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09-135 Employment Contract for City Attorney THIRD AMENDED EMPLOYMENT CONTRACT FOR CITY ATTORNEY This Third Amended Employment Contract is made and entered into this 7t'day of April, 2015,by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, a Municipal Corporation, by and through its City Council (EMPLOYER), and Carol Korade(EMPLOYEE). RECITALS: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, 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. NOW THEREFORE, in consideration of the mutual covenants herein contained,the parties agree as follows: 1 Revised 4.7.15 ARTICLE I TERM OF EMPLOYMENT 1. Section 1.01. Term of the Contract: This Contract originally began on the date the PERS employment and group status of EMPLOYEE was finalized, unless extended by written agreement of the parties, and will automatically expire on August 31, 2020, unless extended in writing by the parties. On or within 30 days of August 31, 2019, EMPLOYEE shall notify EMPLOYER of the expiration date of August 31, 2020. 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, 2020. 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 2 Revised 4.7.15 Contract and the ordinance provisions as set forth in Section 2.18.110 of the Cupertino Municipal Code. 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 OBLIGATIONS OF EMPLOYEE Section 2.01. Duties: EMPLOYER 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 opinions and other documents of legal nature necessary or requested by the City Council; 3 Revised 4.7.15 (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; (g) Monitoring and advising the City Council and City staff regarding 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 4 Revised 4.7.15 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 Contract a monthly base salary of $22,129.58, effective retroactive to January 1,2015, 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, merit pay or an additional increase in salary or benefits. 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 Allowance: During the term of this Employment Contract, EMPLOYEE, to the extent necessary to perform her 5 Revised 4.7.15 duties shall use her own personal vehicle. EMPLOYER, in consideration 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 necessary, the replacement of her automobile. EMPLOYEE shall procure and maintain, at her expense, a comprehensive automobile liability insurance policy on the vehicle being 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 and administered in the same manner as vacation and sick leave is administered for 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, w h i c h presently consist of retirement benefits, family health coverage, life 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 6 Revised 4.7.15 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 execution 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 execution of this Contract and may not be reduced. EMPLOYER and EMPLOYEE acknowledge that (i) before being employed by EMPLOYER, EMPLOYEE had retired from the City of Alameda with retiree medical benefits through CalPERS (Employee + 1) for which EMPLOYEE paid no premiums, (ii) when EMPLOYEE accepted employment 7 Revised 4.7.15 from EMPLOYER, EMPLOYEE lost those City of Alameda retiree medical benefits, and (iii) after EMPLOYEE retires from EMPLOYER, EMPLOYEE will have to pay additional retiree medical premiums to Ca1PERS in order to obtain the same retiree medical benefits as EMPLOYEE had (or would have had in the future), for no additional retiree medical premiums, if EMPLOYEE had not accepted employment from EMPLOYER. Therefore, in addition to EMPLOYER's premium payments for the lifetime medical benefits for EMPLOYEE specified above, EMPLOYER agrees to establish a retiree-only health reimbursement arrangement (HRA) covering EMPLOYEE when EMPLOYEE retires from EMPLOYER. The HRA will provide a monthly benefit to EMPLOYEE that will be equal to the amount, if any, that EMPLOYEE has to pay in retiree medical premiums for the month in order to obtain the same retiree medical benefits for the month as EMPLOYEE had (Employee + 1) (or would have had in the future) for the month as a retiree of the City of Alameda if EMPLOYEE had not accepted employment from EMPLOYER. The HRA will either(i) reimburse EMPLOYEE for such additional premiums upon proof that is satisfactory to EMPLOYER that such additional premiums have been paid to the appropriate third party (e.g., Ca1PERS) or (ii) pay such additional premiums directly to the appropriate third party(e.g.,Ca1PERS). Section 4.04. Professional Dues and Subscriptions: EMPLOYER agrees to pay for EMPLOY-EE's annual membership to the State Bar of 8 Revised 4.7.15 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. Section 4.05. Expenses: EMPLOYEE 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 EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpose during the term of this Employment Contract. Section 4.06. Moving and Relocation 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$8,000. Moving shall also include any necessary storage and insurance costs. Section 4.07. Professional Development: EMPLOYER hereby agrees to pay travel 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 9 Revised 4.7.15 and committees there of 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. Section 4.08. Housing 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 Section 5.01. Termination of Employment and Severance: a. Subject to the provisions of Section 2.18.110 of EMPLOYER'S Municipal Code, 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 ninety (90) days after an 10 Revised 4.7.15 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, EMPLOYER agrees to pay EMPLOYEE her aggregate salary and aggregate medical insurance benefit allowance until one year and 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 11 Revised 4.7.15 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 equivalent 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 payments 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 (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without 12 Revised 4.7.15 affirmative action by EMPLOYER to terminate, initiate termination proceedings or request resignation. 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: Mayor 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. Notice 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 or other bonds required of EMPLOYEE under any law or ordinance. 13 Revised 4.7.15 Section 6.03. Indemnification: EMPLOYER shall defend, save harmless and indemnify 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's 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 gross negligence, willful misconduct on the part of EMPLOYEE, or acts of EMPLOYEE outside 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 14 Revised 4.7.15 r court costs and other non-reimbursable litigation expenses, such as expert witness fees and investigation expenses. Section 6.05. Severability: If any provision, or any portion thereof, contained in this Contract is held unconstitutional, invalid or unenforceable,the remainder of this Contract shall be deemed severable, shall not be affected, and shall remain in full force and effect. IN 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. ATTEST: C011-1 ITY CUPERTINO: \ a i Q_ 0. City Clerk —�� Mayor APPROVED AS TO FORM: ILL/Timothy Davis,Partner "EMPLOYEE" Burke,Williams & Sorensen,LLP 15 Revised 4.7.15 SECOND AMENDED EMPLOYrJENT CONTRACT FOR CITY ATTOIU'4EY This Second Amended Employment, Contract is made and entered into this 7th day of October, 2014, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, a Municipal Corporation, by and through its City Council (EMPLOYER), and Carol Korad.e:(EMPLOYEE). RECITAL S: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, 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. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1 Revised 10.7.14 ARTICLE I TERM OF EMPLOYMENT 1. Section 1.01. Term of the Contract: This Contract originally began on the date the PERS employment and group status of EMPLOYEE was finalized, unless extended by written agreement of the parties, and will automatically expire on August 31, 2020, unless extended in writing by the parties. On or within 30 days of August 31, 2019, EMPLOYEE shall notify EMPLOYER of the expiration date of August 31, 2020. 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, 2020. 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 2 Revised 10.7.14 Contract and the ordinance provisions as) set forth in Section 2.18.110 of the Cupertino Municipal Code. 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 OBLIGATIONS OF EMPLOYEE Section 2.01. Duties: EMPLOYER 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 frorn 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 COunc-il meetings and other meetings as. required; (b) Research, preparation and review of ordinances, resolutions, agreements, contracts, lelases, written opinions and other documents of legal nature necessary or requested by the City Council; 3 Revised 10.7.14 (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; (g) Monitoring and advising the City Council and City staff regarding 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 4 Revised 10.7.14 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 hcr pursuant to this Contract a monthly base salary of $21,075.79, payable in installments at the time as other employees of EMPLOYER are paid. EIdIPLOYEE'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 EMPLOYE:E's periodic evaluations, EMPLOYER may consider an additional compensation package increase including, but not limited to, merit pay or an additional increase in salary or benefits. 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 Allowance: During . the term of this Employment Contract, EMPLOYEE, to the extent necessary to perform her duties shall use her own personal vehicle. EMPLOYER, in consideration 5 Revised 10.7.14 � r 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 necessary, the replacement of her automobile. EMPLOYEE shall procure and maintain, at her expense, a comprehensive automobile liability insurance policy on the vehicle being 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 and administered in the same manner as vacation and sick leave is administered for 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, w h i c h presently consist of retirement benefits, family health coverage, life 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 6 Revised 10.7.14 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 execution of this Contract and is de reed 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 execution of this Contract and may not be reduced. EMPLOYER and EMPLOYEE acknowledge that (i) before being employed by EMPLOYER, EMPLOYEE; had retired from the.City of Alameda with retiree medical benefits through CaIPERS (Employee + 1) for which EMPLOYEE paid no premiums, (ii) when EMPLOYEE accepted employment. from EMPLOYER, EMPLOYEE lost those City of Alameda retiree medical 7 Revised 10.7.14 benefits, and (iii) after EMPLOYEE retires from EMPLOYER, EMPLOYEE will have to pay additional retiree medical premiums to Ca1PERS in order to obtain the same retiree medical benefits as EMPLOYEE had (or would have had in the future), for no additional retiree medical premiums,. if EMPLOYEE had not accepted employment from EMPLOYER. Therefore, in addition to EMPLOYER's premium payments for the lifetime medical benefits for EMPLOYEE specified above, EMPLOYER agrees to establish a retiree-only health reimbursement arrangement (HRA) covering EMPLOYEE when EMPLOYEE retires from EMPLOYER. The HRA will provide a monthly benefit to EMPLOYEE that will be equal to the amount, if any, that EMPLOYEE has to pay in retiree medical premiums for the month in order to obtain the same retiree medical benefits for the month as EMPLOYEE had (Employee + 1) (or would have had in the future) for the month as a retiree of the City of Alameda if EMPLOYEE had not accepted employment from EMPLOYER. The HRA will either (i) reimburse EMPLOYEE for such additional premiums upon proof that is satisfactory to EMPLOYER that such additional premiums have been paid to the appropriate third party (e.g., Ca1PERS) or (ii) pay such additional premiums directly to the appropriate third party(e.g., Ca1PERS). 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 8 Revised 10.7.14 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. Section 4.05 Expenses: EMPLOYEE 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 EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpose during the term of this Employment Contract. Section 4.06. Moving and Relocation 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$8,000. Moving shall also include any necessary storage and insurance costs. Section 4.07. Professional Development: EMPLOYER hereby agrees to pay travel 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 9 Revised 10.7.14 and committees there of 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. Section 4.08. Housing 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 Section 5.01. Termination of Employment and Severance: a. Subject to the provisions of Section 2.18.110 of EMPLOYER'S Municipal Code, 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 ninety (90) days after an 10 Revised 10.7.14 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 fo:nn 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, EMPLOYER agrees to pay EMPLOYEE her aggregate salary and aggregate medical insurance benefit allowance until one year and 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 11 Revised 10.7.14. 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 equivalent 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 payments 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 (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without 12 Revised 10.7.14 affirmative action by :EMPLOYER to terminate, initiate termination proceedings or-request resignation. 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: Mayor and City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 b. EMPLOYEE: Carol Korade Alternatively.,notices required pursuant to this Contract may be personally served in the same manner as is applicable to civil judicial process. Notice 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 or other bonds required of EMPLOYEE under any law or ordinance. 13 Revised 10.7.14 Section 6.03. Indemnification:. EMPLOYER shall defend, save harmless and indemnify'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's 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 gross negligence, willful misconduct on the part of EMPLOYEE, or acts of EMPLOYEE outside 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 14 Revised 10.7.14 court costs and other non-reimbursable litigation expenses, such as expert witness fees and investigation expenses. Section 6.05. Severability: If any provision, or 'any portion thereof, contained in this Contract is held unconstitutional, invalid or unenforceable, the remainder of this Contract shall be deemed severable, shall not be affected, and shall remain in full force and effect. IN 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. ATTEST: CITY OF CUPERTINO: 3IJ4 City Clerk (� 15 ly Mayor APPROVED AS TO FORM: r. Timothy Davis, Partner "EMPLOYEE" Burke, Williams & Sorensen, LLP 15 Revised 10.7.14 tii FIRST AMENDED EMPLOYMENT CONTRACT FOR CITY AT`I'ORN1 Y This First Amended Employment Contract is made and entered into this 17'h day of December, 2013, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, a Municipal Corporation, by and through its City Council (EMPLOYER), and Carol Korade (EMPLOYEE). RECITALS: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the Provisions of its Municipzd Code, 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. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1 Revised 12.17.13 .TICLE I TERM OF EMPLOYMENT 1. Section 1.01. Term of the Contract: This Contract originally began on the date the PERS employment and group status of EMPLOYEE was 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 2 Revised 12.17.13 Contract and the ordinance provisions as set forth in Section 2.18.110 of the Cupertino Municipal Code. 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 OBLIGATIONS OF EMPLOYEE Section 2.01. Duties: EMPLOYER 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 opinions and other documents of legal nature necessary or requested by the City Council; 3 Revised 12.17.13 (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; (g) Monitoring and advising the City Council and City staff regarding 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 4 Revised 12.17.13 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 Contract a monthly base salary of $20,468.76, payable in installments at the time as other employees of EMPLOYER are paid. EMPLOYEE's monthly base salary shall be adjusted by any percentage inch -.ase 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, merit pay or an additional increase in salary or benefits. 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 Allowance: During the term of this Employment Contract, EMPLOYEE, to the extent necessary to perform her duties shall use her own . personal vehicle. EMPLOYER, in consideration 5 Revised 12.17.13 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 necessary, the replacement of her automobile. EMPLOYEE shall procure and maintain, at her expense, a comprehensive automobile liability insurance policy on the vehicle being 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 and administered in the same manner as vacation and sick leave is administered for 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, w h i c h presently consist of retirement benefits, family health coverage, life 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 6 Revised 12.17.13 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 execution 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 execution of this Contract and may not be reduced. EMPLOYER and EMPLOYEE acknowledge that (i) before being employed by EMPLOYER, EMPLOYEE had retired from the City of Alameda with retiree medical benefits through CalPERS (Employee + 1) for which EMPLOYEE paid no premiums, (ii) when EMPLOYEE accepted employment from EMPLOYER, EMPLOYEE lost those City of Alameda retiree medical 7 Revised 12.17.13 benefits, and (iii) after EMPLOYEE retires from EMPLOYER, EMPLOYEE will have to pay additional retiree medical premiums to CalPERS in order to obtain the same retiree medical benefits as EMPLOYEE had (or would have had in the future), for no additional retiree medical premiums, if EMPLOYEE had not accepted employment from EMPLOYER. Therefore, in addition to EMPLOYER's premium payments for the lifetime medical benefits for EMPLOYEE specified above, EMPLOYER agrees to establish a retiree -only health reimbursement arrangement (HRA) covering EMPLOYEE when EMPLOYEE retires from EMPLOYER. The HRA will provide a monthly benefit to EMPLOYEE that will be equal to the amount, if any, that EMPLOYEE has to pay in retiree medical premiums for the month in order to obtain the same retiree medical benefits for the month as EMPLOYEE had (Employee + 1) (or would have had in the future) for the month as a retiree of the City of Alameda if EMPLOYEE had not accepted employment from EMPLOYER. The HRA will either (i) reimburse EMPLOYEE for such additional premiums upon proof that is satisfactory to EMPLOYER that such additional premiums have been paid to the appropriate third party (e.g., CalPERS) or (ii) pay such additional premiums directly to the appropriate third party (e.g., CalPERS). 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 Revised 12.17.13 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. Section 4.05 Expenses: EMPLOYEE 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 EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpose during the term of this Employment Contract. Section 4.06. Moving; and Relocation 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 $8,000. Moving shall also include any necessary storage and insurance costs. Section 4.07. Professional Development: EMPLOYER hereby agrees to pay travel 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 9 Revised 12.17.13 and committees there of 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. Section 4.08. Housing 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 Section 5.01. Termination of Employment and Severance: a. Subject to the provisions of Section 2.18.110 of EMPLOYER'S Municipal Code, 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 ninety (90) days after an 10 lZevised 12.17.13 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, EMPLOYER agrees to pay EMPLOYEE her aggregate salary and aggregate medical insurance benefit allowance until one year and 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 11 Revised 12.17.13 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 equivalent 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 payments 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 (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without 12 Revised 12.17.1.3 affirmative action by :EMPLOYER to terminate, initiate termination proceedings or request resignation. ARTICLE VI MISCELLANEOUS Section 6.01. Form of Notices: Notices pursuant to this Contract shall be in writing given by deposit in th(-. custody of the United States Postal Service, first class postage prepaid, addressed as follows: a. The CITY: Mayor and City Council City of Cupertino 10300 Tone Avenue Cupertino, CA 95014 b. EMPLOYEE: Carol Korade Alternatively, notices required pursuant to this Contract may be personally served in the same manner as is applicable to civil judicial process. Notice 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 or other bonds required of EMPLOYEE under any law or ordinance. 13 Revised 12.17.13 Section 6.03. Indemnification: EMPLOYER shall defend, save harmless and indemnify 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's 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 gross negligence, willful misconduct on the part of EMPLOYEE, or acts of EMPLOYEE outside 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 14 Revised 12.17.13 court costs and other non - reimbursable litigation expenses, such as expert witness fees and investigation expenses. Section 6.05. Severability: If any provision, or any portion thereof, contained in this Contract is held unconstitutional, invalid or unenforceable, the remainder of this Contract shall be deerrced severable, shall not be affected, and shall remain in full force and effect. IN 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. ATTEST: City Clerk APPROVED AS TO FORM: Ti oth vis, Partner B -e: Williams & Sorensen, LLP Revised 12.17.13 CITY OF CUPERTINO: Mayor "EMPLOYEE" EMPLOYMENT CONTRACT FOR CITY ATTORNEY This Employment Contract is made and entered into this 1A day of October, 2009, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, A Municipal Corporation, by and through its City Council (EMPLOYER), and Carol Korade (EMPLOYEE). RECITALS: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, 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. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 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 Exuiration. 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. 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 OBLIGATIONS OF EMPLOYEE Section 2.01. Duties. EMPLOYER 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 wasonably 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 opinions 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; 3 (g) Monitoring and advising the City Council and City staff regarding 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 Contract 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, merit pay or an additional increase in salary or benefits. ,, 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 Allowance, During the term of this Employment Contract, EMPLOYEE, to the extent necessary to perform her duties, shall use her own personal vehicle. EMPLOYER, in consideration 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 necessary, the replacement of her automobile. EMPLOYEE shall procure and maintain, at her expense, a comprehensive automobile liability insurance policy on the vehicle being 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 and administered in the same manner as vacation and sick leave is administered for 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 retirement benefits, family health coverage, life 5 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 execution of this Contract and is deemed irrevocable. EMPLOYER shall also recognize and apply to this Contract, any benefit or compensation changes resulting from any Memorwidum 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 execution of this Contract and may not be reduced. Section 4.04. Professional Dues and Subscriptions. EMPLOYER agrees to pay for EMPLOYEES'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. Section 4.05 Expenses. EMPLOYEE shall be entitled to reimbursement for all reasonable expenses necessarily incurred by tier 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 EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpose during the term of this Employment Contract. Section 4.06. Moving and Relocation 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 $8,000. Moving shall also include any necessary storage and insurance costs. Section 4.07. Professional Development. EMPLOYER hereby agrees to pay travel 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. Section 4.08. Housing-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 th`;s 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 Employment and Severance: a. Subject to the provisions of Section 2.18.110 of EMPLOYER'S Municipal Code, 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 ninety (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, 8 EMPLOYER aggress to pay EMPLOYEE her aggregate salary and aggregate medical insurance benefit allowance until one year and 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 equivalent 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 payments 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 (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any 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. 9 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: Mayor and City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 b. EMPLOYEE: Carol Korade Alternatively, notices required pursuant to this Contract may be personally served in the same manner as is applicable to civil judicial process. Notice 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 or other bonds required of EMPLOYEE under any law or ordinance. 10 Section 6.03. Indemnification. EMPLOYER shall defend, save harmless and indemnify 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's 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 gross negligence, willful misconduct on the part of EMPLOYEE, or acts of EMPLOYEE outside 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 witness fees and investigation expenses. Section 6.05. Severability. If any provision, or any portion thereof, contained in this Contract is held unconstitutional, invalid or unenforceable, the remainder of this 11 Contract shall be deemed severable, shall not be affected, and shall remain in full force and effect. I14 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. ATTEST: City Clerk APPROVED AS TO FORM: -A Linda A. Tripoli, Esq. CITY OF CUPERTINO L Mayor 12 "EMPLOYEE" CUPERTINO October 21, 2009 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255 TELEPHONE: (408) 777 -3223 • FAX: (408) 777 -3366 WEBSITE: www.cupertino.org Carol Korade City Attorney's Office 20410 Town Center Lane, Suite 210 Cupertino, CA 95014 EMPLOYMENT CONTRACT Enclosed for your files is a copy of the employment contract with the City of Cupertino. If you have any questions or need additional information, please contact the Human Resources Department at (408) 777 -3227. Sincerely, CITY CLERK'S OFFICE Enclosure cc: Human Resources