CC – 2023-68 – Appointing a Retired Annuitant to the Position of Interim City Engineer for a Limited Duration Pursuant to Government Code Section 21221 (h)RESOLUTION NO. 2023-68
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ROSEMEAD APPOINTING A RETIRED ANNUITANT
TO THE POSITION OF INTERIM CITY ENGINEER FOR
A LIMITED DURATION PURSUANT TO GOVERNMENT
CODE SECTION 21221(h)
WHEREAS, in compliance with Government Code Section 21221(h) of the Public
Employees' Retirement Law, the City of Rosemead must provide Ca1PERS this certification
resolution when hiring a retiree; and
WHEREAS, Albert Leung is a retired annuitant as further detailed in the Employment
Agreement attached hereto as Exhibit A; and
WHEREAS, the Rosemead City Council, the City of Rosemead and Albert Leung certify
that Albert Leung has not and will not receive a Golden Handshake or any other retirement -related
incentive; and
WHEREAS, the Rosemead City Council hereby appoints Albert Leung as an interim
retired annuitant to the vacant position of Interim City Engineer for the City of Rosemead under
Government Code Section 21221(h), effective November 14, 2023; 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 that the job opening for the permanent
position has been publicly posted, applications are being accepted and candidates are being
reviewed; and
WHEREAS, this Section 21221(h) appointment shall only be made once and therefore
will end no later than June 30, 2024 and as further detailed in the Employment Agreement attached
hereto as Exhibit A; and
WHEREAS, the entire employment agreement, contract or appointment document
between Albert Leung and the City of Rosemead has been reviewed by this body and is attached
hereto as Exhibit A 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 may
be exempted under the Governor's State of Executive Order N-25-20; and
WHEREAS, the compensation paid to retirees cannot be less 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 base salary for the position of City Engineer as listed on a
publicly available pay schedule is $12,930 per month and the hourly equivalent is $74.5962, and
the minimum base salary for this position is $9,909 per month and the hourly equivalent is
$57.1673; and
WHEREAS, the hourly rate paid to Albert Leung will be $74.5962 per hour; and
WHEREAS, Albert Leung 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
as so provided in Government Code § 21221(h) and related Ca1PERS regulations and policy
statements; and
WHEREAS, the expenses related to the of hiring the Retired Annuitant have no net impact
to the General Fund, as the salary for this position is included in the adopted Fiscal Year 2023-24
budget.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rosemead
hereby certifies the nature of the appointment of Albert Leung as described herein and that this
appointment is necessary to fill the critically needed position of Interim City Engineer for the City
of Rosemead by November 14, 2023 because the City has a vacancy in this permanent position and
the City needs to ensure adequate staffing during this state of emergency.
PASSED, APPROVED AND ADOPTED, this 14th day of November, 2023.
APPROVED AS TO FORM:
� 'e (a;D
achel Richman, City Attorney
4-4t�
S even Ly, Ma or
ATTEST:
Ericka Hernandez, City Cleric
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) §
CITY OF ROSEMEAD )
I, Ericka Hernandez, City Clerk of the City Council of the City of Rosemead, California,
do hereby certify that the foregoing City Council Resolution No. 2023-68, was duly adopted
by the City Council of the City of Rosemead, California, at a regular meeting thereof held on
the 14a' day of November, 2023, by the following vote, to wit:
AYES: ARMENTA, CLARK, DANG, LOW, LY
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
� I;*-
Ericka Hernandez, City Clerk
RETIRED ANNUITANT EMPLOYMENT AGREEMENT
FOR THE POSITION OF INTERIM CITY ENGINEER
CITY OF ROSEMEAD
This Retired Annuitant Employment Agreement ("AGREEMENT") is made and entered
into by and between the CITY OF ROSEMEAD, a Municipal Corporation of the State of
California ("CITY"), and Albert Leung ("Leung"), an individual, on the following terms and
conditions:
RECITALS
A. CITY lost their City Engineer;
B. Beginning on May, 2023 the CITY commenced a recruitment for the permanent
position of City Engineer;
C. The vacancies of engineering staff, including the City Engineer and Director of
Public Works in the past few months has placed significant strains on the City especially in the
Public Works Department, resulting in service gaps, a lack of consultant oversight, and delays in
the execution of the Capital Improvement Projects;
D. The CITY requires assistance within the Public Works Department to provide
supervision for engineering staff, oversee consultants, and manage Capital Improvement Projects
while the City recruits to permanently fill the permanent position of City Engineer;
E. LEUNG has over 30 years of professional experience, with 21 years in public sector
executive management overseeing Capital Improvement Programs. LEUNG retired in 2017 and is
uniquely qualified and has the requisite specialized skills, training and experience to serve as
Interim City Engineer for the CITY;
F. CITY desires to employ the specialized services of LEUNG as Interim City
Engineer for CITY in consideration of and subject to the terms, conditions, and benefits set forth
in this AGREEMENT and State Law;
G. LEUNG desires to accept Retired Annuitant employment as Interim City Engineer
in consideration of and subject to the terms, conditions, and benefits set forth in this
AGREEMENT and State Law;
H. LEUNG represents that he is a retired annuitant of the California Public
Employees' Retirement System ("CalPERS") within the meaning of Government Code § 21221(h)
as of the effective date of this AGREEMENT. LEUNG represents that he retired from the
CalPERS system at least 180 days prior to the effective date of this agreement. LEUNG
acknowledges that he is restricted to working no more than a combined 960 hours for CITY, a
state agency, or other CalPERS contracting agencies (collectively "CalPERS Agencies") during
CITY'S 2023-2024 fiscal year except as may be exempted under the Governor's State of Executive
Order N-25-20 which exempts Retired Annuitants from the 960 hour combined maximum with
1
proper notifications, and that his compensation is statutorily limited as provided in Government
Code § 21221(h). LEUNG represents that he has not received any unemployment compensation
from any Ca1PERS Agencies during the 12 -month period preceding the effective date of this
AGREEMENT, that he has not received a retirement incentive upon retirement within the meaning
of Government Code § 7522.56(g), and that he has attained normal retirement age within the
meaning of Government Code § 21220.5;
I. This AGREEMENT was approved by CITY'S City Council as a regular agenda
item at a Council meeting held on November 14, 2023.
OPERATIVE PROVISIONS
THEREFORE, in consideration of the above recitals and promises and conditions
contained herein, CITY and LEUNG mutually agree as follows:
1. Position and Duties.
1.1 Position. LEUNG accepts retired annuitant employment with CITY as Interim
City Engineer and shall perform all functions, duties and services of set position set forth in City
Code and by direction of the Director of Public Works. LEUNG shall provide service at the
direction and under the supervision of the Director of Public Works. It is the intent of the parties
that LEUNG, as the City Engineer, shall keep the Director of Public Works fully apprised. Toward
that end, LEUNG shall report directly to the Director of Public Works and will periodically, or as
may be otherwise specifically requested by the Director, provide status reports to the Director on
his activities and those of the CITY.
1.2 Term. This AGREEMENT commences and is effective on November 14, 2023
("COMMENCEMENT DATE") after being approved by the City Council and executed by
LEUNG and CITY'S Director of Public Works. Subject to the provisions set forth in Section 3
[Termination], LEUNG shall be employed in the position of City Engineer for a tern commencing
on the COMMENCEMENT DATE. This AGREEMENT shall expire as of the first of the
following to occur: (i) 6:00 p.m. on June 30, 2024 (ii) upon LEUNG working the maximum
number of hours allowed by CalPERS in a fiscal year; or (iii) upon termination of the
AGREEMENT by either LEUNG or CITY as provided in Section 3 [Termination] of this
AGREEMENT.
1.3 At -Will. LEUNG acknowledges that he is an at -will employee of CITY who shall
serve at the pleasure of the City at all times during the period of his service hereunder and that his
employment may be terminated at any time for any or no reason with or without cause as provided
in Section 3 [Termination] of this AGREEMENT and/or by operation of California or federal law.
Nothing in this AGREEMENT is intended to, or does, confer upon LEUNG any right to any
property interest in continued employment, or any due process right to a hearing before or after a
decision by CITY to terminate his employment, except as is expressly provided in Section 3
[Termination] of this AGREEMENT and/or by operation of California or federal law. Nothing
contained in this AGREEMENT shall in any way prevent, limit or otherwise interfere with the
right of CITY to terminate the services of LEUNG as provided in Section 3 [Termination].
Nothing in the AGREEMENT shall prevent, limit or otherwise interfere with the right of LEUNG
04
to resign at any time from the position with CITY, subject only to the provisions set forth in Section
3 [Termination] of this AGREEMENT. The terms of the CITY'S personnel rules, policies,
procedures, ordinances, resolutions, or Municipal Code (collectively "PERSONNEL POLICIES")
shall not apply to LEUNG to the extent such PERSONNEL POLICIES conflict with this
Agreement.
1.4 Duties. LEUNG agrees to provide the follow services: Under the administrative
direction of the Director of Public Works LEUNG will provide INTERIM CITY ENGINEER
services to the City's Public Works Department and the City on an as -needed basis. LEUNG will
also perform all other legally permissible and proper duties and functions consistent with the City
of Rosemead Public Works Department, including those set forth in the Rosemead Municipal
Code, the Personnel Rules and Regulations, and as the Director of Public Works shall assign from
time to time.
1.5 Hours of Work. LEUNG shall devote the time necessary to adequately perform
his duties as INTERIM CITY ENGINEER. The parties anticipate that LEUNG will work up to
40 hours per week during regular City Hall business hours or as mutually agreed by LEUNG and
the Director of Public Works. However, in no event shall LEUNG be required or permitted to work
in excess of 960 hours during any fiscal year except as may be exempted under the Governor's
State of Executive Order N-25-20 which exempts Retired Annuitants from the 960 hour combined
maximum with proper notifications.
1.6 Other Activity. In accordance with Government Code Section 1126, during the
period of his employment, LEUNG shall not accept, except current non-government clients, any
other work without the express prior written consent of the Director of Public Works, any other
employment or engage, directly or indirectly, in any other business, commercial, or professional
activity (except for Professional Activity or Educational Activities), whether or not for pecuniary
advantage, that is or may be competitive with CITY, that might cause a conflict-of-interest with
CITY, or that otherwise might interfere with the business or operation of CITY or the satisfactory
performance of LEUNG'S duties as CITY ENGINEER.
1.7 Reimbursement. CITY shall reimburse LEUNG for reasonable and necessary
business expenses incurred by LEUNG in the performance of his duties. All reimbursements
require prior approval by the Director of Public Works or are reimbursable under City policies and
shall be subject to and in accordance with California and federal law.
2. Compensation.
2.1 Rate of Pay. For all services performed by LEUNG as the Interim CITY
ENGINEER under this AGREEMENT, CITY shall pay LEUNG compensation at the maximum
rate of the salary range which is currently $74.5962) per hour. Such compensation shall be payable
according to the scheduled paydays for CITY personnel.
2.2 Compliance with CalPERS Requirements. It is the intent of the parties to
compensate LEUNG only to the extent permitted under Government Code § 21221(h) and
corresponding CaIPERS regulations and policy statements. The Rate of Pay set forth above is
based on the salary limitations established by CalPERS. The monthly base salary for the position
3
of Interim City Engineer as listed on a publicly available pay schedule is a minimum of $9,909
and a maximum of $12,930. The Rate of Pay is calculated by taking a monthly base salary of
$12,930 and dividing it by 173.333 to equal an hourly rate of $74.5962.
2.3 Recordation and Reporting of Hours Worked. LEUNG will comply with all
applicable CalPERS rules and regulations governing employment after retirement, including the
recordation and reporting of all hours worked for CITY to Ca1PERS as may be required. CITY
shall assist in any such reporting obligation to CalPERS. Additionally, LEUNG shall keep CITY
continually informed of any hours worked by LEUNG for other CalPERS Agencies during the
term of this Agreement.
2.4 Benefits. Pursuant to Government Code § 21221(h) and related CalPERS
regulations and policy statements, LEUNG shall not receive from CITY any benefits CITY
commonly provides to its employees including, without limitation, medical, dental, vision, long
term disability, life insurance, deferred compensation, except for Worker's Compensation
Insurance coverage, social security, Medicare, or similar benefits required by state or federal law,
or any paid personal time off such as vacation, sick leave, administrative leave, paid holidays or
similar leave benefits.
3. Termination.
3.1 By City. CITY may terminate LEUNG for any reason, and at any time, with or
without cause, during the term of the AGREEMENT, by providing LEUNG with written notice
five (5) working days before said termination date, by the CITY'S Director of Public Works.
CITY'S only obligation in the event of such termination will be payment to LEUNG of all
compensation then due and owing as set forth in Section 2.1 [Rate of Pay] up to and including the
effective date of termination.
3.2 By Employee. LEUNG may terminate his employment for any reason, and at any
time, with or without cause, during the term of the AGREEMENT, by providing the Director of
Public Works with seven (7) days advance written notice. CITY shall have the option, in its
complete discretion, to make LEUNG'S termination effective at any time prior to the end of such
period, provided CITY pays LEUNG all compensation as set forth in Section 2.1 [Rate of Pay]
then due and owing him through the last day of LEUNG'S notice. LEUNG shall not be entitled to
any other severance under the AGREEMENT. It is understood and agreed that any notice of
termination should be given as soon as practicable and in the best interest of the CITY.
3.3 No Notice for Expiration. Nothing in Section 3 [Termination] shall be construed
to require either LEUNG or CITY to give advance written notice in order for the AGREEMENT
to expire as set forth in Section 1.2 [Term].
3.4 Termination Obligations. LEUNG agrees that all property, all equipment, and
other City Property, City Proprietary Information (as described Section 4) City records, and
contracts shall be returned promptly to CITY upon termination of LEUNG'S employment.
LEUNG'S obligations under this subsection shall survive the termination of his employment
and/or the expiration of this AGREEMENT.
4. Proprietary Information.
C!
"Proprietary Information" is all non-public information pertaining in any manner to the
business of CITY (or any CITY affiliate), its employees, clients, consultants, or business
associates, which was produced by any employee of CITY in the course of his employment or
otherwise produced or acquired by or on behalf of CITY. Proprietary Information shall include,
without limitation, trade secrets, confidential financial data and formulae, attorney client -
privileged information, confidential licensing information, software and other computer programs,
copyrightable material, and other information exempt from production under the California Public
Records Act and or the Federal Freedom of Information Act. All Proprietary Information not
generally known outside of CITY's organization, and all Proprietary Information so known only
through improper means, shall be deemed "Confidential Information." During his employment by
CITY, LEUNG shall use Proprietary Information, and shall disclose Confidential Information,
only for the benefit of CITY and as is or may be necessary to perform his job responsibilities under
this AGREEMENT. Following termination, LEUNG shall not use any Proprietary Information
and shall not disclose any Confidential Information, except with the express written consent of
CITY. LEUNG's obligations under this Section shall survive the termination of his employment
and the expiration of this AGREEMENT. A disclosure of Proprietary Information or Confidential
Information by LEUNG in response to an order by a court of competent jurisdiction or in response
to a subpoena by a Grand Jury or any state, federal or local law enforcement agency shall not be
deemed a breach of this AGREEMENT.
5. Conflict Of Interest.
LEUNG represents and warrants to CITY that, to the best of his knowledge, he presently
has no interest, and represents that he will not acquire any interest, direct or indirect, financial or
otherwise, which would conflict in any manner or interfere in any way with performance of his
services under this AGREEMENT.
6. General Provisions.
6.1 Recitals. The recitals, inclusive of all facts and representation, are incorporated
into this AGREEMENT as if set forth in the Operative Provisions.
6.2 Notices. All notices, requests, demands and other communications under this
AGREEMENT shall be in writing and shall be effective upon delivery by hand or four (4) business
days after deposit in the United States mail, postage prepaid, certified or registered, and addressed
to CITY at the address below, and/or to the last known address maintained in LEUNG' S personnel
file. LEUNG agrees to notify CITY in writing of any change in his address during his employment
with CITY. Notice of change of address shall be effective only when accomplished in accordance
with this Section.
CITY's Notice Address:
City of Rosemead
City Hall, Attn: City Manager
8838 E. Valley Blvd.
Rosemead, CA 91770
LEUNG'S Notice Address:
9
[Address on file with Human Resources]
6.3 Indemnification. In accordance with and to the extent provided by California's
Tort Claims Act (Government Code Section 825 et seq.) and Government Code Section 995-996.6,
CITY shall defend and indemnify LEUNG against and for all losses sustained by LEUNG arising
out of an act or omission occurring within the scope of his employment under this AGREEMENT.
6.4 Bonding. CITY shall bear the full cost of any fidelity or other bond required of the
City Engineer under any law or ordinance.
6.5 Merger, Integration and Modification. This AGREEMENT is intended to be the
final, complete, and exclusive statement of the terms of LEUNG' S Retired Annuitant employment
by CITY under this AGREEMENT. This AGREEMENT supersedes all other prior and
contemporaneous agreements and statements, whether written or oral, express or implied,
pertaining in any manner to the employment of LEUNG, and it may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To the extent that the
practices, policies, or procedures of CITY, now or in the future, apply to LEUNG and are
inconsistent with the terms of this AGREEMENT, the provisions of this AGREEMENT shall
control. This AGREEMENT may be modified only in a writing approved by the City Manager
and signed by all the parties.
6.6 Waiver. Either party's failure to exercise any right under this AGREEMENT shall
not constitute a waiver of such right. Waiver by any party hereto of any term, condition, or
covenant of this AGREEMENT shall not constitute the waiver of any other term, condition, or
covenant hereof.
6.7 Assignment. Neither this AGREEMENT, nor any interest in it, may be assigned
or transferred by any party without the prior written consent of all the parties. Any such assignment
will be subject to such terms and conditions as CITY may choose to impose.
6.8 Severability. In the event any portion of this AGREEMENT is declared void, such
portion shall be severed from this AGREEMENT and the remaining provisions shall remain in
effect, unless the result of such severance would be to substantially alter this AGREEMENT or
the obligations of the parties, in which case this AGREEMENT shall be immediately terminated.
6.9 Attorneys' Fees. In any legal action, arbitration, or other proceeding brought to
enforce or interpret the terms of this AGREEMENT, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs.
6.10 Governing Law. This AGREEMENT shall be governed by and construed in
accordance with the laws of the State of California, and any action in connection with or arising
out of this AGREEMENT or any dispute between the parties shall be commenced and maintained
in the Superior Court of the State of California for the County of Los Angeles or the United States
District Court for the Central District of California.
6.11 Interpretation. This AGREEMENT shall be construed as a whole, according to
its fair meaning, and not in favor of or against any party. By way of example and not in limitation,
this AGREEMENT shall not be construed in favor of the parry receiving a benefit nor against the
2
party responsible for any particular language in this AGREEMENT. Captions are used for
reference purposes only and should be ignored in the interpretation of the AGREEMENT. This
AGREEMENT may be altered, amended or modified only by an instrument in writing, executed
by the parties to this AGREEMENT and by no other means. Each party waives their future right
to claim, contest or assert that this AGREEMENT was modified, cancelled superseded or changed
by any oral agreement, course of conduct, waiver or estoppel.
6.12 Binding Effect. The rights and obligations of this AGREEMENT shall inure to
the benefit of, and be binding upon, the parties to the contract and their heirs, administrators,
executors, personal representatives, successors and assigns, and whenever the context so requires,
the masculine gender and includes the feminine and neuter, and the singular number includes the
plural. This AGREEMENT may be executed in any number of counterparts, each of which shall
be considered as an original and be effective as such.
6.13 Further Assurances. Each parry shall execute and deliver such papers,
documents, and instruments, and perform such acts as are necessary or appropriate, to implement
the terms of this AGREEMENT and the intent of the parties to this AGREEMENT.
IN WITNESS WHEREOF, CITY and LEUNG has signed and executed this
AGREEMENT.
DATED: << r Z�'Z�
DATED:
ATTEST:
Eriexa He ..z, City Clerk
CITY:
Ben ity Manager
LEUNG:
4 GSA'2,�� -
Albert Leung
APPROVED AS TO FORM:
- 4Z�
Rachel Richm i, City Attorney