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CC Resolution No. 8947 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; [ORD/RES/RC/D2] 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino that Resolution No. 8900 be modified to incorporate the agreement herein attached as part of his compensation as fixed pursuant to § 36506 of the California Government Code. The Mayor of the City of Cupertino is authorized to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino, duly held on the 17th day of August, 1993, by the following vote: Vote Members of the City Council AYES: Dean, Goldman, Koppel, Sorensen, Szabo NOES: None ABSENT: None ABSTAIN: None APPROVED: /s/ Nick Szabo Mayor, City of Cupertino ATTEST: /s/ Kim M. Smith City Clerk [ORD/RES/RC/D2] 2 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: Paraqraph 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 [D2/AB/A/L/S] 1 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 [D2/AB/A/L/S] 2 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 [D2/AB/A/L/S] 3 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. [D2/AB/A/L/S] 4 Paragraph 5 Compensatïon 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 a.s 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. [D2/AB/A/L/S] 5 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 [D2/AB/A/L/S] 6 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 McQuillañ 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 [D2/AB/A/L/S] 7 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. [D2/AB/A/L/S] 8 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: [D2/AB/A/L/S] 9 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. Paraqraph 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- [D2/AB/A/L/S] 10 tion does not involve àny 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. [D2/AB/A/L/S] 1 1 Executed on , 19 , Cupertino, California. /~ù~µ¡;;:n CHARLES T. KILIAN MAYOR, CITY OF CUPERTINO ATTEST APPROVED AS TO FORM ~ r::{)Lßß~ RICHARD ABDALAH, Special Counsel [D2/AB/A/L/S] 12