Exhibit CC 12-17-13 Item #130
CC 12 -17 -13 Item #13
Redline Version
FIRST AMENDED EMPLOYMENT CONTRACT FOR CITY•ATTORNEY
This First Amended Employment Contract is made and entered into
this "day of December,_, by and b_etw_ een the CITY OF CUPERTINO, c . - Deleted: 21=
Deleted: October
STATE OF CALIFORNIA, a Municipal Corporation, by and through its City f Deleted: 2009
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 teens and conditions of said employment.
NOW THEREFORE, in consideration of dic mutual covenants herein
contained, the parties agree as follows:
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ARTICLE I TERM OF EMPLOYMENT
1. Section 1.01. Term of the Contract:
This Contract priginally. began on the date the PERS_ employment _and_ - - - Deleted: will commence
group status of EMPLOYEE was finalized,_ _unless_ extended _ by_ written_ - - - Deleted: is
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 Expifation: 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
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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;
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V
(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
tern 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
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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 70468.76 Payable-in- installments at the time as other -,- Deleted: 17,145
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 Departrn(.nt 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 employee "s, 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
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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
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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
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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., 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
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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 teen 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
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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 2.18.1.10 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
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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 teen 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 tenninated by the EMPLOYER prior to
expiration of this Contract, while still willing and able to
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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
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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
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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.
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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 terns of this Contract, the prevailing
party shall be entitled to recover reasonable attorney's fees and
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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:
City Clerk Mayor
APPROVED AS TO FORM:
Timothy Davis, Partner - "EMPLOYEE" - _ _ - _ - Deleted: Linda A. Tripoli, Esq.
Burke, Williams & Sorensen, LLP
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