12-053 Interim City Manager Employment Agreement with Amy Chan CITY OF CUPERTINO
INTERIM CITY MANAGER EMPLOYMENT AGREEMENT
WITH AMY CHAN
This Interim City Manager Employment Agreement (the "Agreement")
is made and entered into as of April 17, 2012, (the "Commencement Date") by
and between the City of CUPERTINO, a municipal corporation (the "City"),
and AMY CHAN (the "Employee").
IN CONSIDERATION of the mutual covenants and conditions set forth
below, the City and the Employee agree as follows:
Section 1. Recitals
A. The City Council of the City desire to employ the Employee as
Interim City Manager, and the Employee desires to be employed as Interim
City Manager, pursuant to and in accordance with Chapter 2.28 of "The
Cupertino Municipal Code," as amended (the "City Code").
B. The Employee and the City have agreed that it is appropriate to
document the terms and conditions of the Employee's employment by the City.
Section 2. Employment as Interim City Manager
A. Employment. The City hereby agrees to employ the Employee as
the Interim City Manager beginning on the Commencement Date, as defined
in Section 3 of this Agreement, and the Employee accepts such employment
and agrees to perform the functions and duties set forth in this Agreement and
provided in the City Code, including without limitation those general duties
provided in Chapter 2.28.040 of the City Code, and to perform such other
legally permissible and proper duties and functions as the City Council may
assign from time to time. This is a fullti:me position.
B. Employment is At-Will. Subject to the notice requirement in
Section 9 of this Agreement, the Employee is employed at the will of the City
Council, and nothing in this Agreement shall create any property right in her
or any other right to the continuation of her employment with the City. No act
of the City Council, any City Council member, any City employee, or any legal
representative or other agent of the City shall create any such property right
or any such other right unless specifically ratified in writing by the City
Council.
Section 3. Term
The Employee's term of employment ("Term") shall be for a maximum
period of 12 months, commencing on April 17, 2012 ("Commencement Date")
and terminating on April 16, 2013, unless the employment is terminated
earlier pursuant to Section 9 of this Agreement.
The Employee is a retiree under the Calpers system. Pursuant to the
Gov't Code 21221(h), Employee is restricted to 960 hours per Calpers fiscal
year, unless extended. Employee agrees to not exceed the maximum hours of
employment with a contracting agency pursuant to 21221(h) per Calpers fiscal
year.
Section 4. Sole Employment as Interim City Manager
The Employee must work diligently, utilizing her best efforts in the
performance of her duties. She must devote her entire business time,
attention, and energies to the performance of her duties. She may not actively
engage (in contrast to passive engagement) in any income- or profit-generating
activities without the prior written consent of the City Council.
Section 5. Compensation; Benefits
A. Base Salary. The City will pay the Employee $109.52 per hour as
base salary.
B. Employee Benefit Programs. As a retiree, the Employee is not
eligible to participate in the employee benefit plans and programs provided by
the City to other City department heads, including health and life insurance
benefit programs, pursuant to the Unrepresented Employees Compensation
Policy.
C. Vacation and Sick Days. As a retiree, the Employee is not
entitled to paid vacation days or sick days pursuant to the terms of the
Unrepresented Employees Compensation Policy.
E. Taxes. All payments made, or benefits provided, to the Employee
pursuant to this Section 5 are subject to the usual and appropriate payroll,
personnel, and benefits policies of the City as well as the requirements of any
applicable federal, state, or local laws, including appropriate tax withholdings.
Nothing in this Agreement may be deemed or interpreted as requiring the City
to pay, directly or by way of reimbursement to the Employee, any federal or
state income tax liability that the Employee may incur as a result of this
Agreement or any of the transactions, benefits, or payments contemplated in
this Agreement. The Employee shall comply with all applicable Internal
Revenue Service and California Department of Revenue requirements and
regulations concerning the transactions. benefits, or payments contemplated
in this Agreement.
Section 6. General Business Expenses; Electronic Equipment
A. General Expenses. The City will reimburse the Employee for
reasonable miscellaneous expenses properly incurred in the course of
performing the duties of her position. The Employee shall timely submit all
receipts and other supporting documentation requested by the City.
B. Communications Equipment. The City will provide the
Employee with a combined cellular telephone and e-mail device, and an Ipad
device for the Employee's use in the performance of the duties of her position.
This equipment remains the property of the City.
Section 7. Confidentiality
The Employee acknowledges that the Employee has had and will have
access to confidential information ("Confidential Information") of, about, and
belonging to, the City. Confidential Information does not include public
documents or information that would otherwise constitute Confidential
Information but that has become public. The Employee covenants and
warrants that, both during and after the Employee's term of employment, the
Employee will not directly or indirectly use, divulge, furnish, or make
accessible Confidential Information to any person, firm, or corporation other
than persons, firms, or corporations employed and/or retained by the City in a
fiduciary capacity without the prior express written authorization of the City,
but instead the Employee will keep all Confidential Information strictly and
absolutely confidential except as otherwise provided in this Agreement or as
required by the California Public Records Act., Govt. Code §§ 6250 - 6276.48.
Section 8. Property of the City
All business plans, financial data, reports, memoranda, correspondence,
and all other documents pertaining to the current or prospective business of
the City are and will at all times remain the property of the City.
Section 9. Termination
A. Basis for Termination. Notwithstanding anything to the
contrary contained elsewhere in this Agreement, this Agreement shall
terminate upon the occurrence of any of the following events: (a) the
Employee's death; (b) the Employee's resignation; or (c) termination of the
employment of the Employee by the City Council for any reason, or for no
reason, at any time.
B. Notice of Termination. The City shall provide the Employee with
not less than thirty (30) days advance written notice of the City's intent to
terminate the employment of the Employee pursuant to this Agreement;
provided, however, that not less than twenty four (24) hours advance written
notice need be provided by the City in the event the Employee has been
convicted of fraud, misappropriation, or embezzlement involving property of
the City, or of a felony offense or other criminal act, or has engaged in conduct
that causes, or may cause, substantial harm to the reputation of the City.
E. Resignation. In the event that the Employee desires to
voluntarily resign the position of Interim City Manager, she must provide the
City with not less than thirty (30) days advance written notice, unless the
Employee and the City Council agree otherwise in writing.
Section 10. Indemnification
The City will defend, hold harmless, and indemnify the Employee
against and for all losses sustained by the Employee in direct consequences of
the discharge of the Interim City Manager's duties on the City's behalf for the
period of employment. Such a duty shall not extend to any judgment for
damages arising out of any willful wrongdoing. This indemnification shall
extend beyond termination of employment and the otherwise expiration of this
agreement to provide protection for any such acts undertaken were committed
in the Employee's capacity as Interim City Manager. This indemnity provision
shall survive the termination of the Agreement and is in addition to any other
rights or remedies that the Employee may have under the law.
Section 11. Notices
Notice pursuant to this Agreement must be given by depositing in the
custody of the United States Postal Service, postage prepaid, addressed as
follows:
If to the City: Mayor
Copy to: Executive Assistant to the City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
If to the Employee: Amy Chan
Alternatively, notice required pursuant to this Agreement may be served
personally. Notice will be deemed given as of the date of personal service or as
the date of deposit of such written notice in the course of transmission in the
United States Postal Service.
Section 12. General Provisions
A. Entire Agreement. This Agreement constitutes the sole and
entire agreement between the City and the Employee relating to the
employment of the Employee by the City. This Agreement supersedes all prior
or contemporaneous agreements, understandings, and representations, oral
and written, with respect to the employment of the Employee by the City.
B. Amendments. The parties may amend any provision of this
Agreement in writing signed by both parties. Any such amendments will be
deemed to be a part of this Agreement.
C. Binding Effect. This Agreement is binding on the City and the
Employee as well as their heirs, assigns executors, personal representatives,
and successors in interest.
D. Severability. The invalidity or partial invalidity of any portion of
this Agreement will not effect the validity of any other provision. If any
provision of this Agreement is held to be invalid, then the remaining
provisions will be deemed to remain in full force and effect.
E. No Waiver. Any failure in the exercise of either party to enforce
any provision of this Agreement shall not prejudice the party's right to
demand strict performance or enforcement of any future performance required
under this Agreement.
F. Assignment. This Agreement with respect to the Employee is
personal in nature and the Employee will not assign this Agreement or any of
the Employee's rights or obligations under this Agreement without the written
consent of the City.
G. Governing Law. The execution, validity, construction,
interpretation, performance, and enforcement of this Agreement is governed
by the internal laws, but not the conflict of laws rules, of the State of
California. Nothing in this Agreement is intended to abrogate the Employee's
rights and obligations under California law.
H. Acknowledgements. The parties mutually acknowledge that they
have entered into this Agreement voluntarily and have had an opportunity to
have this Agreement reviewed by counsel of their choosing.
CITY OF CUPERTINO
By:
Mark Santoro, Mayor Date
Attest:
By: - AC. =� J� Lt-t7-1
City Clerk Date
EMPLOYEE
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Amy Chan Date
Approv$d as to form:
:
Carol Korade, City Attorney