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HomeMy WebLinkAbout13 - Amendment to Temporary Employment AgreementQ �EwPpRT CITY OF s NEWPORT BEACH `q44:09 City Council Staff Report August 23, 2022 Agenda Item No. 13 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Tonee Thai, Deputy Community Development Director -Building/ Chief Building Official, tthai@newportbeachca.gov PHONE: 949-718-1867 TITLE: Amendment No. One to Temporary Employment Agreement with Soon Cho ABSTRACT: For the City Council's consideration is Amendment No. One to extend, by one more year, a temporary employment agreement with Soon Cho, a retired City of Newport Beach (City) employee. Mr. Cho will provide building code plan check service to the Community Development Department (Department). The extended agreement will limit hours worked to 960 and the agreement is of a limited duration. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Authorize the Mayor and the Community Development Director to execute Amendment No. One to the Post Retirement Temporary Employment Agreement with retired employee Soon Cho. DISCUSSION: The City Council approved the original Post Retirement Temporary Employment Agreement with Mr. Cho on October 12, 2021, consistent with City Council Policy F-20, which requires the City Council to consider any contract with a person formerly employed by the City within the past five years. Mr. Cho's contract is due to expire on September 30, 2022, unless extended. Staff proposes to extend Mr. Cho's contract one additional year until September 30, 2023. The Department seeks to extend the employment agreement with Mr. Cho on a part-time basis to continue assisting the Department with building code plan check services due to three vacant civil engineering positions. 13-1 Amendment No. One to Temporary Employment Agreement with Soon Cho August 23, 2022 Page 2 Mr. Cho was a long -tenured and well -respected City employee. He worked for the City for over 12 years, and he is very familiar with its policies, codes, procedures, and staff. He retains the necessary knowledge, skills and training to perform the duties to help the Department maintain a high level of customer service and no training will be required. In accordance with Government Code Section 7522.56, the City has met the following requirements: 1. Waited in excess of 180 days since the employee's retirement under PERS rules. 2. Ensured the employee is not earning less than the minimum, nor exceeding the maximum of other employees in the classification. 3. Mr. Cho has certified that he has not received unemployment insurance compensation arising out of prior employment with a public employer during the last 12 months. The amended Agreement will be in compliance with Council Policy F-20: 1. On August 23, 2022, the City will engage Mr. Cho at $72.34 per hour; the amount is within the pay range for a Senior Civil Engineer employed by the City. 2. Mr. Cho will not be authorized to work or receive overtime pay. FISCAL IMPACT: The adopted budget includes sufficient funding for this expense. It will be expensed to the Community Development Department, part-time salary budget account 0105042- 711003. Additionally, there will be salary savings due to vacant positions that will off -set the cost of the agreement. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Amendment No. One to Temporary Employment Agreement Attachment B — Original Temporary Employment Agreement 13-2 Attachment A Amendment No. 1 to Post Retirement Temporary Employment Agreement 13-3 AMENDMENT NO. ONE TO POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT WITH SOON CHO FOR SENIOR CIVIL ENGINEER SERVICES THIS AMENDMENT NO. ONE TO POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT ("Amendment No. One") is made and entered into as of this 23rd day of August, 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SOON CHO ("Employee"), and is made with reference to the following. - RECITALS A. On October 12, 2021, City and Employee entered into a Post Retirement Temporary Employment Agreement ("Agreement") for temporary Senior Civil Engineer employment ("Position"). B. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to September 30, 2023 and to update the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on October 12, 2021, or earlier as directed, in writing, by the Community Development Director, and shall end September 30, 2023, unless terminated earlier as set forth herein." 2. COMPENSATION Section 3.1.3 shall be added to the Agreement as follows: "3.1.3 As of August 23, 2022, the compensation amount in Section 3.1.1 is increased to Seventy -Two Dollars and 341100 ($72.34) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to State and Federal income tax withholdings. $72.34 per hour shall be considered just compensation and no additional benefits or holiday pay will be provided under this Agreement." 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Soon Cho Page 1 13-4 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Seimone Jurjis Community Development Director APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: a - 3 l2 2 By:. "�Aaro C. H ft�/ Attorn ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Kevin Muldoon Mayor EMPLOYEE: Soon Cho Date: By: Soon Cho [END OF SIGNATURES] -..Gv dS:.c���ffied6V& 5 ' ":14a. cfSW.�d'a<3k rAKb�q'ES �4kxc4 ,4+CztiS"r.:t�S 5 �F'^��'i.� .N9:n1Y.�:-tin_:r. RY Soon Cho Page 2 13-5 ATTACHMENT B POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT WITH SOON CHO FOR SENIOR CIVIL ENGINEER SERVICES THIS AGREEMENT FOR POST RETIREMENT TEMPORARY EMPLOYMENT ("Agreement") is made effective as of the 12th day of October 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City") and SOON CHO ("Employee") whose mailing address is 127 Toretta, Irvine, California 92602, with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. City requires temporary Senior Civil Engineer services. C. In accordance with Government Code Section 21224(a), a retired person may serve without reinstatement from retirement or loss or interruption of benefits provided by this system upon appointment by the appointing power of a state agency or public agency employer either during an emergency to prevent stoppage of public'business or because the retired person has specialized skills needed in performing work of limited duration. These appointments shall not exceed a combined total of 960 hours for all employers each fiscal year. The compensation for the appointment shall not exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on a publicly available pay schedule divided by 173.333 to equal an hourly rate. A retired person appointed pursuant to this section shall not receive any benefit, incentive, compensation in lieu of benefits, or other form of compensation in addition to the hourly pay rate. A retired annuitant appointed pursuant to this section shall not work more than 960 hours each fiscal year regardless of whether he or she works for one or more employers. D. The City desires to employ Employee on a provisional "at will" basis and to enter into an Agreement with Employee for temporary Senior Civil Engineer employment ("Position") services upon the terms and conditions in this Agreement. E. Employee is willing to accept such temporary employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 13-6 1. TERM The term of this Agreement shall commence on October 12, 2021, or earlier as directed, in writing, by the Community Development Director, and shall end September 30, 2022, unless terminated earlier as provided herein. 2. SERVICES TO BE PERFORMED BY EMPLOYEE 2.1 Services shall include the following: Senior Civil Engineer, as further described in the Job Description attached hereto as Exhibit A and incorporated herein by reference. 2.2 All duties shall be performed in compliance with City ordinances, policies, rules and regulations. Employee shall familiarize him or herself with the City's Employee Manual. At all times, Employee agrees to perform all services related to Employee's employment hereunder faithfully and diligently and to discharge the responsibilities thereof to the best of Employee's ability. 3. COMPENSATION 3.1 As consideration for the performance of specified services under this Agreement, Employee shall be compensated as follows: 3.1.1 Pay of Seventy Dollars and 92/100 ($70.92) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to State and Federal income tax withholdings. $70.92 per hour shall be considered just compensation and no additional benefits or holiday pay will be provided under this Agreement. 3.1.2 Employee shall maintain and submit complete records of time expended pursuant to this Agreement and corresponding to City's payroll schedule. 4. HOURS 4.1 Hours of work are not guaranteed. Employee's services will be provided on an as needed, per project basis, upon written request of the Department Director or City Manager. Hours of work shall not exceed 30 hours per week. 4.2 It is expressly understood that Employee is a nonexempt Employee and employment is for a provisional, "at will" position. 4.3 Notwithstanding any federal and state laws, regulations or orders, Employee shall not work more than 960 hours during the term of the Agreement in accordance with CaIPERS post retirement employment guidelines. The Employee shall be responsible for monitoring the hours worked during these time periods to ensure full compliance. loyee shall not work more than 960 hours during the term of the Agreement in accordance with CalPERS post retirement employment guidelines. The Employee shall be responsible for monitoring the hours worked during these time periods to ensure full compliance. Soon Cho Page 2 13-7 5. ADMINISTRATION This Agreement will be administered by the Community Development Department. City's Community Development Director or designee shall be the Administrator and shall have the authority to act for City under this Agreement. The Administrator shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 6. NOTICES 6.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. 6.2 All notices, demands, requests or approvals from Employee to City shall be addressed to City at: Attn: Seimone Jurjis Community Development Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 6.3 All notices, demands, requests or approvals from City to Employee shall be addressed to Consultant at: Soon Cho 127 Toretta Irvine, CA 92602 7. TERMINATION 7.1 Employee's employment is "at will" which means that Employee's employment with City may be terminated at any time, with or without cause, by either party by giving 24 hours prior written notice to the other party. 7.2 Provisional Employee shall mean any person who, pursuant to an Appointment, contract or otherwise, performs work that is generally identified in the Annual Budget and is of limited duration or seasonal in nature. 7.3 Employee's employment status cannot be changed except in writing on a form signed by the Department Director, City Manager and Employee. 7.4 Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from the temporary position with the City. Soon Cho Page 3 13-8 7.5 No promises or representations regarding regular, full time or permanent employment status have been made to Employee and Employee has no expectation of permanent employment with the City. Furthermore, Employee has no expectation of Civil Service classification, rights or status under this Agreement. 7.6 Upon termination of this Agreement, the City shall pay to Employee that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 8. EFFECT OF PRIOR AGREEMENTS This Agreement supersedes any prior agreement between the City and the Employee, except that this agreement shall not affect or operate to reduce any benefit or compensation inuring to the Employee of a kind elsewhere provided and not expressly provided in this Agreement. 9. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Employee, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Employee or any other party. 10. CONFIDENTIALITY Employee shall hold and safeguard confidential information in trust for the City and shall not, without the prior written consent of the City, misappropriate or disclose or make available to anyone for use outside the City at any time, either during his employment with the City or subsequent to the termination of his employment with the City for any reason, including, without limitation, termination by the City for cause or without cause, any confidential information, whether or not developed by Employee, except as required in the performance of Employee's duties to the City. All documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 11. CONFLICTS OF INTEREST 11.1 The Employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 11.2 If subject to the Act, Employee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Soon Cho Page 4 13-9 12. OUTSIDE ACTIVITIES 12.1 Employee is expected to devote his/her full time, attention and efforts to the performance of his or her assigned duties. An Employee shall not engage in any outside employment or business activities during his/her workday. An Employee shall not engage in any employment, outside activity, or enterprise that is inconsistent, incompatible or in conflict with, or that interferes with, his/her ability to perform the duties, functions, or responsibilities of his/her Position. 12.2 Employees may obtain and/or maintain employment with persons or entities other than the City or self-employment (outside employment) subject to written approval by the Department Director. 13. STANDARD PROVISIONS 13.1 Recitals. City and Employee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 13.2 Compliance with all Laws. Employee shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Employee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Department Director and City. 13.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Job Description or any other attachments attached hereto, the terms of this Agreement shall govern. 13.4 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 13.5 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 13.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Employee and City and approved as to form by the City Attorney. Soon Cho Page 5 13-10 13.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 13.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 13.10 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 13.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Soon Cho Page 6 13-11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. CITY OF NEWPORT BEACH, a California municipal corporation Date: By: �� lea� Seimone Jurji Community Development Director APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date A L( By: 0AY(4,) ron C. Harp a,\ ity Attorney ATTEST: Date: r By: h-sw Leilani I. Brown City Clerk Attachments: Exhibit A: Job Description CITY OF NEWPORT BEACH, a California municipal corporation Date: By: B d very Mayor EMPLOYEE: Soon Cho Date: /0 ),5 Z-,Cj �:j • • EW y FP [END OF SIGNATURES] Soon Cho Page 7 13-12 EXHIBIT A JOB DESCRIPTION Soon Cho Page A- 1 13-13 9/9/21, 10:46 AM City of Newport Beach - Class Specification Bulletin City of Newport Beach CITY OF NEWPORT BEACH Revision Date: Jul 30, 2014 DEFINITION: CIVIL ENGINEER, SENIOR Bargaining Unit: Professional & Technical Association SALARY RANGE $51.71 - $72.74 Hourly $4,136.77 - $5,819.04 Biweekly $8,963.00 - $12,607.92 Monthly $107,555.97 - $151,295.04 Annually Class Code: 400098 To perform advanced level professional engineering work in an area of assignment; to provide technical and some direct supervision to professional and technical engineering staff; and to provide responsible staff assistance to management staff. DISTINGUISHING CHARACTERISTICS: This is the beginning level technical/supervisor class in the registered professional engineering series. Positions assigned to this class can be distinguished from lower level engineering classes by performance of complex engineering tasks requiring a high degree of knowledge related to all areas of design, plan review and contract administration. Positions assigned to this class can be further distinguished from lower level engineering classes by the performance of lead supervisory activities such as assigning work, monitoring project progress and providing technical assistance and training to other professional and technical staff. This class can be distinguished from higher level engineering classes by limited supervisory responsibility for an assigned section and by assignment of less complex projects. SUPERVISION RECEIVED AND EXERCISED: Receives direction from higher level management staff. Exercises technical and functional supervision over professional, technical and clerical staff. May exercise direct supervision over assigned professional staff. ESSENTIAL DUTIES: The following essential functions are typical for this classification. Incumbents may not perform all of the listed functions and/or may be required to perform additional or different functions from those below, to address business needs and changing business practices: • Provide lead supervision to professional and technical engineering staff; assign daily work and monitor work progress; evaluate work in progress and provide training and technical assistance; • Plan work schedules and project assignments; • Resolve work problems and interpret administrative policies to subordinates, other departments, consultants, contractors and the public; • Coordinate Section activities with those of other departments and outside agencies and organizations; • Provide information to the public; respond to and resolve citizen inquiries and complaints; https:Hagency.govemmentjobs.com/newportbeach/default.cfm?action=specbuiletin&ClassSpeclD=45104&headerfooter-0 1/4 13-14 9/9121, 10:46 AM City of Newport Beach - Class Specification Bulletin • Plan, organize, evaluate, and participate in the functions and activities of the section to which assigned including design, cooperative projects, plan review and capital improvement projects; • Assist in negotiation of right of way agreements, professional services agreement, and cooperative agreements; • Prepare requests for proposals, and contracts for consulting services; review and check plans of consulting engineers and private contractors; make technical engineering decisions and establish technical criteria; • Provide information to the public; respond to and resolve citizen inquiries and complaints; • Process and coordinate underground utility districts with service providers, engineers and property owners; coordinate construction inspection of projects; process records of easements, rights -of -way easements, records of survey and certificates of compliance; • Check plans for complex projects to determine compliance with applicable codes; check engineering methods used in building design and verify accuracy of structural calculations; check plans and reports for conformance with subdivision improvement plans; tract and parcel maps; grading, street improvement, storm drains, underground utility and landscape plans, drainage and soils reports and other applicable criteria; review City Encroachment Permits, Street Closure Permits, site plans, Special Events Permits and Caltrans encroachment permits for conformance with City standards and state and federal regulations; • Calculate the quantity, quality and cost of materials; prepare plans and specifications related to assigned project; • Coordinate or perform the construction inspection of assigned projects, ensure conformance with contract plans, specifications and applicable codes; approve progress payments; approve change orders as needed; • Administer, design, and review assigned projects; ensure compliance with codes and local regulations; • Direct the preparation and filing of deeds, maps and legal descriptions as needed; • Process assessment district proceedings for Public Works projects; • Regularly and predictably attend work; and • Perform related duties as assigned. QUALIFICATIONS: To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below are representative of the knowledge, skill, and/or ability required. Knowledge of: Principles and practices of civil engineering; Pertinent Federal, State and local rules, regulations and ordinances; Recent developments, current literature and sources of information regarding civil and https://agency.governmentjobs.com/newportbeach/default.cfm?action=speebulletin&ClassSpeclD=45104&headerfooter=0 2/4 13-15 9/9/21, 10:46 AM City of Newport Beach - Class Specification Bulletin structural engineering; Basic principles and practices of project management; Principals of supervision and training; and Methods, materials, and techniques used in the construction of public works projects. Ability to: Prepare plans and drawings neatly and accurately; Make engineering design computations and check, design, and prepare engineering plans; Understand and interpret engineering construction plans, specifications and other contract documents; Perform technical research and solve difficult engineering problems; Manage a broad range of engineering projects including supervision of professional, technical and consulting staff; Prepare contracts, agreements, specifications and contract documents; Conduct comprehensive engineering studies and prepare reports with appropriate recommendations; Ensure project compliance with State, Federal and local rules, laws and regulations; Prepare and monitor a program budget; Interpret and apply pertinent laws, rules and regulations; Provide lead supervision and training to assigned personnel; Communicate clearly and concisely, both orally and in writing; and Establish and maintain cooperative working relationship with those contacted in the course of work. This position may be required to work overtime hours as needed. EXPERIENCE & EDUCATION AND LICENSE/CERTIFICATE: A combination of experience and education that would likely provide the required knowledge and abilities may be qualifying. A typical way to obtain the knowledge and abilities would be: Experience: Four years of increasingly responsible professional civil engineering experience including some project management responsibilities. Education: Equivalent to a Bachelor's degree from an accredited college or university with major course work in civil engineering or a related field. License/Certificate: Due to the performance of some field duties which require the operation of a personal or City vehicle, a valid and appropriate California driver's license and an acceptable driving record are required. https:/lagency.governmentjobs.com/newportbeach/default.cfm?action=speebuiletin&ClassSpeclD=45104&headerfooter=0 3/4 13-16 9/9/21, 10:46 AM City of Newport Beach - Class Specification Bulletin Possession of a Certificate of Registration as a professional civil engineer in the State of California. Please Note: Candidates deemed most qualified, as reflected in their application materials, will be invited to continue in the recruitment process. The prospective candidate must successfully complete a thorough background review, including being fingerprinted by the Newport Beach Police Department. The resulting report of your conviction history, (if any), will be evaluated along with the other information received in connection with your application. Except as otherwise required by law, a criminal conviction will not necessarily disqualify you from the position. The nature, date, surrounding circumstances, and the relevance of the offense to the position applied for may, however, be considered. Disaster Service Worker: In accordance with Government Code Section 3100, City of Newport Beach Employees, in the event of a disaster, are considered disaster service workers and may be asked to respond accordingly. https://agency.governmentjobs.com/newportbeach/default.cfm?action=specbulletin&ClassSpeclD=45104&headerfooter=0 4/4 13-17