Charles Kilian agreement
RESOLUTION NO. 8947
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CUPERTINO AMENDING RESOLUTION NO.
8900 WITH RESPECT TO COMPENSATION OF THE
CITY ATTORNEY
WHEREAS, Resolution No. 8900 Appointing the City
Attorney, Describing his Duties and Providing for His
Compensation was adopted by the City Council on June 21,
1993; and
WHEREAS, The City Council and the City Attorney
wish to provide, in the future, for an alternate method
of compensation which will limit legal costs, enable the
City to more accurately budget for legal costs, and
stabilize the compensation paid to the City Attorney;
and
WHEREAS, the City Attorney is willing to forego
his non-municipal private legal practice, at its current
level, in reliance.upon a future schedule of compensa-
tion, which would allow him to devote more of his time
to the representation of the City of Cupertino;
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AGREEMENT FOR LEGAL SERVICES
City of Cupertino, a California municipality
located at 10300 Torre Avenue, City of Cupertino,
California (95014-3202) (hereinafter referred to as
"City") and Charles T. Kilian, whose business address is
1740 Technology Drive, Suite 250, San Jose, California
95110 (hereinafter referred to as "City Attorney"), in
consideration of the mutual promises made herein, agree
as follows:
Paragraph 1 Term of the Agreement
The provisions of this Agreement shall commence
upon its execution and shall, unless extended pursuant
to paragraph 2 of this Agreement, or terminated early
pursuant to Paragraph 3 of this Agreement, expire on
December 31, 1999.
Paragraph 2 Notice of Expiration/Automatic Extension
At least one year prior to expiration of this
Agreement or of any extension thereof, either party may,
by written notice serve upon the other, a notice of
non-renewal of this Agreement. If neither party serves
such notice, then this Agreement is automatically ex-
tended for one additional year under the same terms and
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conditions. It is the intent of the parties that each
party shall provide the other the maximum notice of
non-renewal as described herein to allow for an orderly
transition of City Attorney responsibilities and duties
should this Agreement not be renewed.
Paragraph 3 Early Termination
Notwithstanding any provision contained in this
Agreement to the contrary, the City Attorney holds
office at the pleasure of the City Council and therefore
this Agreement, or any extension thereof may be termi-
nated, at any time by the City upon written notice. In
the event that the City terminates this Agreement prior
to its expiration for cause, as defined herein, then
such termination may occur immediately and, in that
event, the City will have no further obligation, finan-
cially or otherwise, to the City Attorney under the
terms of this Agreement.
In the event that the City terminates this Agree-
ment prior to its expiration for any reason other than
for cause, then the City agrees to pay to City Attorney,
in addition to any compensation previously earned under
the terms of this Agreement, a payment of one year's
retainer of no less than $105,000 payable at the City
Attorney's option in lump sum upon termination, in lump
sum on January 1 of the year following termination, or
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in twelve equal monthly installments.
The parties intend by this Agreement to provide
this additional payment in order to defray the City
Attorney's costs in re-entering private practice at the
level he had prior to the execution of this Agreement.
It is also recognized by the parties, that in reliance
upon this Agreement, the City Attorney will forthwith
take steps to terminate his current leasing arrangements
with other private attorneys and that therefore, said
additional payment provision described herein, shall
become effective immediately upon the execution of this
Agreement. Notwithstanding any provision contained in
this Agreement to the contrary, this Agreement, or any
extension thereof, may be terminated by the City
Attorney, without further obligation, in the event he is
appointed or elected to judicial office.
As used herein the term "for cause" shall mean
only the following:
1) Death of the City Attorney
2) The continued incapacity on the part of the
City Attorney to perform his duties for a period of
ninety (90) consecutive days or more.
3) The wilful breach of duty by the City Attorney
in the course and scope of his duties as City Attorney.
4) The habitual neglect by the City Attorney of
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his duties.
5) The wilful or permanent material breach of any
obligations contained in this Agreement.
6) Disbarment of the City Attorney or suspension
of the City Attorney's right to practice law in Cali-
fornia.
7) The conviction of the City Attorney of any
felony involving moral turpitude.
Paragraph 4 Duties of City Attorney
The duties and responsibilities of the City
Attorney shall be those contained in Section 3 of
Resolution No. 8900 previously adopted by the City
Council. However, the City Attorney shall be available
to the City Councilor staff up to a maximum of 75% of
his normal working time (amounting to approximately 130
hours per month). If at any time during the term of
this Agreement, or any extensions thereof, the City
requires the use of the City Attorney's time in excess
of 75%, then, in that event, the parties will meet and
confer in good faith, regarding alternative arrangements
for legal services including retaining additional at-
torneys and/or adjusting the City Attorney's compensa-
tion schedule.
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Paragraph 5 Compensation schedule
A. Current Schedule
The City Attorney's compensation from the date
of the execution of this Agreement until December 31,
1994 shall, unless modified by agreement of the parties,
remain as it currently exists pursuant to Resolution No.
8900 previously adopted by the City Council.
B. Flat Retainer Commencing January 1, 1995
The City Attorney's initial retainer commenc-
ing January 1, 1995 shall be $105,000 annually for the
performance of all duties and responsibilities for the
City of Cupertino as City Attorney. The initial re-
tainer will be automatically increased at the same per-
centage, and at the same time, as any increase in the
compensation of the City Manager. The payment of the
annual retainer shall be made by the City on a bi-weekly
basis and shall be subject to withholding in the same
manner as are the salaries of City employees.
C. Fringe Benefits
The City shall also pay, commencing January 1,
1995, to City Attorney all fringe benefits which are, or
become available to the City Manager (excluding disabili-
ty insurance and housing allowance) based upon the annu-
al retainer above described.
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These benefits include but are not limited to,
PERS retirement benefits based upon his annual retainer,
health and dental benefits, life insurance, deferred
compensation program, and administrative leave payout.
The City Attorney shall receive 20 days paid vacation
per year, plus sick days, holidays, and administrative
leave.
In lieu of utilizing the City's disability
plan, the City Attorney shall be allowed to continue
with his own private disability plan at its current lev-
el of protection and the City shall reimburse him the
actual cost of said plan on a monthly basis.
Paragraph 6 Office Space
On or before December 31, 1995, the City shall
enter into a five year lease (commencing January 1,
1995) for adequate office space for the City Attorney, a
legal secretary, paralegal, and file storage which would
be in the vicinity of City Hall. The City Attorney and
City staff will cooperate in negotiating an appropriate
office lease. The City, in addition to the rent of said
space, shall pay for all improvements, carpets, and
drapes for said office.
Paragraph 7 Legal Secretary
Commencing January 1, 1995, the City shall hire,
as a City employee, the City Attorney's current legal
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secretary, or another secretary designated by him, free
of any hiring prerequisites of the City with the excep-
tion of a physical examination. As a City employee the
legal secretary will receive a salary equal to the range
and step of the City Manager's secretary and he or she
shall receive the same fringe benefits, including paid
vacation, which is available for that classification.
Secretarial "back-up" will be provided by a temporary
secretarial service at City's expense.
Paragraph 8 Law Library
This City will reimburse City Attorney for the
costs of on-going subscriptions to:
Attorney General's Opinions
McQuillan Municipal Law
League of California Cities
Municipal Law Handbook
Legal Secretary's Handbook
L.A. Daily Journal
Martindale-Hubbel Directory
Expenses
Other books and periodicals which the City
Attorney owns related to municipal law.
The City Attorney and City staff shall co-
operate in exploring an arrangement with an attorney's
office near City Hall for the City Attorney's use of an
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existing law library. If no such library is available,
the City Attorney and staff will develop an annual bud-
get for law book acquisition.
Paragraph 9 Supplies and Equipment
During the term of this Agreement, the City shall
pay for all office supplies and equipment necessary for
a law office, including, but not limited to, telephone,
fax machine, small copy machine, computer/word processor
for secretarial use (compatible with the City's system),
necessary furniture and file cabinets. The City shall
pay all on-going telephone bills except that the City
Attorney shall reimburse the City for all long distance
calls not used for City business. The City shall pay
for all City stationery and postage. The City shall
reimburse the City Attorney for all telephone calls made
on his car telephone for City purposes.
Paragraph 10 Malpractice Insurance
The City shall reimburse the City Attorney for 75%
of his malpractice insurance premium based upon current
coverage.
Paragraph 11 Taxes
The City shall reimburse the City Attorney for any
property tax, assessment, or business license tax owed
as a result of maintaining an office in Cupertino.
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Paragraph 12 Bar Dues
The City shall reimburse the City Attorney for all
state and local bar dues.
Paragraph 13 Moving Expenses
The City shall pay the actual cost of moving the
City Attorney's office to Cupertino (not to exceed
$1,500).
Paragraph 14 Backup and Special Projects
The City shall provide the City Attorney a discre-
tionary annual budget of $25,000 to retain an Assistant
City Attorney on an hourly basis to act in his absence
and to perform other special projects as needed.
Paragraph 15 Costs of Litigation, Travel and Education
The City shall pay for all non-attorney litigation
costs (filing fees, investigations, discovery costs,
etc.) and shall reimburse the City Attorney for all mile-
age, meals, and travel costs on the same basis as is
available to the City Manager. An educational and con-
ference budget shall be established similar to that of
the City Manager.
Paragraph 16 City Attorney Ordinance
A City Attorney ordinance shall be enacted prior
to January 1, 1995, which will govern the relationship
between the City Attorney and:
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1) Councilmembers
2) City Staff
3) Members of the Public
At the beginning of each fiscal year, the City
Attorney and City Manager shall meet and confer in good
faith regarding the allocation of the City Attorney's
time among City departments. Any department exceeding
its allocated time must obtain the City Manager's writ-
ten approval for additional time. The City Attorney and
City Manager shall meet and confer on a regular basis
for the purpose of adjusting time allocations among
departments.
Paragraph 17 Unanticipated Legal Events
The City Council and the City Attorney shall meet
and confer in good faith with respect to any unforesee-
able legal events which would require additional legal
support for the City.
Paragraph 18 Private Practice
The City Attorney may continue a limited private
practice from the office located in Cupertino provided
that such practice shall not interfere with his obliga-
tions to the City. Such private practice may include
representation of other public agencies, teaching, judg-
ing on a pro tem basis, advising and representing in-
dividuals and businesses provided that such representa-
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tion does not involve any real or apparent conflict of
interest.
Paragraph 19 Notices
Any notices given hereinunder by either party
to the other shall be in writing and may be transmitted
by personal delivery or by mail, registered or certi-
fied, post prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the
addresses appearing in the introductory paragraph of
this Agreement, but each party may change the address by
written notice in accordance with the section.
Paragraph 20 Attorneys' Fees and Costs
If any legal action is necessary to enforce or
interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees
and costs in addition to any relief to which he may be
entitled.
Paragraph 21 Independent Counsel
The City Attorney has prepared and reviewed this
Agreement only on his own behalf. The City has retained
the services of attorney Richard Abdalah to review and
approve the form of this Agreement on behalf of the City
Council.
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