Exhibit CC 10-20-15 Item #14 Storm Drain Master Plan UpdateEMPLOYMENT CONTRACT FOR CITY ATTORNEY
This Employment Contract is made and entered into this 20th day of
October, 2015, by and between the CITY OF CUPERTINO, STATE OF
CALIFORNIA, a Municipal Corporation, by and through its City Council
(EMPLOYER), and Randolph Stevenson Hom (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. It is the desire of both EMPLOYER and EMPLOYEE to set
fo1th the terms and conditions of said employment.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
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ARTICLE I TERM OF EMPLOYMENT
Section 1.01. Term of the Contract:
This Contract begins on January 4, 2016 and will automatically expire on
January 4, 2021, unless extended in writing by the parties. On or within 30 days
of Janum·y 4, 2020, EMPLOYEE shall notify EMPLOYER of the expiration date
of Janum·y 4, 2021. 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
January 4, 2021.
Section 1.02. Terminations Prior to Expiration: Notwithstanding any
provision contained in this Contract to the contrary, EMPLOYEE understands
and agrees that he 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 fotth in A1ticle V of this Contract, and the ordinance
provisions as set fmth in Section 2.18.110 of the Cupertino Municipal Code. In
like manner, nothing in this Contract shall prevent, limit, or othe1wise interfere
with the right of EMPLOYEE to resign at any time from the position of City
Attorney subject only to the notice provisions set fotth in Atticle V of this
Contract and the ordinance provisions as set fo1th in Section 2.18.110 of the
Cupertino Municipal Code.
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EMPLOYEE further aclmowledges 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;
( c) Provision of all legal advice on behalf of the City to the City
Council, City Manager, and other City officers and employees;
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( d) Representation of the City, members of the City Council and
other City officers and employees in litigation as necessaiy;
(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 dwing 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 ai1d evaluate the perfo1mance of EMPLOYEE at least ainmally, 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.
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ARTICLE III COMPENSATION
Section 3.01. Compensation: EMPLOYER agrees to pay to
EMPLOYEE for services rendered by him pursuant to this Contract a
monthly base salary of $17,850, 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 provided in the Appointed Employees'
Compensation Program, generally, and shall not be decreased unless in a
percentage consistent with a decrease applicable to employees covered under the
Appointed Employees' Compensation Program, 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 employees covered under the Appointed Employees' Compensation
Program, if any.
ARTICLE N EMPLOYEE BENEFITS
Section 4.01. Vacation and Sick Leave: EMPLOYEE shall be
credited with I 0 days of vacation and 5 days of sick leave as of the
commencement of employment. Annual vacation and sick leave shall be
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accrued and administered in the same manner as vacation and sick leave is
administered in the Appointed Employees' Compensation Program of
EMPLOYER.
Section 4.02. Benefits: EMPLOYEE shall be entitled to receive
benefits provided by EMPLOYER at a level no less than that provided to
employees covered under the Appointed Employees' Compensation Program,
which presently consist of retirement benefits, family health coverage, life
insurance, disability insurance, Cupertino spo1ts 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 employees
covered under the Appointed Employees' Compensation Program (except as
specified in .this Contract). Notwithstanding the above, EMPLOYEE waives the
monthly automobile allowance provided under Policy No. 4 of the Appointed
Employees' Compensation Program and shall not be entitled to receive this
benefit during the term of this Contract.
Section 4.03. 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 his duties as City Attorney, provided the
City Council has made provisions for such costs in the annual budget.
Section 4. 04 Expenses: EMPLOYEE shall be entitled to
reimbursement for all reasonable expenses necessarily incun-ed by him in the
performance of his 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 4.05. Moving and Relocation Expenses: EMPLOYEE shall be
reimbursed or EMPLOYER may pay directly for the actual expenses incun-ed of
packing, unpacking, and moving himself, his family, and his personal property
from Castro Valley to Cupertino, California, not to exceed a maximum of $8,000.
Moving shall also include any necessary storage and insurance costs. EMPLOYEE
must present receipts of actual expenses to the City in order to receive
reimbursement.
Section 4.06. 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
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associations and such other national, regional, state, and local government groups
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 cournes, institutes, and seminars that are necessaiy
for his professional development and for the good of the City provided the City
Council has provided for same in the annual budget.
Section 4.07. Housing Assistance: EMPLOYEE may elect to receive
Housing Assistance in accordance with the EMPLOYER'S Housing Assistance
Program for Appointed Employees and Department Heads in effect as of the
execution date of this Contract, which is subject to approval by the City Council.
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 tenninate the
services of EMPLOYEE with or without cause; provided,
however, EMPLOYER shall take no action to terminate the
se1vices of EMPLOYEE within ninety (90) days after an election
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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 tenn 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 tennination, in an amount equivalent to nine months
aggregate salary and aggregate medical insurance benefit
allowance or an amount equal to the monthly salary of the
EMPLOYEE multiplied by the number of months left on the
unexpired term of this contract, whichever is less. If notice of
termination is given less than tln·ee months and one day after
commencement of the te1m of this Contract, EMPLOYER agrees
to pay EMPLOYEE his aggregate salary and aggregate medical
insurance benefit allowance until one year and one day after the
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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 for cause or 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
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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.
d. Any cash settlement received by the EMPLOYEE under paragraph
(b) above, must be fully returned to the CITY if the EMPLOYEE
is convicted of a crime involving an abuse of his office or position.
ARTICLE VI MISCELLANEOUS
Section 6.01. Fotm 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
10300TorreAvenue
Cupe1tino, CA 95014
b. EMPLOYEE: Randolph Stevenson Hom
Alternatively, notices required pursuant to this Contract may be personally
served in the same manner as is applicable to civil judicial process. Notice
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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.
Section 6.03. Indemnification: EMPLOYER shall defend, save
hannless 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 seltlement, 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 his duties.
Notwithstanding the above, EMPLOYEE must repay the CITY for any paid
administrative leave provided to EMPLOYEE pending investigations, or any
EMPLOYER paid criminal defenses, if EMPLOYEE is convicted of a crime
involving an abuse of his office.
Section 6.04. General Provisions:
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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 te1ms 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 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.
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ATTEST: CITY OF CUPERTINO:
City Clerk Mayor
APPROVED AS TO FORM:
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Timothy L. Davis, Partner "EMPLOYEE"
Burke, Williams & Sorensen, LLP
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