15. City Attorney employment contractOFFlCE OF THE CITY MANAGER
CUPERTINO
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 950143255
TELEPHONE: (408} 777-3212 • FAX: (408) 777-3366
SU1I~IlVIARY
Agenda Item No.
SUBJECT
Meeting Date: October 20, 2009
Consider approving the final employment contract for the City Attorney and adopt a resolution
requesting the California Public Employees' Retirement System (CaIPERS) Board of
Administration approve the extension of the temporary appointment of retired annuitant Carol
Korade beyond 960 hours in Fiscal Year 2009-:'.010 by 630 Hours, extending the 960 hours for the
City Attorney, Resolution No. 09- ~~
BACKGROUND .
The City Council of the City of Cupertino desirss to employ Carol Korade as the full time, regular
City Attorney. To accomplish that, an employment contract (Attachment A) has been drafted and
reviewed by outside special counsel on behalf of the City Council and executed by Carol Korade.
The term of the attached Employment Contract for City Attorney commences upon the resolution of
various CaIPERS issues including the negotiation of a Memorandum of Understanding with a
newly established City Attorney Unit and the reinstatement of Carol Korade from her Ca1PERS
retirement.
Once the Employment Contract for the Ciry Attorney conunences, it extends until August 2015
unless terminated earlier by the City Council or Carol Korade.
Accompanying this staff report is also a resolution by City Council of the City of Cupertino
requesting the California Public Employees' Retirement System {CaIPERS) Board of
Administration approve the extension of the temporary appointment of retired annuitant Carol
Korade beyond 960 hours in Fiscal Year 2009-x:010 by 630 hours.
As a retired annuitant under CaIPERS, Carol Korade can serve in an appointment with a CaIPERS
agency such as the City of Cupertino for 960 hours in a fiscal year. Canal Korade has been serving
in the appointment of Interim City Attarney since July 1, 2009 and it is anticipated that she will
reach the 960 hour limitation on or about Febru;~ry 5, 2010. In anticipation that the above-
referenced Ca1PERS issues may not be resolved by February 5, 2010, the attached Resolutio;j>s _ 1
requests the approval of the Ca1PERS Board of Administration to extend by 630 hours the
temporary appointment of Carol Korade as Interim City Attorney during fiscal year 2009-2010.
The additional 630 hours will take Carol Korade through June 30, 2010. It is not anticipated that all
of the 630 hours will be needed. However, it is recommended that in order to ensure uninterrupted
Interim City Attorney services, the Council seek approval of the 630 hours in the event that the
resolution of the above-referenced Ca1PERS issues takes longer than anticipated.
The attached Resolution will only be submitted in the event that it appears that resolution of the
above-referenced CaIPERS issues will extend beyond February 5, 2010.
FISCAL IMPACT
The Attorney contract will result in an annual salary and benefit cost to the Ciry of Cupertino of
$268,900, exclusive of retiree medical costs. In addition, the position is eligible to participate in the
City Housing Policy whereby Cupertino will loan up to five times annual salary and up to 30%a
equity in a city residence.
RECOMMENDED ACTION
It is recommended that the City Council:
1. Approve the Employment Contract for the City Attorney.
2. Adopt the resolution requesting the California Public Employees' Retirement System
(Ca1PERS} Board of Administration approve the extension of the temporary appointment of
retired annuitant Carol Korade beyond 960 hours in Fiscal Year 2009-2010 by 630 hours.
Submitted and Approved for submission by:
David W. Knapp
City Manager
Attachment A: Employment Contract for City Attorney
Attachment B: Draft Resolution 09-.~
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Attachment A
EMPLOYMENT CONTRACT FOR CITY ATTORNEY
This Employment Contract is made and entered into this _ day of October,
2409, by and bet<ueen the CITX OF CIIPERTINO, STATE OF CALIFORNIA, A
Municipal Coxporation, by and through its City Council (EMPLOYER), and Carol
Korade (EMPLOYEE}.
RECITALS:
A. EMPLOYER is a Municipal ~~orporation of the State of California.
B. The City Council of the City of Cupertino, in accordance with the
provisions of its Municipal. bode, desires to employ the services of
EMPLOYEE as the City Attorney.
C. EMPLOYEE desires to reinstate from retirement and accept employment
as Cupertino City Attorney.
D. It is the desire of both EMPLOYER and EMPLOYEE to set forth the
terms and conditions of said employment.
NOVV THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
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ARTICLE I TERM OF EMPLOYMENT
Section 1.01. Term of the Contract:
This Contract will commence on the date the PERS employment and group status
of EMPLOYEE is finalized, unless extended by written agreement of the parties, and will
automatically expire on August 31, 2015, unless extended in writing by the parties. On
or within 30 days of August 31, 2014, EMPLOYEE shall notify EMPLOYER of the
expiration date of August 31, 2015. In the event that EMPLOYER does not intend to
extend this Contract beyond expiration, it shall notify EMPLOYEE in writing of its intent
not to extend prior to the effective date of expiration. Failure of the EMPLOYER to
provide such notice shall not affect the expiration date of August 31, 2015.
Section 1.02 Terminations Prior to Expiration. Notwithstanding any provision
contained in this Contract to the contrary, EMPLOYEE understands and agrees that she
serves at the pleasure of EMPLOYER and may be terminated prior to expiration of this
Contract at the will of EMPLOYER, subject only to the severance provisions set forth in
Article V of this Contract, and the ordinance provisions as set forth in Section 2.18.110 of
the Cupertino Municipal Code. In like manner, nothing in this Contract shall prevent,
limit, or otherwise interfere with the right of EMPLOYEE to resign at any time from the
position of City Attorney subject only to the notice provisions set forth in Article V of
this Contract and the ordinance provisions as set forth. in Section 2.18.110 of the
Cupertino Municipal Code.
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EMPLOYEE further acknowledges that EMPLOYER has made no implied,
expressed, or written assurances of continued employment with the City of Cupertino
other than as specifically set forth in this Contract.
ARTICLE II DUTIES AND OBLIGATIOriS OF EMPLOYEE
Section 2.01. Duties. EMPLOYEF~ hereby agrees to employ EMPLOYEE as
City Attorney of the City of Cupertino to perform the functions and duties as specified in
the Municipal Code, California Constitution, and California Statutes, and to perform such
other legally permissible and proper duties and functions as EMPLOYER shall from time
to time assign to EMPLOYEE which are reasonably related to the position of City
Attorney, including, but not limited to:
(a) Attendance at City Council meetings and other meetings as required;
(b) Research, preparation and review of ordinances, resolutions, agreements,
contracts, leases, written opini~~ns and other documents of legal nature
necessary or requested by the City Council;
(c} Provision of all legal advice on behalf of the City to the City Council, City
Manager, and other City officers and employees;
(d) Representation of the City, members of the City Council and other City
officers and employees in litigation as necessary;
(e) Selection, retention, supervision and monitoring of outside legal counsel as
required;
(f) Commencement and prosecution of criminal actions and civil abatements
necessary and appropriate to enforce City's ordinances;
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(g} Monitoring and advising the City Council and City staff regard.zng legislation
and case law affecting the City.
Section 2.02. Devotion to Duties. EMPLOYEE agrees to devote productive time,
ability, and attention to the business of EMPLOYER during the term of this Employment
Contract. This Contract shall not be interpreted nor intended to prohibit EMPLOYEE
from making passive personal investments, conducting private business affairs or
providing 'volunteer or limited legal services if those activities do not interfere with the
services required under this Contract.
Section 2.03. Performance Evaluation Procedures. The City Council shall review
and evaluate the performance of EMPLOYEE at least annually, or on any other schedule
deemed appropriate by the City Council. Said review and evaluation shall be in
accordance with specific criteria developed by EMPLOYER after consultation with
EMPLOYEE.
ARTICLE III COMPENSATION
Section 3.01. Compensation. EMPLOYER agrees to pay to EMPLOYEE for
services rendered by her pursuant to this Contrract a monthly base salary of $17,145,
payable in installments at the time as other employees of EMPLOYER are paid.
EMPLOYEE's monthly base salary shall be adjusted by any percentage increase given to
Department Heads of EMPLOYER generally and shall not be decreased unless in a
percentage consistent with a decrease applicable to Department Heads of EMPLOYER
generally. At the time of EMPLOYEE's periodic evaluations, EMPLOYER may
consider an additional compensation package increase including, but not limited to, mezit
pay or an additional increase in salary or benefits.
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Section 3.02. Deferred Compensation. City shall provide to EMPLOYEE the
same deferred compensation plan that may be provided to other Department Heads and
Confidential employees, if any.
ARTICLE IV EMPLOYEE BENEFITS
Section 4.01. Automobile Allowan~.e. During the term of this Employment
Contract, EMPLOYEE, to the extent neces:~ary to perform her duties, shall use her own
personal vehicle. EMPLOYER, in consider;~tion thereof; shall pay EMPLOYEE the sum
of $350 per month as an automobile allowance. EMPLOYEE shall be responsible for the
payment of all operating expenses of the vehicle, including, but not limited to, gasoline,
oil, service and repair, and, if necess~uy, the replacement of her automobile.
EMPLOYEE shall procure and maintain, at her expense, a comprehensive automobile
liability insurance policy on the vehicle bein;; used by her, in an amount that is acceptable
to EMPLOYER. During the course of this Employment Contract, EMPLOYEE shall
provide EMPLOYER with written documentation that said insurance policy is in full
force and effect.
Section 4.02. Vacation and Sick Leave. EMPLOYEE shall be credited
with 22 days of vacation and 12 days of sick leave as of the commencement of
employment. Annual vacation and sick leave shall be accrued anal administered in the
same manner as vacation and sick leave is administered far Department Head. employees
of EMPLOYER
Section 4.03. Benefits. EMPLOYEE shall be entitled to receive benefits provided
by EMPLOYER at a level no less than that provided to other Department Heads of the
City; which presently consist of retirem~:nt benefits, family health coverage, life
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insurance, disability insurance, sports club membership, administrative leave, floating
holidays and holidays. The benefits so provided are subject to modification during the
course of this Contract at the sole and absolute discretion of EMPLOYER at such times
and to such extent as EMPLOYER may deem appropriate provided, however, there shall
be no reduction in benefits unless EMPLOYER implements the same reduction of
benefits to all other Department Heads of the City (except as specified below for
retirement and lifetime medical benefits).
EMPLOYER agrees that EMPLOYEE has a contract right to retirement benefits
and lifetime medical benefits that is vested as of the date of commencement of the term
of this Contract and is deemed irrevocable. EMPLOYER shall also recognize and apply
to this Contract, any benefit or compensation changes resulting from any Memorandum
of Understanding {MOU) or Resolution that may exist in the future from a bargaining
unit that the City Attorney position may be allocated to pursuant to the City's personnel
policies and that such MOU and Resolution is incorporated herein by this reference as
though set forth in full. Notwithstanding the above, EMPLOYER agrees that the
retirement and lifetime medical benefits to be paid to EMPLOYEE upon retirement shall
not be less than that based upon the calculation in effect at the time of commencement of
this Contract and may not be reduced.
Section 4A4. Professional Dues and Subscriptions. EMPLOYER agrees to pay
for EMPLOYEE's annual membership to the State Bar of California and for professional
dues and subscriptions of EMPLOYEE directly related to or beneficial to her duties as
City Attorney, provided the City Council has made provisions far such costs in the
annual budget.
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Section 4.05 Expenses. EMI'LOY)E shall be entitled to reimbursement for all
reasonable expenses necessarily incurred by her in the performance of her duties upon
presentation of vouchers indicating the amount and purpose thereof, and further provided
that such expenses are in accordance with policies established from time to time by
El\~PLOYER and consistent with budget allocations adopted by EMPLOYER for that
purpose during the term of this Employment Contract.
Section 4A6. Moving and ReIoration Expenses. EMPLOYEE shall be
reimbursed or EMPLOYER may pay directly for the expenses of packing, unpacking,
and moving herself, her family; and her personal property from Alameda to Cupertino,
California, not to exceed a maximum of $8,0~~0. Moving shall also include any necessary
storage and insurance costs.
Section 4.07. Professional Development. EMPLOYER hereby agrees to pay
tFavel and subsistence expenses of EMPLOYEE for professional and office travel,
meetings, and occasions adequate to continue the professional development of
EMPLOYEE and to adequately pursue necessary official functions for EMPLOYER.,
including, but not limited to, city attorney associations and such other national, regional,
state, and local government groups and committees thereof which EMPLOYEE serves as
a member, provided the City Council has made provisions for such costs in the annual
budget.
EMPLOYER also agrees to pay tuition, travel, and subsistence expenses of
EMPLOYEE for courses, institutes, and seminars that are necessary for her professional
development and for the good of the City provided the City Council has provided for
same in the annual budget.
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Section 4.08. Housin Assistance. EMPLOYEE may elect to receive Housing
Assistance for Department Heads consistent with the EMPLOYER'S Housing Assistance
Policy in effect on the date of execution of this Contract, with any loan repayment to be
due two years after termination of employment or August 31, 2013, whichever is later.
ARTICLE V TERMINATION AND NOTICE
5.01. Termination of Emt~lo~ ent and Severance:
a Subject to the provisions of Section 2.18.110 of EMPLOYER'S
Municipal Cade, EMPLOYEE serves at the pleasure of the EMPLOYER and nothing
herein shall be taken to prevent, limit or otherwise interfere with the right of
EMPLOYER to terminate the services of EMPLOYEE with or without cause; provided,
however, EMPLOYER shall take no action to terminate the services of EMPLOYEE
within nuiety (90) .days after an election at which one or more new members are elected
to the City Council or where the effective date of termination is less than one year and
one day after commencement of the term of this Contract. There is no express or implied
promise made to EMPLOYEE for any form of continued employment. This Contract and
the EMPLOYER'S Municipal Code Chapter 2.18 are the sole and exclusive bases for an
employment relationship between EMPLOYEE and EMPLOYER.
b. If the EMPLOYEE is terminated by the EMPLOYER prior to expiration
of this Contract; while still willing and able to perform the duties of the City Attorney,
EMPLOYER agrees to pay EMPLOYEE a single lump sum payment made on the
effective date of the termination, in an amount equivalent to nine months aggregate salary
and aggregate medical insurance benefit allowance. If notice of termination is given less
than three months and one day after commencement of the term of this Contract,
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EMPLOYER aggress to pay EMPLOYEE her aggregate salary and aggregate medical
insurance benefit allowance until one year ;end one day after the commencement of the
Contract and no additional severance payment is owing. If this Contract is not renewed,
then EMPLOYER shall either provide EMPLOYEE with nine months prior notice of
nonrenewal or shall pay EMPLOYEE a single lump sum payment made on the effective
date of the termination in an amount equiv;dent to the difference between nine months
aggregate salary and medical insurance benefit allowance and the amount of such
aggregate salary and medical insurance benefit allowance computed for the number of
months of notice actually given. Any such F~ayments will release EMPLOYER from any
further obligations under this Contract. Contemporaneously with the delivery of the
severance pay herein above set out, EMPLOYEE agrees to execute and deliver to
EMPLOYER a release releasing EMPLOYER of all claims that EMPLOYEE may have
against EMPLOYER.
c. Notwithstanding paragraph (b) above, EMPLOYER shall not be obligated
to pay, and shall not pay, any amounts or continue any benefits under the provisions of
paragraph (h}, if EMPLOYEE is terminated because of a crime of moral turpitude or a
violation of statute or Iaw constituting misconduct in office. Further, EMPLOYER shall
not be obligated to pay, and shall not gay, ~-ny amounts or continue any benefits under
paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without affirmative
action by EMPLOYER to terminate, initiate termination proceedings or request
resignation.
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ARTICLE VI MISCELLANEOUS
Section 6.01. Form of Notices.
Notices pursuant to this Contract shall be in writing given by deposit in the
custody of the United States Postal Service, first class postage prepaid, addressed as
follows:
a. The CITY: Mayox and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
b. EMPLOYEE:
Carol Korade
9 Chatham Pointe
Alameda, CA 94502
Alternatively, notices required pursuant to this Contract may be personally served
in the same manner as is applicable to civil judicial process. 1Votice shall be deemed
given as of the date of personal service or as of the date three days after deposit of such
written notice, postage prepaid, with the United States Postal Service.
Section 6.02. Bonding. EMPLOYER shall bear the full cost of any fidelity ox
other bonds required of EMPLOYEE under any law or ordinance.
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Section 6.03. Indemnification. EMPLOYER shall defend, save harmless and
indennnify EMPLOYEE against any tort, professional liability claim or demand, or other
legal action, whether groundless or otherwise, arising out of an alleged act or omission
occurring in the performance of Employee';; duties as City Attorney. If EMPLOYER
compromises or settles any such claim or suit, EMPLOYER shall pay the amount of any
settlement, or if the claim or suit results in a judgment against EMPLOYEE,
EMPLOYER shall pay any such judgment. This indemnification does not apply to any
act, action; or omission arising out of the gro;;s negligence, willful misconduct on the part
of EMPLOYEE, or acts of EMPLOYEE outs:lde the course and scope of her duties.
Section 6.04. General Provisions.
A. The text herein shall constitute the entire Contract between the
parties.
B. This Contract shall be binding upon and insure to the benefit of the
heirs at law and executors of EMPLOYEE,
C. This Contract may only be modified upon the written consent of
the EMPLOYER and EMPLOYEE.
D. In any action to enforce the terms of this Contract, the prevailing '
party shall be entitled to recover reasonable attorney's fees and
court costs and other non-reimbursable litigation expenses, such as
expert wiliness fees and investigation expenses.
Section 6.0~. Severability. If any prt~vision, or any portion thereof, contained in
this Contract is held unconstitutional, invalid or unenforceable, the remainder of this
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Contract shall be deemed severable, shall not be affected, and shall remain in full force
and effect.
1N WITNESS WHEREOF, EMPLOYER has caused this Contract to be
signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and
EMPLOYEE has signed and executed this Contract, both in duplicate; the day and year
first above written.
ATTF;ST:
City Clerk
APPROVED AS TO FORM:
.-
Linda A. Tripoli, Esq.
CITY OF CliJl'ERT1N0
Mayor
~' ~~
"EMPLOYEE"
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aeaFr
RESOLUTION N0.09-171
Attachment B
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
REQUESTING THE CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
(CALPERS) BOARD OF ADMINISTRA'['ION APPROVE THE EXTENSION OF THE
TEMPORARY APPOINTMENT OF RETIREI) ANNUITANT CAROL KORADE BEYOND 960
HOURS IN FISCAL YEAR 2009-2010 BY 630 HOURS
WHEREAS, the former City Attorney for the City of Cupertino retired effective in December of
2008; and
WHEREAS, the Cupertino City Council ret<<ined Bob Murray & Associates to conduct a full
recruitment for the purposes of employing a full time;, regular City Attorney; and
and
WHEREAS, that recruitment did not result in the employment of a full time, regular City Attorney;
WHEREAS, Carol Korade retired under the California Public Employees' Retirement System
(CALPERS) from the City of Alameda, California in the position of City Attorney effective in August 2006;
and
WHEREAS, the City Council of the City of Cupertino appointed Carol Korade to the position of
Interim City Attorney, a position deemed to be of limited duration and requiring specialized skills, effective
July 1, 2009; and
WHEREAS, Carol Korade, as a retired annuitant, is expected to reach her maximum 960 hours of
appointment allowable in this fiscal year under Government Code Section 21222(h) on or about February 5,
2010; and
WHEREAS, due to the extended and unanticipated time required to recruit and employ afull-time
regular City Attorney and due to the important and ongoing need for legal representation of the City Council
and the City's various Departments in the interim.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
In accordance with Government Code Section 21221(h), the City Council of the City of Cupertino requests
that the Ca1PERS Board of Administration approve a~n extension for the temporary employment of Carol
Korade for 630 additional hours through June 30, 2010, not to exceed a total of twelve months.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this
20th day of October, 2009, by the following vote:
Vote Members of the C~ Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
APPROVED:
Mayor, City of Cupertino '
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EXHIBIT S
BEGIN
HERE
+CUPERT~.nce, disability insurance, sports club membership, administrative leave, floating
holidays and holidays. The benefits so provided are subject to modification during the
course of this Contract at the sole and absolui:e discretion of EMPLOYER at such times
and to such extent as EMPLOYER may deem appropriate provided, however, there shall
be no reduction in benefits unless EMPLOYER implements the same reduction of
benefits to all other Department Heads of the City (except as specified below for
retirement and lifetime medical benefits).
EMPLOYER agrees that EMPLOYEE; has a contract right to retirement benefits
execution
and lifetime medical benefits that is vested as of the date of ee~e~s~~~-~~~ ~_~..
of this Contract and is deemed irrevocable. EMPLOYER shall also recognize and apply
to this Contract, any benefit or compensation changes resulting from any Memorandum
of Understanding (MOU} or Resolution that may exist in the future from a bargaining
unit that the City Attorney position may be allocated to pursuant to the City's personnel
policies and that such MOU and Resolution is incorporated herein by this reference as
though set forth in full. Notwithstanding the above, EMPLOYER agrees that the
retirement and lifetiie medical benefits to be paid to EMPLOYEE upon retirement shall
execution
not be less than that based upon the. calculation in effect at the time of ~ee.-~tt of
this Contract and may not be reduced.
Section 4.04. Professional Dues and Subscriptions. EMPLOYER agrees to pay
for EMPLOYEE's annual membership to the State Bar of California and for professional
dues and subscriptions of EMPLOYEE directly related to or beneficial to her duties as
City Attorney, provided the City Council has made provisions for such costs in the
annual budget.
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