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CITY OF BARSTOW
EMPLOYMENT AGREEMENT
WITH MICHAEL B. STEWART
TO SERVE AS
LIMITED DURATION CITY ENGINEER
This agreement is entered into as of August 21, 2023 by and between the CITY OF BARSTOW, a municipal corporation, hereafter referred to as the “City” and Michael B. Stewart, hereafter referred to as “Employee.”
A. WHEREAS, the City desires to appoint a person with specialized skills qualified to fill the position of City Engineer on a limited basis;
B. WHEREAS, Employee is a retired annuitant who has been retired from public service for more than 180 days and who has specialized civil engineering experience , with several decades of experience as a City Engineer and providing civil engineering services for local governments as a licensed City Engineer; C. WHEREAS, Barstow Municipal Code section 2.08.070(3) authorizes the City Manager to appoint a City Engineer;
D. WHEREAS, the City Manager wishes to appoint a PERS annuitant, Employee, to the position of City Engineer on a limited basis to provide specialized skills during a limited duration pursuant to Government Code section 21224(a) and a written PERS Annuitant Employment Agreement;
E. WHEREAS, the City Council wishes to ratify the City Manager’s appointment of Employee to the position of City Engineer on an limited basis to provide specialized skills during a limited duration pursuant to Government Code section 21224(a) and a written PERS Annuitant Employment Agreement;
F. WHEREAS, Government Code section 21224(a) limits the number of hours a retired annuitant may work to 960 hours in a fiscal year;
G. WHEREAS, Employee will not work more than 960 total hours this fiscal year hours before June 30, 2024, as required under Government Code section 21224(a); and H. WHEREAS, Employee has certified that he has not received unemployment insurance compensation within the 12-month period prior to his appointment.
NOW THEREFORE, in consideration of the above stated desires and the mutual covenants, terms and conditions, herein contained, the parties hereto mutually and freely agree as follows:
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SECTION 1 – EMPLOYMENT CONDITIONS AND DUTIES
a. Employee is appointed by and shall serve at the pleasure of the City Manager as Limited Duration City Engineer. Employee has performed his due diligence to confirm with PERS that he may accept this temporary appointment as a PERS annuitant. b. Employee shall be responsible for performing duties of the Limited Duration City Engineer position and other duties and special projects as assigned.
SECTION 2 – EMPLOYMENT TERM
a. The City agrees to employ Employee and Employee agrees to be employed and remain in the employment of the City for a term beginning August 21, 2023 and ending no later than June 30, 2024, unless extended by mutual agreement of the City and Employee in writing in compliance with applicable law. During this term, Employee shall not work more than 960 hours each fiscal year. This is an at-will position and Employee has no property interest in his position.
b. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the rights of the City to terminate the services of the Employee at any time during such employment terms or any renewal thereof subject to the provisions as set forth in this agreement.
c. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right to resign at any time from this position with the City, subject to the provisions as set forth in this agreement.
SECTION 3 – EMPLOYEE RESIGNATION
In the event the Employee terminates this Employment Agreement by voluntary resignation, in writing, before expiration of the employment terms or any renewal(s) thereof, Employee shall not be entitled to any severance pay but shall be entitled to payment in full for consideration of the hours work through the end of the position. In the event that the Employee voluntarily resigns this position before normal expiration date of the employment terms or any renewal, he shall give the City at least thirty (30) days’ advanced written notice unless the parties agree otherwise. The Employee, should he resign, shall be paid for any earned salary to which he is entitled as of the final day on City payroll.
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SECTION 4 – EMPLOYMENT TERMINATION
Employee serves in an at-will capacity as Limited Duration City Engineer during the period of time stated in this agreement. The City may terminate or remove the Employee with or without cause on five (5) calendar days’ written notice to Employee.
SECTION 5 – WORK HOURS/CAP
Employee is expected to devote necessary time, within and outside normal work hours, to the business of the City. Due to the nature of the position, it is understood that the workday and workweek may vary. Employee shall not work more than 960 hours within the term set forth in Section 2 above.
SECTION 6 – SALARY
The City shall pay the Employee for all services rendered and worked pursuant to this Agreement at an hourly rate that does not exceed the maximum annual salary of the City Engineer position, $175,060.68 per year, divided by twelve months, and divided again by 173.333, for a maximum hourly rate of $84.16 as required by Government Code section 21224(a). Employee shall not be reimbursed for any expenses unless authorized in writing by City in advance. Employee’s salary will be paid on a bi-weekly basis in conformance with the City’s established pay periods and pay days. Although Employee is required by Government Code section 21224(a) to be compensated on an hourly basis, Employee is an FLSA exempt employee and is not entitled to overtime, even if his work week exceeds 40 hours. Employee shall not receive benefits, incentives or compensation in lieu of benefits, sick leave, holiday, vacation pay or any other form of compensation in addition to the hourly rate during his employment underthis employment agreement.
SECTION 7 – INDEMNIFICATION
If the employee is named as a party in litigation relating to Employee’s actions or inactions as a City employee, the City shall defend Employee and pay any judgment which may be entered against Employee, consistent with the terms of applicable law including Government Code 810 et seq.
SECTION 8 – ENTIRE AGREEMENT AND AMENDMENTS
a. This agreement supersedes any and all other agreements between the parties hereto with respect to the employment of the Employee by the City and contains all of the covenants and agreements between the parties with respect to such employment. Each party to this Agreement acknowledges that no representations, inducement, promise, or agreements have been made by any party or anyone acting on behalf of any party orally or otherwise which are not embodied herein. b. No other agreement, statement or promise not contained in this Agreement shall be valid or binding or shall be used in interpreting the meaning of thisAgreement. 4 IMANAGE\319513.v1\111580013\8/16/23
c. Amendments, modifications or changes may be made to this Agreement and shall become effective on the date contained therein when executed in writing and mutually signed by both parties to this Agreement.
d. This Agreement and any amendments, modifications or changes thereto shall be binding upon the City during its term.
e. This Agreement and any amendments, modifications or changes thereto shall be binding upon the Employee and inure to the benefit of the heirs at law and executors of the Employee.
SECTION 9 – SEVERABILITY
If any provision or any portion hereof is held to be unconstitutional invalid or unenforceable, the remainder to this Agreement or portion thereof shall be deemed severable, shall not be affected, and shall remain in full force and effect. “EMPLOYEE”
Michael B. Stewart
“CITY”
Willie A. Hopkins, Jr., City Manager
ATTEST:
Andrea Flores, City Clerk (seal)
APPROVED AS TO FORM:
Matthew T. Summers, City Attorney