12-129 Employment Contract for City Manager David Brandt SECOND AMENDED EMPLOYMENT CONTRACT FOR CITY MANAGER
This Amended Employment Contract is made and entered into this 21't 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 David Brandt (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 Mun.icipal Code, desires to employ the services of EMPLOYEE as City
Manager.
C. EMPLOYEE desires to accept employment as Cupertino City Manager.
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 1: TERM OF EMPLOYMENT
Section 1.01. Term of the Contract:
This Contract originally began on September 10, 2012, and will automatically expire
on September 9, 2016 unless extended in writing by the parties. On or within 30 days of
September 9, 2015, EMPLOYEE shall notify EMPLOYER of the expiration date of September 9,
2016. 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 EMPLOYER to provide such notice shall not affect the expiration
date of September 9,2016.
Section 1.02. Termination 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 the EMPLOYER, subject only to the severance provisions set forth in
Article V of this Contract, and the ordinance provisions as set forth in Section 2.28.090 of
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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 Manager subject only to the notice provisions set forth in Article V of.this Contract
and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal
Code.
EMPLOYEE further acknowledges that EMPLOYER has made no limited 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
Manager 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 Manager, including
but not limited to:
A. To see that all laws and ordinances of the City are duly enforced and that all
franchises, permits, licenses and privileges granted by the City are faithfully performed and
observed;
B. To control, order and give directions to all directors of departments and to
subordinate officers and employees of the City under his jurisdiction through their
department directors, and to transfer employees from one department to another;
C. The services and facilities of the City Treasurer and the City Attorney shall
be made available to the City Manager to the same extent and in the same manner that the
services are available to the City Council;
D. To appoint, discipline and dismiss any and all officers and employees of the
City except those elected by the electors of the City or whose appointment or dismissal is
denied to the City Manager under the laws of the state.
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The power to appoint given in the preceding paragraph does not include the power
to create a new position except as provided under Chapter 2.52;
E. To attend all meetings of the City Council unless excused therefrom by the
City Council;
F. 'To recommend to the City Council for adoption such measures and
ordinances as he deems necessary or expedient;
G. To keep the City Council at all times fully advised as to the financial
conditions and needs of the City,
H. To prepare and submit to the City Council the annual budget and to
administer it after adoption;
I. To purchase or cause-to be purchased all supplies for all of the departments
or divisions of the City. No expenditures shall be submitted or recommended to the City
Council except on-report and approval of the City Manager;
J. To make investigation into the affairs of the City and any department or division
thereof and any Contract or the proper performance of any obligation running to the City;
K. To investigate all complaints in relation to matters consuming the
administration of the government of the City and in regard to the services maintained by
public utilities in the City and to see that all franchises, permits and privileges granted by
the City are.faithfully observed;
L. To execute general supervision over all public buildings, public parks, streets
and other public property which are under the control and jurisdiction of the City Council;
M. To devote his entire working time, thought and energy to the duties and
interests of the City;
N. To receive and open all official mail and communications addressed either to
the Mayor or to the City Council;
O. To make reports and initiate recommendations as may be desirable or as
requested by the City Council;
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P. To perform such other duties and exercise such other powers as may be
delegated to him from time to time by ordinance, resolution or other action of the City
Council.
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 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 the EMPLOYEE at least annually, or on any 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 EMPLOYE for services
rendered by him pursuant to this Contract a monthly,base salary of$20,000, 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.
Notwithstanding the above, EMPLOYER and EMPLOYEE agree that there shall be no further
salary adjustments or bonuses for 2014. 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.
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ARTICLE IV EMPLOYEE BENEFITS
Section 4.01. Automobile Allowance. During the term of this Employment contract,
EMPLOYEE,to the extent necessary to perform his duties shall use his own personal vehicle.
EMPLOYER, in consideration thereof,shall pay EMPLOYEE the sum of$350 per month as an
automobile allowance. EMPLOYEEshall be responsible for the paymentof all operating
expenses of the vehicle, including,but not limited to,gasoline,oil,service and repair,and if
necessary,the replacement of his automobile. EMPLOYEE shall procure and maintain,at his
expense, a comprehensive automobile liability policy on the vehicle being used by him, in an
amount that is acceptable to the 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 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 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 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 Department Heads
of the City.
Section 4.04. Professional Dues and Subscriptions. EMPLOYER agrees to pay for
professional dues and subscriptions of EMPLOYEE directly related to his duties as City
Manager, provided the City Council has made provisions for such costs in the annual budget.
I
Section 4.05. Expenses. EMPLOYEE shall be entitled to reimbursement for all
reasonable expenses necessarily incurred by him in the performance of his duties upon
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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. EMPLOYER will pay EMPLOYEE the
amount of$20,000 intended to be used for relocation, housing and house hunting expenses
in EMPLOYEE's discretion.
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 lo,
city manager associations and other such national, regional, state; 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 his professional development and of 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 commencement of employment.
ARTICLE V TERMINATION AND NOTICE
Section 5.01. Termination of Employment and Severance:
A.Subject to the provisions of Section 2.28 of EMPLOYER'S municipal Code, EMPLOYEE
serves at the pleasure of EMPLOYER and nothing herein shall be taken to prevent, limit or
otherwise interfere with the right of EMPLOYERto terminate the services of EMPLOYEE with or
without cause; provided, however, EMPLOYER shall take no action to terminate the services of
EMPLOYEE,without cause,within ninety(90) days after an election at which one or more new
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members are elected to the City Council. 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 2.28 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 Manager, EMPLOYER
agrees to pay EMPLOYEE a single lump sum payment made on the effective date of termination,
in an amount equivalent to six months aggregate salary and aggregate medical insurance
benefit allowance if there are six or more months prior to the expiration date of this contract.
If there are less than six 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 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 six 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 six months aggregate
M
salary and medical insurance benefit allowance computed for the number of months of
notice actually given. Any such payment 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.
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D. Any payment to the EMPLOYEE pursuant to this subsection 5.01 shall be fully
reimbursed to the EMPLOYER 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 State 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:
David Brandt
Address to be inserted at time of relocation:
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. EMPLOYERshall 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 Manager.If EMPLOYER compromises or settles any
such claim or suit EMPLOYER shall p ay 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
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Revised 10.21.14
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.
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 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 CUPRTINO
&4 a. 0 � � 1 ZA ,
City Clerk Mayor
APPROVED AS TO FORM:
i
Timothy Davis, Partner MPLOYEE
Burke, Williams &Sorensen, LLP
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F.
AMENDED EMPLOYMENT CONTRACT FOR CITY MANAGER
This Amended Ern plo ment Contract is made and entered into this t� day of
August, 2013, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, A Municipal
Corporation, by and through its City Council (EMPLOYER), and David Brandt (EMPLOYEE).
RECITALS:
A. EMPLOYER i a Municipal ipal 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 y the services of EMPLOYEE as City
Manager,
C. EMPLOYEE desires to accept employment ent as Cupertino City Manager.
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 1: TERM of EMPLOYMENT
Section 1.01. Tern of the Contract:
This Contract originally began on September 10, 2012, and will automatically expire
on September 9, 2016 unless extended in writing by the parties. On or within 30 days of
September, 9, 2015, EMPLOYEE shalt notify EMPLOYER of.the expiration date of September 9.,
2016. in the evert that EMPLOYER does not intend to extend this Contract beyond
expiration, it skull notify EMPLOYEE in writing of its intent not to extend prior to the effective
date of expiration. Failure of EMPLOYER to provide such notice shall not affect the expiration
date of September 9, 2016.
Section 1.02. Termination 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 the EMPLOYER, subject only to the severance provisions set forth in
Article V of this Contract, and the ordinance provisions as set forth in Section 2.28.090 of
Reprised 9.5. 13
Page I
the Cupertino Municipal Code. In life 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 Manager subject only to the notice provisions set forth in Article V of this Contract
and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal
Code.
EMPLOYEE further acknowledges that EMPLOYER has made no limited expressed, or
written assurances of continued employment with the City of Cupertino other than as
specifically set forth in this Contract.
ARTICLE 1I: DIRTIES AND OBLIGATIONS of EMPLOYEE
Section 2.01. Duties. EMPLOYER hereby agrees to employ EMPLOYEE as City
Manager 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 ether
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 Manager, including
but not limited to:
A. To see that all laws and ordinances of the City are duly enforced and that all
franchises, permits, licenses and privileges granted by the City are faithfully performed and
observed;
B. To control, order and give directions to all directors of departments and to
subordinate officers and employees of the City under his jurisdiction through their
department directors, and to transfer employees from one department to another;
C. The services and facilities of the City Treasurer and the City Attorney shall
be made available to the City Manager to the sane extent and in the same manner that
the services are available to the City Council;
D. To appoint, discipline and dismiss any and all officers and employees of the
City except those elected by the electors of the City or whose appointment or dismissal is
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Revised 9.5.13
denied to the City Tanager under the lavers of the state.
The power to appoint given in the preceding paragraph does not include the power
to create a new position except as provided under Chapter ;
E. To attend all meetings of the City Council unless excused there from by the
City Council;
F. To recommend to the City Council for adoption such measures and
ordinances as he deems necessary or expedient;
G. To keep the City Council at all times fully advised as to the financial
conditions and needs of the City;
H. To prepare and submit to the City Council the annual budget and to
administer it after adoption;
I. To purchase or cause to be purchased all supplies for all of the departments
or divisions of the City. No expenditures shall be submitted or recommended to the City
Council except on report and approval of the City Manager;
J. To make investigation into the affairs of the City and any department or division
thereof and any Contract or the proper performance of any obligation running to the City;
K. To investigate all complaints in relation to natters consuming the
administration of the government of the City and its regard to the services maintained by
public utilities in the City and to see that all franchises, permits and privileges granted by
the City are faithfully observed;
L. To execute general supervision over all public buildings, public parrs, streets
and other public property which are under the control and jurisdiction of the City Council;
M. To devote his entire working tire, thought and energy to the duties and
interests of the City;
N. To receive and open all official mail and communications addressed either to
the Mayor or to the City Council;
0. To make reports and initiate recommendations as may be desirable or as
requested by the City Council;
P. To perform such other duties and exercise such other pourers as may be
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Revised 9.5.13
delegated to hire from time to time by ordinance, resolution r other action of the City
u nil.
Section 2.02. Devotion t Duties. EMPLOYEE agrees to devote productive time,
ability, and attention to the business of EMPL YER during the term of this Ern pl ym nt
Contract. This Contract shall not be interpreted nor intended to prohibit EMPLOYEE from
making passive personal investments, conducting private business affairs or providing
volunteer 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 the EMPLOYEE at least annually, or on any 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 Ill COMPENSATION
Section 3.01 Comppnsation. EMPLOYER agrees to pay to EMPLOYE for services
rendered by hire pursuant to this Contract a monthly base salary of $18,,333.33, payable in
installments at the time as other employees of EMPLOYER are paid.
EMPLOYEE'S monthly base salary shall be adjusted -by any percentage increase given to
Department Heads of EMPLOYER generally and shall not be decreased unless in a percentage
consistent with a decrease applicable to Department Heads of EMPLOYER generally.
Notwithstanding the above, EMPLOYER and EMPLOYEE agree that there shall be no further
salary adjustments or bonuses for 2012. At the time of EMPLOYEE's periodic evaluations,
EMPLOYER may consider an additional compensation package increase including, but not
limited to, merit pay or an additional increase in salary or benefits.
Section 3.02 Deferred Compensation. Cityshall provide to EMPLOYEE the same
deferred compensation plan that may be provided to other Department Heads and
Confidential Employees, if any.
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ARTICLE IV EMPLOYEE BENEFITS
Section 4.01. Automobile Allowance. During the term of this Employment contract,
EMPLOYEE, to the extent necessary to perform his duties shall use his own personal Vehicle.
EMPLOYER, in consideration thereof, shall pay EMPLOYEE the sum of$ 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 his automobile. EMPLOYEE shall procure and maintain, at his
expense, a comprehensive automobile liability policy on the Vehicle being used by hires, in an
amount that is acceptable to the EMPLOYER. wring 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 Bich 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 for Department {`lead 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 insurance, disability
insurance, Cupertino sports lub membership, administrative leave, fl ating 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, them shall be no reduction in benefits
unless EMPLOYER implements the same reduction of benefits to all other Department Muds
of the City.
Section 4. 4 Professional Du s and Subscriptions. EMPLOYER agrees to pay for
professional dues and subscriptions of EMPLOYEE directly related to his duties as City
Manager, provided the City Council has made provisions for such costs in the annual budget.
Section 4.05 Expenses. EMPLOYEE shall be entitled to reimbursement ent for all
reasonable expenses necessarily incurred by him in the performance of his duties upon
Page
Revised 9.5.13
presentation of vouchers indicating the amount and purpose thereof, and further provided
that such expenses are in accordance nth policies established from time to time by
EMPLOYER and consistent with budget allocations adopted by EMPLOYER YER for that purpose
during the terra of this Employment Contract.
Section 4.06 Moving and Relocation Expenses. EMPLOYER will pay EMPLOYEE the amount of
$20,000 intended to be used for relocation, Dousing and house hunting expenses in
EMPLOYEE's discretion.
Section 4.07 Professional Development. EMPLOYER hereby agrees to pay travl.and
subsistence expenses f EMPLOYEE for professional and office travel, meetings, and
occasions adequate to continue the professional development f EMPLOYEE and to
adequately pursue necessary official functions for EMPLOYER, including but not limited t,
city manager associations and other such national, regional, state, 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 his professional development and of the
good of the City provided the City Council has provided for sane in the annual budget.
Section 4.08 Housing Assistance. EMPLOYEE may lect to receive Housing Assistance for
Department Tads consistent with the EMPLE ER's Housing Assistance Policy in effect on the
date of commencement of employment.
ARTICLE V TERMINATION AND NOTICE
Section 5.01. Termination of.Employment and Severance:
A. Subject to the provisions of Section 2.28 of EM P LOYER's municipal Code, EMPLOYEE
serves at the pleasure f EMPLOYER and nothing herein shall be taken to prevent, limit or
otherwise interfere with the right of EMPLOYER to terminatethe services of EMPLOYEE with or
without cause; provided, however, EMPLOYER shall tale no action to terminate the services of
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Revised 9.5.13
EMPL YEE, without cause, within ninety days after an election at which one or more new
members are elected to the City Council. 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 2.28 are the sole and exclusive bases for an employment relationship
between EMPLOYEE and EMPLOYER.
R. if the EMPLOYEE is terminated by the EMPLOYER priorto expiration of this
Contract, while still willing and able to perform the duties of the City Manager, EMPLOYER
agrees to pay EMPLOYEE a single lump sum payrnent made on the effective date of termination,
in an amount equivalent to six months aggregate salary and aggregate medical insurance
benefit allowance if there are six or more months prior to the expiration date of this contract.
If there are less than six months remaining the term of the contract, then the single lump sure
payment made on the effective day of termination shall be in an amount equal to 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 six months prior notice of
nonrene oral or shall pay EMPLOYEE a single lump sum payment made on the effective date
of termination in an amount equivalent to the difference between six months aggregate
salary and medical insurance benefit allowance computed for the number of months of
notice actually given. Any such payment will release EMPLOYER from any farther 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. Not withstanding 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 EMPL YEE 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.
Page
Reprised 9.5. x 3
D. Any payment to the EMPLOYEE pursuant to this subsection 5.01 shall be fully
reimbursed to the EMPLOYER if the EMPLOYEE is convicted of a crime involving an abuse of
his office or position.
ARTICLE 111 MISCELLANEOUS
Section 6.01. Form of Notices. Notices pursuant t this Contract shall be in writing
given by deposit in the custody of the United State Postal Service, first class postage prepaid,
addressed as follows;
A. The City: Mayor and City Council
City of Cupertino
10800 Torre Avenue
Cupertino, C 5 14
B. EMPLOYEE:
David Brandt
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 th
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. Bondi . EMPL YE R shall bear the full cost of any fidelity or other bonds
required of EMPL YEE under any later or ordinance.
Section 6.03 Ind r nifi ati n. 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 EM PL YEE' duties as City Ma n ager. If EMPL YER corn prornises 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
Page
Reprised 9.5.13
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 lair
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 Severa bilit . If any provision thereof, contained in this Contract is held
unconstitutional, invalid or unenforceable, the remainder of this Contract shall be deemed
severable, shall not he 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:
_J
-It t-
Grace Schmidt, City Clerk
APPROVED AS TO FORM:
TimothyPav7is, Partner
url eir Williams & Sorensen, LLP
Page
Revised 9.5.13
CITY OF ERTI 16
Orrin Mahoney, Mayor
David Brandt, City Manager
EMPLOYMENT CONTRACT FOR CITY MANAGER
This Employment Contract is made and entered into this 7th day of August, 2012, by and
between the CITY of CUPERTINO, STAVE OF CALIFORNIA, A Municipal Corporation, -
by and through its City Council (EMPLOYER), and David Brandt (EMPLOYEE).
`TT A T -
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 ernploy the services of EMPLOYEE as-City Manager.
C. EMPLOYEE desires to accept employment as Cupertino City Manager.
D. It is the desire of both. EMPLOYE. and EMPLOYEE YEE to set forth the terms and
conditions of said emptoyrnent.
NOW THEREFORE, EFO E, ire consideration of the mutual covenants herein contained, the
parties agree as follows:
ARTICLE 1. TERM OF EMPLOYMENT
Section 1.01. Term of the Contract:
This Contract will commence on September 10, 2012, and will automatically expire on
September 9, 2016 unless extended in writing by the parties. on or within 30-days of
September 9, 2015, EMPLOYEE shall notify EMPLOYER of the expiration date of
September 9, 2016. In the event that EMPLOYER does not intend to extend this Contract
beyond expiration, it shall notify EMPLOYEE in writing of its latent not to extend prior to
the effective slate of expiration. Failure of EMPLOYER to provide such notice s atl not
affect the expiration date of September 9, 20161
Revised '7.1 1.1 11:00A -M
Section 1.02 Termination Prior to EUiration. Notwithstanding any provision contained
in this Contract to the contrary, EMPLOYEE understands and grees that he serves at the
pleasure of EMPLOYE. and may be terminated prior to expiration of this Contract at the
will of the EMPLOYER, subject only to the severance provisions set forth in Article V of
this Contract, and the ordinance provisions as sot forth in Section 2,28.090 of the Cupertino
Municipal Code, In life 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
Manager subject only to the notice provisions set forth in Article V of this Contract and the
ordinance provisions as set forth in Section 2.28,090 of the Cupertino Municipal Code,
EMPLOYEE further acknowledges that EMPLOYER has made no limited expressed, or
written assurances of continued employment with the City of Cupertino other than as
specifically set forth in this Contract.
ARTICLE II: BUTTES AND OBLIGATIONS OF EMPLOYEE
Section 2.01. duties, EMPLOYER hereby agrees to employ EMPLOYEE as City
Manager 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 Manager,
including but not limited to:
A. To see that all laves and ordinances of the City are duly enforced and that all
franchises, permits, licenses and privileges granted by the City are faithfully performed and
observed;
Rm s ed 7 ,11,1 11: OOAM
B. To control, order and give directions to all directors of departments and to
subordinate officers and employees of the City under his jurisdiction through their
department directors, and to transfer employees frorn one department to another;
C. The services and facilities of the City 'treasurer and the City Attorney shall be made
available to the City Manager to the same extent and in the same manner that the services are
available to the City Council;
D. To appoint, discipline and dismiss any and all officers and employees of the City
except those elected by the electors of the City or whose appointment or dismissal is denied
to the City Manager under the laws of the state.
The power to appoint given in the preceding paragraph does not include the power to
create a new position except as provided under Chapter 2.52;
To attend all meetings of the City Council unless excused there from by the City
Council;
F. To recommend to the City Council for adoption such measures and ordinances as
deems necessary or expedient;
G. To beep the City Council at all tunes fully adised..s to the financial conditiofts and
needs of the City;
H. To prepare and submit to the City Council the annual budget and to administer it
after adoption;
Devised 7.1 1.12 1 1 :00A.M
f, To purchase or cause to .be purchased all supplies for all of the departments or
divisions of the City. No expenditures shall he submitted or recommended to the City
Council except on report and approval of the City Manager;
J. To make investigation into the affairs of the City and any department or division
thereof and any Contract or the proper performance of any obligation running to the City;
K, To investigate all complaints in relation to matters consuming the administration of
the government of the City and in regard to the services maintained by public utilities in the
City acid to see that all franchises, permits and privileges granted by the City are faithfully
observed;
L. To execute general supervision over all public buildings, public parrs, streets and
other public property which are under the control and jurisdiction- of the City Council;
A To devote his entire working time, thought and energy to the duties and interests of
the City;
N. To receive and open all official mail and communications addressed either to the
Mayor or to the City Council;
0. To male reports and initiate recommendations as may be desirable or as requested
by the City Council;
P. To perforrn such other duties and exercise such other powers as may be delegated to
him from time to time by ordinance, resolution or other action of the City Council.
Revised 7.11,12 1 1;o , f
Section 2.0 2. 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 .g passive personal investments, conducting private business affairs or providing
volunteer 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 the EMPLOYEE at least amnually, or on any 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 IIl COMPENSATION
Section 3.01 CoMpensati n. EMPLOYER agrees to pay to EMPLOYEE for services
rendered by him pursuant to this Contract a monthly base salary of $17,500, 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 Leads of EMPLOYER generally.
Notwithstanding hstanding the above, EMPLOYER and EMPLOYEE agree that there shall be no f ether
salary adjustments or bonuses for 2012. At the time of 1 PLOY 's per 'lodie evaluations,
EMPLOYER may consider are additional compensation package increase including, g, but not
limited to, merit pay or an additional increase in salary or benefits.
Revised 7.1 1 , 12 1 1:00AM
Section 3.02 Deferred Corn ensation. City shall provide to EMPLOYEE the sane
deferred compensation plan that may be provided to other Department Leads and Confidential
Employees, if any.
ARTICLE Iv EMPLOYEE BENEFITS
Section 4,01. Automobile Allowance. During the tern of this Employment Contract,
EMPLOYEE, to the extent necessary to perform his duties shall use his own personal vehicle. .
EMPLOYER,, in consideration thereof, shall pay EMPLOYEE the sung of o 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 his automobile, EMPLOYEE shall procure and maintain, at his
expense, a comprehensive automobile liability policy on the vehicle being used by him, in an
amount that is cc p table to the 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.
Scction 4,02. Vacation and Sick Leave. EMP L Y 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 for Department rtment Head employees of EMPLOYES..
Section 4,03. Bengfits. 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 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
Revised 7.1 1 F 1 1 1:O AI
at the sole and absolute discretion of EMPLOYER at such tunes and to such extent as
EMPLOYE. may deem appropriate provided, however, there shall be no reduction in benefits
unless EMPLOYER implements the sate reduction of benefits to all other Department ent Heads of
the City.
Section 4,04 Professional Dues and Subscriptions. EMPLOYER agrees to pay for
professional dues and subscriptions of EMPLOYEE directly related to his duties as City
Manager, 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 him in the perfortnaticie, 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 t nn of
this Employment Contract.
Section 4,06 Moving and Relocation Expenses. EMPLOYE. will pay EMPLOYEE the
amount of $20,000 intended to be used for relocation, housing and house hunting expenses in
EI PL} YEE's discretion.
Section 4.07 Professional Development. EMPLOYER YEr 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 to adequately pursue
necessary official functions for EMPLOYER, including but not limited to, city manager
associations and other such national, regional, state, local government groups and co inittees
thereof which EMP LOYEE serves as a member, provided the City Council has made provisions
for such costs in the annual budget.
Devised 7,11.12 1 J F 0 M
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 of
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 Leads consistent with the MPL YE 's Housing Assistance Policy in effect on
the date of commencement of employment,
ARTICLE v TERMINATION AND NOTICE
Section 5,01 Termination of E-rnT)lQyvment and Severance:
A. Subject to the provisions of Section 2,28 of MPL 's municipal Code,
EMPLOYEE serves at the pleasure of EMPLOYER and nothing herein shall be taken to prevent,
limit or other-wise interfere with the right of EMPLOYER to terminate the services of
EMPLOYEE with or without cause; provided, however, EMPLOYER YER shall tale no action to
t n- ninate the services of EMPLOYEE, without cause, within ninety days after an election t
which one or more new members are elected to the City Council. There is no express or implied
promise made to EMPLOYEE for any form of continued ernployrnent, This Contr act and the
E1 PL YE 's municipal Code chapter 2,28 are the sale and exclusive bases for an employment
relationship between EMPLOYEE and EMPLOYER.
B, If the EMPLOYEE YEE is terminated by the EMPLOYER prior to expiration of this
Contract, while still willing and able to perfon -n the duties of the City Manager, EMPLOYER
agrees to pay EMPLOYEE YEE a single lump sum payment made on the effective date of
termination ,in an amount equivalent to six months aggregate salary and aggregate medical
insurance benefit allowance if there are six or rnore months prior to the expiration date of this
contract, If there are less than six months remaining. in the term of the contract, then the single
Revised 7.11,12 11:00AM
lump sum pariaent made on the effective day of termination shall be in an amount equal to 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 six months prior notice of nonrerrew l
or shatl pay EMPLOYEE a single lump sum payment made on the effective date of tennin Lion
in an amount equivalent to the difference between sic months aggregate salary and medical
insurance benefit allowance computed for the number of months of notice actually given. Any
such payment 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 EMPLOYE. to terminate, initiate
t nnination proceedings or request resignation.
D. Any payment to the EMPLOYEE pur ;scant to this subsection 5. 0 1 shal l be fuller
reimb-arsed to the EMPLOYER if the EMPLOYEE is convicted of a crime involving an abuse of
his office or position.
ARTICLE VI 1 MISCELLANEOUS
Section 6.01. F rna of Notices,
Revised F 1 1.12 11 ;00A
Notices pursuant to this Contract shall be in writing given by deposit in the custody of the
United State 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:
David Brandt
Address to be inserted at time of relocation:
�
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. Bondiqg. EMPLOYER shall bear the fall cost of any fidelity or other
bonds required of EMPLOYEE under any law or ordinance
Section 6.03 Indemnification. EMPLOYER shall defend; save hann1ess 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
per*fonnan e of MPL E's duties as City Manager, If EMPLOYER compromises ises or settles
Revised 7.11.1 11:00A
any such c laim or suit, EMP L Y R small pay the amount of any s ett l ernent, or if th e c l al i in
results in a judgunent against EMPLOYEE, EMPLOYER shall pay any such judgment. This
indemnification cues 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 Proisiri.
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 Se er l t . If any provision 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 frill force and effect.
IN WITNESS WHEREOF, EMPLOYER has caused this Contraot to be sighed 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.
Revised 7.1 1.1 1 1:00A-M
ATTEST:
City Clerk
APPROVED AS TO FORM:
CITY OF CUP TIN
Mayor
City Attorney EMPLOYEE