree as follows: Section 1: TERM The term of this Agreement shall commence on January 3, 2022, and shall automatically terminate on December 31, 2022 unless terminated prior to that date by either Party (the `Term"). The City shall terminate this Agreement in accordance with Section 4 of this Agreement upon the City appointment of a permanent replacement for the position of City Engineer. In no event shall the Term exceed the 960-hour per fiscal year limit under Government Code subdivision 21221(h) except as allowed by Ca1PERS pursuant to Executive Order N-12-21, which continues the suspension of the 960 hour per fiscal year limit during the state of emergency due to the COVID-19 pandemic. In the event Employee works 960 hours in a single fiscal year during the Term of this Agreement without Ca1PERS authorization then this Agreement shall terminate automatically. January 3, 2022 shall be Employee's "Hire Date" for purposes of this Agreement. Section 2: DUTIES, RESPONSIBILITIES, AND WORK HOURS A. Employee shall be appointed to the position of Interim City Engineer, the functions and duties of that position, as described in Exhibit "A" to this Agreement, and such other legally permissible and proper duties and functions as the Public Works Director shall, from time to time, direct or assign to Employee. Employee acknowledges the position of Interim City Engineer requires specialized skills and expert professional services for a definite period of time, as described above in Section 1 of this Agreement. Employee agrees to perform all such functions and duties to the best of Employee's ability and in an efficient, competent, and ethical matter. B. During the term of his appointment to the position of Interim City Engineer, the Parties anticipate that Employee will work a part-time schedule of approximately thirty (30) hours per week. Employee shall not work more than forty (40) hours per week without first obtaining written authorization to do so from the City Manager. Employee acknowledges proper 01181.0004/755588.1 MHUSTON_ALWY Page 2 of 7 perfoiinance of the duties of Interim City Engineer may occasionally require Employee to devote time outside of normal office hours, including attendance at City Council and other City or community meetings. Notwithstanding the foregoing, the Parties understand and agree, due to the Ca1PERS limitation on the number of hours Employee can work for the City, Employee may not be available during some hours or days, if extra time is required for attendance at meetings and other reasons relating to City -business. C. All data, studies, reports, and other documents prepared and/or reviewed by Employee while performing his duties during the Term of this Agreement shall be furnished to and become the property of the City, without restriction or limitation on their use. All ideas, memoranda, specifications, plans, procedures drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to Employee in connection with the performance of this Agreement shall be held confidential by Employee to the extent permitted by applicable law. Such materials, without the prior written consent of the City, shall not be used by Employee for any purpose other than the performance of his duties. Nor shall such materials be disclosed to any person or entity not connected with the performance of services under this Agreement, except as required by law. Section 3: COMPENSATION/ BENEFITS PROHIBITED A. The City agrees to compensate Employee at the rate of Sixty-two Dollars and Forty-seven Cents ($62.47) per hour, which is within the hourly compensation range for the City Engineer position The current compensation range for the City Engineer position is $106,898.00 to $129,936.00 annually. ($129,936.00 divided by 12 divided by 173.333 = $62.47.) B. Employee shall not be eligible for any other benefits incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate except for the above hourly rate and workers' compensation benefits. Section 4: RESIGNATION/TERMINATION A Employee may resign at any time; provided, however, Employee shall reasonably provide the Public Works Director with at least thirty -days' advance written notice unless otherwise shortened by the Public Works Director. B. Employee is an at -will employee and serves at the will and pleasure of the City Manager and may be terminated at any time, with or without cause, and with or without notice, at any time by the City Manager C. In accordance with state law and the requirements of the California Public Employees Retirement Law, Employee may not be reappointed to this position following the expiration of this Agreement, nor may this Agreement be modified to extend the term of the Agreement. D. After notice of resignation or termination, Employee shall cooperate with the City, as requested by the City to effect a transition of Employee's responsibilities and duties and to ensure the City is aware of all matters being handled by Employee. 01181.0004/755588.1 MHUSTON_ALWY Page 3 of 7 E. Employee shall not be entitled to severance pay and Employee expressly waives any and all rights with respect to severance pay. Section 5. NOTICES Notices required to be served pursuant to this Agreement shall be served in person or by first-class U.S. mail addressed as follows: City City Manager City of Morro Bay 595 Harbor Street Morro Bay, California 93442 Employee Robert Livick Address on file with the City Section 6: GENERAL TERMS AND CONDITIONS The General Terms and Conditions of this Agreement are described as follows: A. Indemnification. To the extent mandated by the California Government Code, the City shall defend, hold harmless, and indemnify Employee against any tort, professional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of Employee's services under this Agreement. This section shall not apply to any intentional tort or crime committed by Employee, to any action outside the course and scope of Employee s employment, or any other intentional or malicious conduct or gross negligence of Employee. B. Entire Agreement. The text of this Agreement shall constitute the entire and exclusive agreement between the Parties regarding the subject matter hereof. All prior oral or written communications, understandings, or agreements between the Parties not set forth herein shall be superseded in total by this Agreement. No amendment or modification to this Agreement may be made except by a written agreement signed by the Employee and the City's City Manager and approved as to form by the City Attorney. C. Assignment. This Agreement is not assignable by either the City or Employee. D. Severability. In the event any provision of this Agreement is finally held or determined to be illegal or void by a court having jurisdiction over the Parties, the remainder of this Agreement shall remain in full force and effect unless the parts found to be illegal or void are wholly inseparable from the remaining portions of this Agreement. E. Effect of Waiver. The failure of either Party to insist on strict compliance with any of the terms covenants, or conditions in this Agreement by the other Party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of 01181.0004/755588.1 MHUSTON_ALWY Page 4 of 7 any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other time or times. F. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, which are in full force and effect as of the date of execution. Any action to interpret or enforce the terms of this Agreement shall be held exclusively in a state court in San Luis Obispo County California. Employee expressly waives any right to remove any such action from San Luis Obispo County. G. Effective Date. This Agreement shall not become effective until it has been signed by Employee and on behalf of the City. H. Effect of Agreement on Employee s Ca1PERS Retirement Benefits. The City makes no representation on the impact if any, this Agreement shall or may have upon his Ca1PERS retirement benefits status, duties, and/or obligations. Employee acknowledges that in entering into this Agreement, he has not relied upon any such representations (none of which being in existence) in assessing the Ca1PERS-related impact of his employment. Therefore, Employee releases the City from any and all Ca1PERS-related claims or liabilities that may arise in connection with his employment pursuant to this Agreement. I. No Unemployment Insurance Benefits Received By Employee. Employee expressly certifies and warrants to the City that he has not received any unemployment insurance payments for retired annuitant work for any public employer within the 12 months prior to his appointment date. J. Compliance With 960 Hours Per Fiscal Year Limit. Employee further certifies and warrants to the City his anticipated work schedule of 30 hours per week will not cause him to exceed the 960 hours per fiscal year limit pursuant to Government Code subdivision 21221(h), except as authorized under Executive Order N-12-21 and Ca1PERS Circular Letter 200-056-21. • K. Conflicts Prohibited. During the term of this Agreement, Employee shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of Employee's duties under this Agreement Employee shall comply with all requirements of law, including but not limited to, Sections 1090, 1125, and 87100 et seq. of the Government Code, and all other similar statutory and administrative rules. L. Independent Legal Advice. The City and Employee represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this Agreement or at least had the opportunity to do so, that each has carefully reviewed this entire Agreement, that each and every term thereof is understood and that the terms of this Agreement are contractual and not a mere recital. This Agreement shall not be construed against the Party or its representatives who drafted it or who drafted any portion thereof. M. Government Code '§ 53243 - 53243.4. Government Code §§ 53243 - 53243.4 sought to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. Those statutes also require contracts 01181.0004/755588.1 MHUSTON_ALWY Page 5 of 7 between local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency. Those statutes are incorporated herein by reference. Accordingly, the Parties agree it is their mutual intent to fully comply with the cited Government Code sections and all other applicable law as it exists as of the date of execution of this Agreement and as such laws may be amended from time to time thereafter. Specifically, the following Government Code sections are called out and hereby incorporated by this Agreement: §53243. Reimbursement of paid leave salary required upon conviction of crime involving office or position. §53243.1. Reimbursement of legal criminal defense upon conviction of crime involving office or position. §53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position. §53243.3. Reimbursement of noncontractual payments upon conviction or crime involving office or position. §53243.4. "Abuse of office or position" defined. Employee represents Employee has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to Employee. IN WITNESS WHEREOF, the City of Morro Bay has caused this Agreement to be signed and executed on its behalf by its City Manager, and approved as to form by the City Attorney, and executed by the Employee. Dated: Scott Collins, City Manager Attest: Amt.. ewtt_51."- Dana Swanson, City Clerk Approved as to form: C4rc9 nr Chris F. Neumer, City Attorney [Signatures continued on Page 7] 01181.0004/755588.1 MHUSTON_ALWY Page 6 of 7 [Signatures continued from on Page 6] EMPLOYEE, In signing this Agreement, Employee understands and agrees he is an at -will, part-time temporary employee and his rights to employment with the City are governed by the terms and conditions of this Agreement rather than the ordinances, resolutions, and policies of the City, which might otherwise apply to classified or other employees of the City. Employee further acknowledges he was given the opportunity to consult with an attorney prior to signing this Agreement. Dated: I 6 4_,aavtlotir f2JJZI Signed: ROBERT LI ICK 01181.0004/755588.1 MHUSTON_ALWY Page 7 of 7 CITY ENGINEER CITY OF MORRO BAY CITY ENGINEER JOB DESCRIPTION DEFINITION Under administrative direction of the Public Works Director to plan, organize and direct the City's Engineering Division of the Public Works Department; perform complex and professional engineering work for environmental, water, sewer, street, and other public works projects and programs ensuring technical competence and compliance with all current codes and criteria* supervise support staff serve as project manager as needed; and to do related work as required This position serves as the "City Official" designated to the Board of Professional Engineers Land Surveyors and Geologists of having "Responsible Charge" for all municipal Engineering and Land Surveying Activities. ESSENTIAL DUTIES & RESPONSIBILITIES 1. Plans, organizes and directs the activities in the Engineering Division. 2. Acts as City's Traffic Engineer, Floodplain Administrator and Surveyor. 3. Reviews private project development plans for compliance with codes, regulations, and standards ensures adequacy of applications for permits and compliance with approved plans in coordination with the Community Development Department. 4. Determines applicable codes, regulations, and requirements for assigned projects. 5. Coordinates the preparation of, or develops, engineering plans and specifications; coordinates required advertising for bids; reviews construction bids and makes necessary recommendations based on lowest and best bids, competency of contractors, vendors and consultants, and the selection criteria. 6. Provides project management for the construction of municipal public works projects; oversees assigned projects to ensure contractor compliance with time and budget parameters for the project. 7. Prepares sanitary wastewater, water, storm drainage, and street system maps, data bases, and comprehensive plans. 8. Maintains and approves the engineering standards and specifications and infrastructure records. 9. Assures as -built records of projects, and documents necessary changes for the operation and maintenance programs. 10. Responds to public or other inquiries relative to engineering requirements on specific projects and other information. 11. Reviews utility permits, street use (encroachment) permits, franchise utility permits, etc. 12. Maintains regular contact with consulting engineers, construction project engineers, City, County State and Federal agencies, professional and technical groups and the general public regarding division activities and services. CITY ENGINEER • 13. Assists in the evaluation of transportation and traffic impacts of development proposals, permits, rezones, plats, etc.; prepares traffic, utility and other studies and reports 14. Provides intersection signal and channelization design. 15. Develops the pavement management systems. 16. Coordinates sidewalk inspection, maintenance and enforcement programs. 17. Monitors inter -governmental actions affecting public works operations. 18. Assists in the training of other city personnel in public works design and construction techniques. 19. Assists in the management of departmental personnel including interviews, selection, training, evaluations, and discipline. 20. Performs related duties as required QUALIFICATIONS Knowledge of: Thorough knowledge of civil engineering principles, practices and methods as applicable to a municipal setting; considerable knowledge of applicable City policies, laws, and regulations affecting Division activities; considerable skill in arriving at cost estimates on complex projects; skill in operating the listed tools and equipment. Ability to: Ability to communicate effectively, orally and in writing, with employees, consultants, other governmental agency representatives, City officials and the general public; ability to conduct necessary engineering research and compile comprehensive reports. Education and Experience: Graduation from a four-year college or university with a degree in civil engineering or closely related field and minimum of four years previous professional civil engineering experience; or any equivalent combination of education and experience Must be physically capable of moving about on construction work sites and under adverse field conditions Possession and maintenance of a Registered Professional Civil Engineer license in the State of California. Desirable: Possession and maintenance of a Licensed Professional Land Surveyor license in the State of California. Must possess a valid California driver's license. CITY ENGINEER TOOLS & EQUIPMENT USED Personal computer including word processing, spreadsheet, and data base and computer -aided - design software standard drafting tools; surveying equipment including level, theodolite and electronic distance measuring devices; motor vehicle; telephone; mobile radio; fax and copy machine. PHYSICAL DEMANDS The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Work is performed mostly in office settings. Some outdoor work is required in the inspection of various land use developments, construction sites, or public works facilities. Hand -eye coordination is necessary to operate drafting instruments, computers and various pieces of office equipment. While performing the duties of this job, the employee is occasionally required to stand; walk; use hands to finger, handle feel or operate objects, tools, or controls; and reach with hands and arms. The employee is occasionally required to site; climb or balance; stoop, kneel, crouch, or crawl; talk or hear; and smell. WORK ENVIRONMENT The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. While performing the duties of this job, the employee occasionally works in outside weather conditions. The employee occasionally works near moving mechanical parts and in high, precarious places and is occasionally exposed to wet and/or humid conditions fumes or airborne particles, toxic or caustic chemicals, risk of electrical shock, and vibration. The noise level in the work environment is usually quiet to moderate. SELECTION GUIDELINES Formal application, rating of education and experience, oral interview and reference check; job related tests may be required. The duties listed above are intended only as illustrations of the various types of work that may be performed. The omission of specific statements of duties does not exclude them from the position if the work is similar, related or a logical assignment to the position. CITY ENGINEER The job description does not constitute an employment agreement between the employer and employee and is subject to change by the employer as the needs of the employer and requirements of the job change. Approved by the Morro Bay City Council on January 10, 2000. Revisions approved by the Morro Bay City Council on March 10, 2020.