Exhibit CC 11-01-2016 Item No. 5 Approve the First Amendment of the Employement Contract for the City Attorney and Appointed Employee's Compensation ProgramCUPERTINO
Subject
ADMINISTRATIVE SERVICES DEPARTMENT
CITY HALL
10300 TORRE AVENUE• CUPERTINO, CA 95014-3255
TELEPHONE : (408) 777-3227 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: November 1, 2016
Cc u(,/J~
#s
Approve the First amendment of the Employment Contract for the City Attorney and
Appointed Employee's Compensation Program.
Recommended Action
1. Adopt Draft Resolution No. ___ approving the First Amendment to the
Employment Contract for the City Attorney.
2. Adopt Draft Resolution No. __ approving Amendment to the Appointed
Employee's Compensation Program.
Discussion
The City Council conducted its annual evaluation of the City Attorney on Wednesday,
September 14, 2016. Based on the performance evaluation and changes in compensation for
other employee groups, the Council desires to consider increasing the compensation to the
City Attorney 4% for equity/performance and an additional 2.5% to reflect the cost of living
adjustments approved for all other employees within the City. The City Attorney will also
be subject to the amendments to the Appointed Employees Compensation Program.
On October 31, 2016 the City Attorney requested that the following changes be made to his
employment contract:
Section 5.01 B -Replace with the same language found in City Manager's Fourth Amended
Employment Contract Section 5.01 B
This request was forwarded to Renne Sloan Holtzman Sakai LLP, Public Law Group
(PLG) for review. PLG agreed with requested change and this change is now listed in the
redline and clean versions of the attachments.
Fiscal Impact
Approval of the above will increase the FY 2016-17 budget appropriations by $13,638.
Prepared by: Jaqui Guzman, Assistant to the City Manager
Reviewed by: Kristina Alfaro, Administrative Services Director
Approved for Submission by: David Brandt, City Manager
Attachments:
A -Draft Resolution Amending Employment Contract
B -Employment Contract for City Attorney
C-Redlined Employment Contract for City Attorney
D -Draft Resolution Amending Appointed Employees' Compensation Program
E -Appointed Employees' Compensation Program
F -Redlined Appointed Employees' Compensation Program
FIRST AMENDED EMPLOYMENT CONTRACT FOR CITY ATTORNEY
This Amended Employment Contract is made and entered into this
2-0th dav of October, 20151st day of November, 2016 , 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
forth the terms and conditions of said employment.
NOW THEREFORE , in consideration of the mutual covenants herein
contained, the parties agree as follows:
1
ARTICLE I TERM OF EMPLOYMENT
Section 1.01. Tenn 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 January 4 , 2020, EMPLOYEE shall notify EMPLOYER of the expiration date
of January 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 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 fo1ih in Article V of this
Contract and the ordinance provisions as set forth in Section 2.18.110 of the
Cupertino Municipal Code.
2
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 opm10ns 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;
3
( 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 . Perfonnance Evaluation Procedures: The City Council
shall review and evaluate the perfo1mance 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.
4
'
ARTICLE III COMP EN SA TION
Section 3.01. Compensation: EMPLOYER agrees to · pay to
EMPLOYEE for services rendered by him pursuant to this Contract a
monthly base salary of $17,85019,218.38 , payable in installments at the time
as other employees of EMPLOYER are paid. Per the Appointed Employees '
Compensation Program, effective the first full pay period in July 2017, a 0.75%
salary increase will be added to the salary range of each classification in the unit.
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. Notwithstanding the above , EMPLOYER and EMPLOYEE agree that
there shall be no further salary adjustments or bonuses for 2016. 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 IV EMPLOYEE BENEFITS
5
Section 4.01. Vacation and Sick Leave: EMPLOYEE shall be
credited with 10 days of vacation and 5 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 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 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 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 tenn of this Contract.
6
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
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 incurred 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 tenn of this Employment Contract.
Section 4 .05. Moving and Relocation Expenses: EMPLOYEE shall be
reimbursed or EMPLOYER may pay directly for the actual expenses incurred of
packing, unpacking, and moving himself, his family , and his p ersonal property
from Castro Valley to Cupe1iino , 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 Developm ent: EMPLOYER hereby agrees to
pay travel and subsistence expenses of EMPLOYEE for professional and office
7
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 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 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 terminate the
8
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 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 th-e-termination, in an amount equivalent to nine months
aggregate salary and aggregate medical insurance benefit
allowance if there are nine or more months prior to the expiration
date of this contract. If there are less than nine months remaining
the tenn of the contract, then the single lump sum payment made
on the effective day of tennination shall be in an amount equal to
9
the monthly aggregate salary and aggregate medical benefit of the
EMPLOYEE multiplied by the numbers of months left on the
unexpired term of the Contract.or an amount eaual to the monthlv
salary of the EMPLOYEE multiplied by the number of months left
on the unexpired tenn of this contract, ·.vhichever is less. 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 his aggregate salary and aggregate medical
insurance benefit allowance until one year and one day after the
commencement of the Contract and no additional severance
navrnent is owin2'. 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 th e
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 ,
10
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
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. Fonn 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:
11
a. The CITY : Mayor and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
b. EMPLOYEE: Randolph Stevenson Horn
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.
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 perfmmance 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 nr .;mit
results in a judgment against EMPLOYEE, EMPLOYER shall pay any such
12
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 ef.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
involvin2: an abuse of his office.
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 tenns 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 pro v ision, or any portion thereof,
contained in this Contract is held unconstitutional , invalid or unenforceable, the
13
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 L. Davis, Partner "EMPLOYEE"
Burke, \¥illiams & Sorensen , LLPRenee
Sloan Holtzman Sakai on behalf of the
City
14
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 January 4, 2020, EMPLOYEE shall notify EMPLOYER of the expiration date
of January 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 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.
2
FIRST AMENDED EMPLOYMENT CONTRACT FOR CITY ATTORNEY
This Amended Employment Contract is made and entered into this 1st
day of November, 2016, 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
forth the terms and conditions of said employment.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows :
1
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 opm10ns 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;
3
( 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 . Perfmmance Evaluation Procedures: The City Council
shall review and evaluate the perfonnance 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.
4
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 $19,218.38, payable in installments at the time as other
employees of EMPLOYER are paid. Per the Appointed Employees'
Compensation Program, effective the first full pay period in July 2017, a 0 . 75%
salary increase will be added to the salary range of each classification in the unit.
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. Notwithstanding the above, EMPLOYER and EMPLOYEE agree that
there shall be no further salary adjustments or bonuses for 2016. 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 IV EMPLOYEE BENEFITS
5
Section 4.01. Vacation and Sick Leave: EMPLOYEE shall be
credited with 10 days of vacation and 5 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 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 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 employees
covered under the Appointed Employees' Compensation Program (except as
specified in this Contract). Notwithstanding the above , EMPLOYEE wai ves 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.
6
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
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 incurred 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 incurred 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
7
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 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 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 terminate the
8
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 termination, in an amount equivalent to nine months
aggregate salary and aggregate medical insurance benefit
allowance if there are nine or more months prior to the expiration
date of this contract. If there are less than nine months remaining
the term of the contract, then the single lump sum payment made
on the effective day of termination shall be in an amount equal to
9
the monthly aggregate salary and aggregate medical benefit of the
EMPLOYEE multiplied by the numbers of months left on the
unexpired term of the Contract. 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
termination in an amount equivalent to the difference between nine
months 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
10
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. 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: 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
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 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
EMPLOYEE outside the scope of his 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.
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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 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:
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"EMPLOYEE"
Renee Sloan Holtzman Sakai on behalf of
the City
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