CC Resolution No. 21-110 approving the employment contract with James Throop City Manager and authorizing the Mayor to execute the contractRESOLUTION NO.21-110
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING THE EMPLOYMENT AGREEMENT BETWEEN THE CITY OF
CUPERTINO AND JAMES THROOP CITY MANAGER, AND AUTHORIZING
THE MAYOR TO EXECUTE THE CONTRACT
WHEREAS, THE City Council has hired an executive search firm which
conducted an open recruitment to permanently fill the position of City Manager; and
WHEREAS, the City Council desires to appoint the City Manager subject to
the terms of the At -Will City Manager Employment Agreement ("Employment
Agreement"), attached hereto as Exhibit A;
WHEREAS, the terms, conditions and provisions of the Employment
Agreement have been reviewed and approved by the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby
approve the aforementioned Employment Agreement and authorizes the Mayor
to execute said agreement on behalf of the City of Cupertino.
BE IT FURTHER RESOLVED that this Resolution is not a project under the
requirements of the California Quality Act of 1970 and the State CEQA Guidelines
(collectively, "CEQA") because it has no potential for resulting in physical change
in the environment. In the event that this Resolution is found to be a project under
CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section
15061(b)(3) because the Employment Agreement would have no or only a de
minimis physical impact on the environment. Where it can be seen with certainty
that the action does not have the potential for causing a significant effect on the
environment, CEQA does not apply. The foregoing determination is made by the
City Council in its independent judgment.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 16th day of November 2021, by the following vote:
Resolution No. 21-110
Page 2
Members of the City Council
AYES: Paul, Chao, Wei, Moore, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
1/// 71241 z
Darcy Paul, ayor
Date
City of Cupertino
ATTEST:
R
Kirsten Squarcia, ii Clerk
Date
CITY OF CUPERTINO
AT -WILL CITY MANAGER EMPLOYMENT AGREEMENT
This AT -WILL CITY MANAGER EMPLOYMENT AGREEMENT ("Agreement") is
entered into and made effective the 16" day of November, by and between the CITY OF
CUPERTINO, a general law city and municipal corporation ("City"), and James Throop, an
individual ("Employee").
RECITALS
WHEREAS, it is the desire of the City Council of the City of Cupertino (hereinafter the
"City Council") to employ an individual to serve in the position of City Manager, which position
is prescribed by state law and the City's Municipal Code; and
WHEREAS, California Government Code Section 34852 provides that an ordinance
establishing a city manager form of government shall define the powers and duties of the city
manager; and
WHEREAS, the powers and duties of the city manager of the City are set forth in Section
2.28.040 of the Cupertino Municipal Code; and
WHEREAS, based on Employee's executive and administrative qualifications and ability,
the City Council desires to employ Employee to serve as the city manager for the City; and
WHEREAS, Employee desires to perform and assume responsibility for the provision of
city manager services to the City; and
WHEREAS, the parties wish to establish the terms and conditions of Employee's provision
of city manager professional services to the City through this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, City and
Employee hereby agree as follows:
AGREEMENT
1.0 EMPLOYMENT & DUTIES
1.1 Duties. City hereby employs Employee as City Manager for the City to
perform the functions and duties of the City Manager, as specified in the City's Municipal Code
and in the Government Code of the State of California, and to perform such other legally
permissible and proper duties and functions as the City Council shall, from time to time, direct or
assign, including but not limited to the following:
(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 his 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. The power to appoint given in this
paragraph does not include the power to create a new position except as provided under Chapter
2.52 of the City's Municipal Code;
(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;
0) 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;
(1) 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;
2
(o) To make reports and initiate recommendations as may be desirable or
as requested by the City Council; and
(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.
Employee shall devote his best efforts and full-time attention to performance of these duties.
1.2 Work Schedule. It is recognized that Employee is expected to engage in
the hours of work that are necessary to fulfill the obligations of the position and must devote a
great deal of time outside the normal office hours to the business of the City. Employee
acknowledges that proper performance of the duties of City Manager will require Employee to
generally observe normal business hours, as set by the City and as may be duly revised from time
to time, and will also often require the performance of necessary services outside of normal
business hours, without the option for an alternative work schedule that includes a regularly
scheduled weekday off. Notwithstanding the foregoing, the City will permit Employee such
reasonable "time off' as is customary for exempt employees of the City, so long as the time off
does not interfere with normal business. Employee's compensation (whether salary or benefits or
other allowances) is not based on hours worked, and Employee shall not be entitled to any
compensation for overtime.
1.3 Other Activities. Employee shall focus his professional time, ability, and
attention to City business during the term of this Agreement. Employee shall not engage, without
the express prior written consent of the City Council, in any other business duties or pursuits
whatsoever, or directly or indirectly render any services of a business, commercial, or professional
nature to any other person or organization, whether for compensation or otherwise, that is or may
be competitive with the City, that might cause a conflict of interest with the City or that otherwise
might interfere with the business or operation of the City or the satisfactory performance of the
functions and duties of the City Manager.
1.4 Employment Status. Upon appointment to the City Manager position,
Employee shall serve at the will and pleasure of the City Council and understands that he shall be
an "at -will" employee without recourse to demotion rights and shall be subject to summary
dismissal without any right of notice or hearing, including any so-called due process pre -
disciplinary "Skelly" hearing, except as expressly provided in this Agreement. The City Council
may terminate Employee at any time in accordance with Section 3.4 below.
1.5 City Documents. All data, studies, reports, and other documents prepared
by Employee while performing his duties during the term of this Agreement shall be furnished to
and become the property of the City, without restriction or limitation on their use. All ideas,
memoranda, specifications, plans, procedures, drawings, descriptions, computer program data,
input record data, written information, and other materials either created by or provided to
Employee in connection with the performance of this Agreement shall be held confidential by
Employee to the extent permitted by applicable law, except as may be required by any
governmental agency or court of competent jurisdiction or by any obligation to disclose such
materials under the California Public Records Act. Such materials shall not be used by Employee,
without the prior written consent of the City Council, for any purposes other than the performance
3
of his duties. Additionally, no such materials may be disclosed to any person or entity not
connected with the performance of services under this Agreement, except as required by (a) law,
(b) any governmental agency, (c) subpoena, or (d) an order issued by a court of competent
jurisdiction.
1.6 Exclusion from Competitive Service. Employee understands,
acknowledges, and agrees that he is exempt from the City's personnel system and is subject to
Resolution No. 21-070, entitled "A Resolution of the City Council of the City of Cupertino
Amending the Appointed Employees' Compensation Program" ("Appointed Employees'
Compensation Program Resolution"), as may be amended from time to time at the sole discretion
of the City Council. In the event of a conflict between the Appointed Employees' Compensation
Program Resolution and this Agreement, this Agreement controls.
1.7 FLSA Exempt Status. Employee agrees that his position is that of an
exempt employee for the purposes of the Fair Labor Standards Act.
2.0 COMPENSATION AND REIMBURSEMENT
2.1 Compensation. For the services rendered pursuant to this Agreement,
Employee's initial base annual compensation shall be Two Hundred Eighty -Eight Thousand
Dollars ($288,000.00) annually ("Salary"), which shall be paid on a pro -rated basis biweekly at
the same time as other employees of the City are paid. Such Salary shall be adjusted for payroll
taxes, workers' compensation, and other payroll -related liability costs as determined by the City.
2.2 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. Employee shall be solely responsible for making
contributions to the deferred compensation plan.
2.3 Annual Salary Review. The City Council and Employee agree to conduct
an annual salary review concurrently with the annual performance evaluation set forth in Section
5.2. Following the annual performance review, the City Council may increase the Employee's
salary. Any action to approve an increase must be approved by a majority vote of the City Council
at a public meeting. The City Council and/or the Employee reserve the right to defer or refuse any
or all part of any base salary adjustment if either party determines that the fiscal state of the City
or any other public policy consideration warrants such action.
3.0 TERM
3.1 Commencement & Effective Date. Employee shall commence his
services hereunder at 12:01 a.m. Pacific Standard Time on January 3, 2022 or such earlier date
upon which the City Council and Employee may mutually agree, in either event such date will also
be deemed the effective date of this Agreement ("Effective Date").
3.2 Term. This Agreement shall remain in effect from the Effective Date
specified at Section 3.1 and shall automatically expire five (5) years thereafter, unless this
Agreement is terminated prior to that date pursuant to Section 3.3 or Section 3.4.
0
3.3 Termination by Employee. Employee may terminate this Agreement at
any time, provided Employee provides the City Council with at least thirty (30) days' advance
written notice prior to the effective date of termination, unless a shorter period is acceptable to
Council. In the event Employee terminates this Agreement, Employee expressly agrees that he
shall not be entitled to any severance pay.
3.4 Termination by City. The City Council may by majority vote terminate
this Agreement at any time with or without cause, by providing written notice of the reason(s).
The City Council's right to terminate Employee pursuant to this Section 3.4 shall not be subject to
or in any way limited by the Administrative Rules and Regulations of the Personnel Code
("Personnel Rules") or past City practices related to the employment, discipline, or termination of
the City's employees. Nothing herein shall be construed to create a property interest where one
does not exist by rule of law in the position of City Manager. Upon appointment to the City
Manager position, Employee will be and will remain an at -will employee serving at the pleasure
of the City Council.
(a) Termination by City for Cause. The City Council may terminate this
Agreement for cause at any time by providing Employee with five (5) business days' written notice
of the termination for cause and the facts and grounds constituting such cause. For purposes of this
Agreement, the term "cause" shall be defined to include any misconduct materially related to
performance of official duties, including but not be limited to any of the following: (1) breach of
this Agreement; (2) violation of the City's Municipal Code, ordinances, rules, and regulations,
including but not limited to the City's Personnel Rules; (3) willful or persistent material breach or
neglect of duties; (4) resume fraud or other acts of material dishonesty; (5) insubordination (which
shall be defined as a repeated failure to carry out a directive or directives of the City Council made
by the City Council as a body); (6) corrupt or willful misconduct in office; (7) conviction of a
misdemeanor involving moral turpitude (i.e., offenses contrary to justice, honesty, or morality) or
conviction of a felony under California law; (8) willful destruction or misuse of City property; (9)
habitual intoxication while on duty, whether by alcohol, prescription drugs, or non-prescription
drugs where they are being used in a manner not authorized by Employee's treating physician;
(10) use or possession of illegal drugs; (11) inexcusable absence without an authorized leave of
absence; (12) willful political activity involving the support of candidates for the City Council;
(13) theft or attempted theft; (14) financial mismanagement; (15) material dishonesty; (16) willful
violation of federal, state, or City discrimination and harassment laws concerning either members
of the general public or City's employee(s) while acting in the course and scope of employment
and/or while on City premises or time; (17) willful and unlawful retaliation against any City officer
or employee or member of the general public who in good faith reports, discloses, divulges, or
otherwise brings to the attention of any appropriate authority any facts or information relative to
actual or suspected violations of any law occurring on the job or related directly thereto; (18)
willful violation of any conflict of interest or incompatibility of office laws; (19) performance of
material outside business interests that conflict directly with the activities and duties as City
Manager, but not including educational or professional training programs conducted by Employee
whether for personal financial gain or not; (20) refusal to take or subscribe to any oath or
affirmation which is required by law; (21) engaging in conduct tending to bring embarrassment or
disrepute to City; (22) any illegal or unethical act involving personal gain; (23) "abuse of office or
position" as defined in Government Code § 53243.4 (i.e., waste, fraud, and violation of the law
under color of authority and crimes against public justice, including crimes involving bribery and
corruption); or (24) any similar cause. For any of the foregoing, the City Council may, in its
discretion, place Employee on paid or unpaid administrative leave until resolution. If the City
Council terminates for cause this Agreement and the services of Employee hereunder, then the
City shall have no obligation to pay severance.
(b) Termination by City Council Without Cause. The City Council may
terminate Employee at any time without cause but rather based upon management reasons,
including but not limited to: (i) change of administration or (ii) incompatibility of management
styles. In the event Employee is terminated without cause, Employee expressly agrees that he shall
not be entitled to any severance pay as the result of the termination of this Agreement except as
provided in Section 4.1 below.
3.5 Waiver of Certain Discipline and Termination Rights. Employee may
have under the California or United States constitutions rights to a name -clearing hearing.
Employee expressly waives any rights afforded under City's personnel system or policies, and any
rights afforded to Employee under the Cupertino Municipal Code (including Chapter 2.52) or
under state or federal law, including Government Code § 54950 et seq. ("Brown Act"), to any form
of pre- or post- discipline or termination hearing, appeal, or other administrative process pertaining
to discipline or termination. Such rights waived under this Section 3.5 include the right under the
Brown Act (Government Code § 54957(b)) to have complaints or charges against an employee
heard in a public session upon Employee's request.
4.0 SEVERANCE
4.1 Severance Pay. If the City Council terminates Employee without cause and
Employee does not challenge such termination, including but not limited to by means of appeal or
civil or administrative claim, then City shall pay to Employee severance in an amount equal to his
monthly base salary (as defined in Section 2.1 above, calculated on a per diem basis) then in effect
multiplied by six (6), less applicable deductions and excluding deferred compensation or the value
of any other benefits.
Notwithstanding the foregoing, Government Code § 53260 provides that all contracts of
employment with a city must include a provision limiting the maximum cash settlement for the
termination of the contract to the monthly salary (excluding benefits) multiplied by the number of
months left on the unexpired term, but not more than 18 months if the unexpired term exceeds 18
months. Accordingly, should such proposed severance payment exceed the amount authorized to
be paid under Government Code § 53260, then the amount paid to Employee shall be reduced in
the amount necessary to comply with such statute (For example, if termination occurs with two (2)
months left in the term, severance would be equal to the monthly base salary multiplied by two (2)
rather than the six (6) months otherwise provided by this Section 4.1.).
4.2 No Severance Pay if Termination for Cause or Initiated by Employee. As
provided in Section 3.4(a), should Employee be terminated for cause, the City shall have no
obligation to pay the severance provided for in Section 4.1 above. As provided in Section 3.3,
should Employee initiate termination of this Agreement, the City shall have no obligation to pay
the severance provided for in Section 4.1 above.
6
4.3 Sole Rights. The severance rights provided in this Section 4.0 shall
constitute the sole and only entitlement of Employee with respect to severance pay in the event of
the termination, other than for cause. Employee expressly waives any and all other rights with
respect to severance pay except as provided herein. Any and all severance rights are conditioned
upon and in consideration for execution of the standard "Agreement of Separation, Severance, and
General Release" attached hereto in form only as Exhibit A.
5.0 PERFORMANCE EVALUATIONS
5.1 Purpose. The performance review and evaluation process set forth herein
is intended to provide review and feedback to Employee so as to facilitate more effective
management of the City. Nothing herein shall be deemed to alter or change the employment status
of Employee (as set forth in Section 1.4 above), nor shall this Section 5.0 be construed as requiring
"cause" to terminate this Agreement or the services of Employee hereunder.
5.2 Performance Evaluations. The City Council will review and evaluate the
performance of Employee on a monthly basis, or on any schedule deemed appropriate by the City
Council. In addition, the City Council will conduct an annual performance review and evaluation
of Employee in the first half of November of each year, concurrently with an annual salary review.
Any performance review (monthly, annual, or otherwise) will be conducted in accordance with the
purpose noted in Section 5.1 above, and will be based on specific criteria developed by the City
Council after consultation with Employee. Such criteria may be modified as the City Council may
from time to time determine.
5.3 Written Summary. The City Council may, at its sole discretion, elect to
provide a written summary of each performance evaluation to Employee within two (2) weeks
following the conclusion of the review and evaluation process, and may, at its discretion, schedule
at least one (1) closed personnel session with Employee to deliver and discuss the evaluation.
6.0 BENEFITS
6.1 Automobile Allowance. The City shall reimburse Employee for the use of
his personal automobile for official City business at the rate of Five Hundred Dollars ($500.00)
per month. The car allowance and parking expense reimbursements authorized by this Section 6.1
shall constitute full compensation for any and all expenses related to the operation and
maintenance of Employee's vehicle for City purposes. Employee shall maintain throughout the
term of this Agreement automobile liability insurance in an amount not less than Five Hundred
Thousand Dollars ($500,000.00) for bodily injuries or death of one person and Fifty Thousand
Dollars ($50,000.00) for property damage arising from one accident. Employee shall provide City
with evidence of such automobile liability insurance coverage, to consist of a certificate of
insurance or a copy of the insurance policy.
6.2 PERS. Employee is a "classic" member of Ca1PERS and shall participate
in the City's 2% at 60 formula subject to the terms and conditions in the Appointed Employees'
Compensation Program.
6.3 Sick, Vacation and Holida Leave. Upon commencement of employment,
employee shall be advanced forty (40) hours of sick leave and forty (40) hours of vacation leave.
U]
Employee shall thereafter receive sick, vacation, and holiday leave at the same level as all full-
time employees, subject to the terms and conditions in the City's Personnel Rules as amended
from time to time. Sick leave shall have no cash out value upon Employee's separation from the
City.
6.4 Administrative Leave. Employee shall accrue administrative leave as time
off from work, instead of pay or compensatory leave credit for overtime work, at the rate of eighty
(80) hours per year, subject to the terms of the Appointed Employees' Compensation Program.
Upon Employee's separation from City service for any reason, the City shall compensate Employee
for any accrued administrative leave. The value of accrued administrative leave shall be calculated
using Employee's prevailing pay rate on the date of Employee's separation from City service.
6.5 Professional Dues and Subscriptions. City agrees to pay for professional
dues and subscriptions of Employee directly related to his duties as City Manager, including but
not limited to membership in the International City Management Association ("1CMA") and the
California City Management Foundation ("CCMF"), provided the City Council has made
provisions for such costs in the annual budget.
6.6 Professional Development. City 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 City, including but not limited to city manager associations and
other such national, regional, state, and local government groups and committees on which
Employee serves as a member, provided that the City Council has made provisions for such costs
in the annual budget. City also agrees to pay tuition, travel, and subsistence expenses of Employee
for courses, institutes, and seminars that are necessary for his professional development and the
good of the City, provided that the City Council has provided for same in the annual budget.
6.7 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 City and consistent with budget
approved by the City Council for that purpose during the term of this Agreement.
6.8 Relocation Expenses. City shall reimburse Employee following provision
by Employee to City of any applicable receipts for moving and relocation expenses not to exceed
Five Thousand Dollars ($5,000.00) incurred by Employee and his household as a result of
accepting the offer of employment.
6.9 Housing Assistance. Employee may elect to receive Housing Assistance
in accordance with the City's Housing Assistance Program for Appointed Employees and
Department Heads, Resolution No. 15-092, in effect as of the execution date of this Agreement,
which is subject to approval by the City Council.
6.10 Other Benefits. Except as expressly provided in this Section 6.0,
Employee shall be entitled to receive benefits as provided for under the Appointed Employees'
Compensation Program, as amended from time to time, which presently consist of, but are not
8
limited to, retirement benefits, health coverage, life insurance, disability insurance, Cupertino
sports club membership, floating holidays, and holidays. These benefits are subject to modification
during the course of this Agreement at the sole and absolute discretion of City at such times and
to such extent as City may deem appropriate; provided, however, there shall be no reduction in
benefits unless City implements the same reduction of benefits to all other employees covered
under the Appointed Employees' Compensation Program; and further provided that in the event
of a conflict between the Appointed Employees' Compensation Program and this Agreement, this
Agreement shall control.
7.0 BONDS AND INDEMNIFICATION
7.1 Indemnification. To the extent mandated by the California Government
Code, the City shall defend, hold harmless, and indemnify Employee against any tort, professional
liability, claim or demand, or other legal action arising out of an alleged act or omission occurring
in the performance of Employee's services under this Agreement. This Section 7.1 shall not apply
to any intentional tort or crime committed by Employee, to any action outside the course and scope
of the services provided by Employee under this Agreement, or to any other intentional or
malicious conduct or gross negligence of Employee.
7.2 Bonds. City shall bear the full cost of any fidelity or other bonds, which
may be required in the. performance of Employee's services under this Agreement.
8.0 GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement represents the entire agreement
between the parties and supersedes any and all other agreements, either oral or in writing, between
the parties with respect to Employee's employment by the City and contains all of the covenants
and agreements between the parties with respect to such employment. Each party to this
Agreement acknowledges that no representations, inducements, promises, or agreements, orally or
otherwise, have been made by either party or anyone acting on behalf of either party, which are
not embodied herein, and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding upon either party.
8.2 Amendment. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing, which amendment shall require approval by the
affirmative vote of at least three (3) members of the City Council.
8.3 Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be personally served or shall be sufficiently given when served upon the other
party as sent by United States Postal Service, postage prepaid and addressed as follows:
To City:
To Employee:
City of Cupertino
Attention: City Clerk [On file with Human Resources Dept.]
10300 Torre Avenue
Cupertino, CA 95014
Notices shall be deemed given as of the date of personal service or upon the date of deposit in the
course of transmission with the United States Postal Service.
8.4 Conflicts Prohibited. During the term of this Agreement, Employee shall
not engage in any business or transaction or maintain a financial interest which conflicts or
reasonably might be expected to conflict with the proper discharge of Employee's duties under
this Agreement. Employee shall comply with all requirements of law, including but not limited to
Section 87100 et seq., Section 1090, and Section 1125 of the Government Code, and all other
similar statutory and administrative rules. Whenever any potential conflict arises or may appear to
arise, the obligation shall be on Employee to seek legal advice concerning whether such conflict
exists and Employee's obligations arising therefrom.
8.5 Effect of Waiver. The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of
any right or power at any one time or times be deemed a waiver or relinquishment of that right or
power for all or any other times.
8.6 Partial Invalidity. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall
nevertheless continue in full force without being impaired or invalidated in any way.
8.7 Governing Law, Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, and the parties agree that venue
for any action arising out of this agreement shall be in Santa Clara County, California.
8.8 Mandatory Government Code Provisions. Government Code §§ 53243-
53243.4 require that contracts between local agencies and its employees include provisions
requiring an employee who is convicted of a crime involving an abuse of their office or position
to provide reimbursement to the local agency for the following forms of payment: (i) paid leave
salary; (ii) criminal defense costs; (iii) cash settlement payments; and (iv) any non -contractual
settlement payments. Accordingly, the Parties agree that it is their mutual intent to fully comply
with these Government Code sections and all other applicable law as it exists as of the date of
execution of this Agreement and as such laws may be amended from time to time thereafter.
Specifically, the following Government Code sections are called out and hereby incorporated by
this Agreement:
§ 53243. Reimbursement of paid leave salary required upon conviction of crime
involving office or position.
§ 53243.1. Reimbursement of legal criminal defense upon conviction of crime
involving office or position.
§ 53243.2. Reimbursement of cash settlement upon conviction of crime involving
office or position.
§ 53243.3. Reimbursement of noncontractual payments upon conviction or crime
involving office or position.
10
§ 53243.4. "Abuse of office or position" defined.
Employee represents that Employee has reviewed, is familiar with, and agrees to comply fully
with each of these provisions if any of these provisions are applicable to Employee, including that
Employee agrees that any cash settlement or severance related to a termination that Employee may
receive from the City shall be fully reimbursed to the local agency if Employee is convicted of a
crime involving an abuse of Employee's office or position. The Government Code provisions
referenced in this Section 8.8 are attached hereto in Exhibit B.
8.9 Independent Legal Advice. The City and Employee represent and warrant
to each other that each has received legal advice from independent and separate legal counsel with
respect to the legal effect of this Agreement, or had the opportunity to do so, and the City and
Employee further represent and warrant that each has carefully reviewed this entire Agreement
and that each and every term thereof is understood and that the terms of this Agreement are
contractual and not a mere recital. This Agreement shall not be construed against the party or its
representatives who drafted it or who drafted any portion thereof.
%/I
[signature page follows]
11
IN WITNESS WHEREOF, the City of Cupertino has caused this Agreement to be
signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly
authorized, and Employee has signed and executed this Agreement.
CITY OF CUPERTINO
A Municipal Corporation
Darcy Paul
Mayor, City o no
Date: 1i11712-4 Z /
APPROVED AS TO FORM:
Ch
L�to hg- 0 679efee
Christopher D. Jensen (Nov 17, 2021 16:18 PST)
Christopher D. Jensen
City Attorney
ATTEST:
Kirsten Squarcia
City Clerk
Date: ii//9 /2-1
12
DAMES THROOP
An Individual
Date: l f b 2
EXHIBIT A
[FORM OF] AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL
RELEASE
1. PARTIES
This Agreement of Separation, Severance, and General Release (hereinafter referred to as the
"AGREEMENT") is entered into by and between the City of Cupertino, a general law city and
municipal corporation (hereinafter referred to as "THE CITY"), and , an individual
(hereinafter referred to as "EMPLOYEE").
2. RECITALS
2.1. EMPLOYEE was hired by THE CITY as an at -will City Manager effective
serving at the pleasure of the City Council of THE CITY pursuant to a written
contract, a copy of which is attached hereto as Exhibit A ("THE CONTRACT"). EMPLOYEE is
currently _ years old.
2.2. THE CITY and EMPLOYEE desire that EMPLOYEE resign and enter into a
severance agreement whereby EMPLOYEE receives severance compensation in exchange for
executing a general release and waiver of any and all claims that EMPLOYEE may have against THE
CITY, including but not limited to its elected and non -elected officials, employees, attorneys, and
agents. Accordingly, the parties hereto intend by this AGREEMENT to mutually conclude any and
all employment relationships between THE CITY and EMPLOYEE by means of EMPLOYEE's
voluntary separation as of This AGREEMENT sets forth the full and complete terms
and conditions concluding EMPLOYEE's employment relationship with the CITY and any
obligations related thereto, including any provided under THE CONTRACT.
2.3 In accordance with this AGREEMENT and with applicable state and federal
laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post -
employment rights, including but not limited to EMPLOYEE's rights under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee Retirement Income Security
Act of 1974 ("ERISA"), and the Health Insurance Portability and Accountability Act of 1996
("HIPAA").
3. CONSIDERATION
3.1 EMPLOYEE shall receive payment to him at the time of his voluntary
separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or all other
wage compensation/benefits owed to EMPLOYEE upon separation of employment, as required by
law or THE CONTRACT or any other agreement with THE CITY.
3.2. In exchange for the waivers and releases set forth herein, THE CITY shall also
cause to be paid to EMPLOYEE an additional compensatory payment by means of severance,
settlement and release in the form of a lump sum amount of and
cents ($ .00), as set forth in THE CONTRACT in the form of a check made payable to
EMPLOYEE to be mailed to EMPLOYEE at EMPLOYEE's home address via certified mail return
receipt requested within thirty (30) business days after the EFFECTIVE DATE (as defined below) of
this AGREEMENT.
3.3 In exchange for the severance payment provided for herein, EMPLOYEE, and
on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases,
acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials,
employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through,
under, or in concert with any of them, and each of them (hereinafter referred to as "THE CITY
PARTIES"), from any and all claims, charges, complaints, contracts, understandings, liabilities,
obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages,
actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown,
suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which
EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence, condition, event,
transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from
the beginning of time up to and including (hereinafter referred to collectively as
"CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or local
constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges
that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to,
claims based upon any alleged breach of THE CONTRACT or any other agreement of employment,
any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA,
COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged
wrongful termination in violation of public policy, any alleged breach of any express or implied
contract for continued employment, any alleged employment discrimination or unlawful
discriminatory act, or any claim or cause of action including but not limited to any and all claims
whether arising under any federal, state, or local law prohibiting breach of employment contract,
wrongful termination, or employment discrimination based upon age, race, color, sex, religion,
handicap or disability, national origin, or any other protected category or characteristic, and any and
all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage
Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act,
California Government Code §§ 12, 900 et seq., the Americans With Disabilities Act, Title VII of the
Civil Rights Act of 1964, the Public Safety Officers Procedural Bill of Right Act, and any other
federal, state, or local human rights, civil rights, or employment discrimination or employee rights
statute, rule, or regulation.
4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER
AREA AND OWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the
"ADEA") makes it illegal for an employer to discharge any individual or otherwise discriminate
with respect to the nature and privileges of an individual's employment on the basis that the
individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter
referred to as the "OWBPA," 29 U.S.C. § 626, etseq., Pub L 101-433, 104 Stat. 978 (1990)) further
augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the
waiver is knowing and voluntary. By entering into this AGREEMENT, EMPLOYEE
acknowledges that she/he knowingly and voluntarily, for just compensation in addition to anything
of value to which EMPLOYEE was already entitled, waives, and releases any rights she/he may
2
have under the ADEA and/or OWBPA. EMPLOYEE further acknowledges that she/he has been
advised and understands, pursuant to the provisions of the ADEA and OWBPA, that:
(a) This waiver/release is written in a manner understood by EMPLOYEE;
(b) EMPLOYEE is aware of and/or has been advised of his rights under the
ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently
may have under the ADEA, OWBPA and/or similar age discrimination laws;
(c) EMPLOYEE is entitled to a reasonable time of at least twenty-one (21) days
within which to review and consider this AGREEMENT and the waiver and release of any rights
he may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the
exercise of his own discretion, sign or reject this AGREEMENT at any time before the expiration
of the twenty-one (21) days;
(d) The waivers and releases set forth in this AGREEMENT shall not apply to
any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE
of this AGREEMENT;
(e) EMPLOYEE has been advised by this writing that he should consult with
an attorney prior to executing this AGREEMENT;
(f) EMPLOYEE has discussed this waiver and release with, and been advised
with respect thereto by, his counsel of choice, and he does not need any additional time within
which to review and consider this AGREEMENT;
(g) EMPLOYEE has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT;
(h) Notice of revocation within the seven (7) day revocation period must be
provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby
revoke my acceptance of our Agreement of Severance and General Release"; and
(i) This AGREEMENT shall not be effective until all parties have signed the
AGREEMENT and ten (10) days have passed since EMPLOYEE's execution ("EFFECTIVE
DATE").
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE understands
that California Civil Code § 1542 reads as follows:
"General Release — Claims Extin uig_ shed"
"A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at
the time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the debtor or
released party."
EMPLOYEE hereby waives the protection of Califomia Civil Code § 1542.
6. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might require a more
detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and
5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each
other party as follows:
7.1. Advice of Counsel: The parties hereto have received independent legal advice
from their respective attorneys concerning the advisability of entering into and executing this
AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge
that they have been represented by counsel of their own choice in the negotiation of this
AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully
explained to them by such counsel, or have had such opportunity to do so; and that they are fully
aware of the contents of this AGREEMENT and of its legal effect.
7.2. No Fraud in Inducement: No party (nor any officer, agent, employee,
representative, or attorney of or for any party) has made any statement or representation or failed to
make any statement or representation to any other party regarding any fact relied upon in entering
into this AGREEMENT, and neither party relies upon any statement, representation, omission, or
promise of any other party in executing this AGREEMENT, or in making the settlement provided for
herein, except as expressly stated in this AGREEMENT.
7.3. Independent Investigation: Each party to this AGREEMENT has made such
investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters
pertaining thereto, as it deems necessary.
7.4. Mistake Waived: In entering into this AGREEMENT, each party assumes the
risk of any misrepresentation, concealment, or mistake. If any party should subsequently discover that
any fact relied upon by it in entering into this AGREEMENT was untrue or that any fact was
concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall
not be entitled to any relief in connection therewith, including without limitation on the generality of
the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This
AGREEMENT is intended to be, and is, final and binding between the parties, regardless of any
claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake
of fact or law, or any other circumstance whatsoever.
7.5. Later Discovery: The parties are aware that they may hereafter discover claims
or facts in addition to or different from those they now know or believe to be true with respect to the
matters related herein. Nevertheless, it is the intention of the parties that EMPLOYEE fully, finally,
4
and forever settle and release all such matters, and all claims relative thereto, which do now exist,
may exist, or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of
such intention, the releases given here shall be, and remain, in effect as full and complete releases of
all such matters, notwithstanding the discovery or existence of any additional or different claims or
facts relative thereto.
7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless THE
CITY and THE CITY PARTIES from and against any and all claims, damages, or liabilities sustained
by them as a direct result of the violation or breach of the covenants, warranties, and representations
undertaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees
that he shall be exclusively liable for the payment of all taxes for which he is responsible, if any, as a
result of his receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition,
EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax
obligations as may be required by any federal, state, or local taxing authority, at any time, as a result
of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT.
7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute all such
further and additional documents as shall be reasonable, convenient, necessary, or desirable to carry
out the provisions of this AGREEMENT. EMPLOYEE shall provide THE CITY with consultation
services (including deposition or trial testimony) in any litigation involving THE CITY which is
reasonably related to acts or occurrences transpiring during his employment. Said services shall be
provided as needed by THE CITY at a rate of $100.00 per hour.
7.8. Return of Confidential Information and Property: Prior to the separation date,
EMPLOYEE shall submit a written inventory of, and return to the City Clerk, all City keys,
equipment, computer identification cards or codes, and other equipment or materials or confidential
documents provided to or obtained by EMPLOYEE during the course of his employment with THE
CITY.
7.9 No Pending Claims and/or Actions: EMPLOYEE represents that he has not
filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state, or
federal agency or court; that he will not do so at any time hereafter for any claim arising on any date
up to and including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or
court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY
PARTIES on behalf of EMPLOYEE, whenever or where ever filed, he will request such agency or
court to withdraw from the matter forthwith.
7.10. Ownership of Claims: EMPLOYEE represents and warrants as a material term
of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released, or granted,
or purported to assign, transfer, release, or grant, any of the CLAIMS disposed of by this
AGREEMENT. In executing this AGREEMENT, EMPLOYEE further warrants and represents that
none of the CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed,
or transferred in any fashion to any other person and/or entity.
7.11 Enforcement Fees and Costs: Should any legal action be required to enforce
the terms of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys' fees
and costs in addition to any other relief to which that party may be entitled.
7.12 Authori : Each party represents to the other that it has the right to enter into
this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT
to which they are a party or by which they are bound by entering into this AGREEMENT. The parties
represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further
represented and agreed that the individuals signing this AGREEMENT on behalf of the respective
parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose
behalf this AGREEMENT has been signed.
8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an admission
by THE CITY of any liability of any kind. THE CITY denies any liability in connection with any
claim and intends hereby solely to avoid potential claims and/or litigation and buy its peace.
8.2. Governing Law: This AGREEMENT has been executed and delivered within
the State of California, and the rights and obligations of the parties shall be construed and enforced in
accordance with, and governed by, the laws of the State of California.
8.3. Full Integration: tion: This AGREEMENT is the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral
and written agreements and discussions. This AGREEMENT may be amended only by a further
agreement in writing, signed by the parties hereto.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to
the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials,
attorneys, assigns, heirs, and successors in interest.
8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and
preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the
parties agree that same shall not be construed against any party.
8.6. Severability: In the event that any term, covenant, condition, provision, or
agreement contained in this AGREEMENT is held to be invalid or void by any court of competent
jurisdiction, the invalidity of any such term, covenant, condition, provision, or agreement shall in no
way affect any other term, covenant, condition, provision or agreement and the remainder of this
AGREEMENT shall still be in full force and effect.
8.7. Titles: The titles included in this AGREEMENT are for reference only and are
not part of its terms, nor do they in any way modify the terms of this AGREEMENT.
8.8. Counterparts: This AGREEMENT may be executed in counterparts, and
when each party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with other signed counterparts, shall constitute one
AGREEMENT, which shall be binding upon and effective as to all parties.
8.9. Notice: Any and all notices given to any party under this AGREEMENT
shall be given as provided in this paragraph. All notices given to either party shall be made by
certified or registered United States mail, or personal delivery, at the noticing party's discretion,
G
and addressed to the parries as set forth below. Notices shall be deemed, for all purposes, to have
been given on the date of personal service or three (3) consecutive calendar days following deposit
of the same in the United States mail.
As to EMPLOYEE:
At EMPLOYEE's home address on file with THE CITY.
As to THE CITY:
City of Cupertino
Attention: City Clerk
10300 Torre Avenue
Cupertino, CA 95015
IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and
executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has signed
and executed this Agreement, and the attorneys for THE CITY and EMPLOYEE, if any, have
approved as to form as of the dates written below.
DATED: EMPLOYEE
DATED:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
[EMPLOYEE's LAW FIRM]
By:
[Counsel]
By:
[NAME]
THE CITY
7
Mayor
EXHIBIT B
GOVERNMENT CODE SECTIONS 53243-53243.4
53243. On or after January 1, 2012, any contract executed or renewed between a local agency
and an officer or employee of a local agency that provides paid leave salary offered by the local
agency to the officer or employee pending an investigation shall require that any salary provided
for that purpose be fully reimbursed if the officer or employee is convicted of a crime involving
an abuse of his or her office or position.
53243.1.On or after January 1, 2012, any contract executed or renewed between a local agency
and an officer or employee of a local agency that provides funds for the legal criminal defense of
an officer or employee shall require that any funds provided for that purpose be fully reimbursed
to the local agency if the officer or employee is convicted of a crime involving an abuse of his or
her office or position.
53243.2. On or after January 1, 2012, any contract of employment between an employee and a
local agency employer shall include a provision which provides that, regardless of the term of the
contract, if the contract is terminated, any cash settlement related to the termination that an
employee may receive from the local agency shall be fully reimbursed to the local agency if the
employee is convicted of a crime involving an abuse of his or her office or position.
53243.3.On or after January 1, 2012, if a local agency provides, in the absence of a contractual
obligation, for any of the payments described in this article, then the employee or officer
receiving any payments provided for those purposes shall fully reimburse the local agency that
provided those payments in the event that the employee or officer is convicted of a crime
involving the abuse of his or her office or position.
53243.4. For purposes of this article, "abuse of office or position" means either of the following:
(a) An abuse of public authority, including, but not limited to, waste, fraud, and
violation of the law under color of authority.
(b) A crime against public justice, including, but not limited to, a crime described in
Title 5 (commencing with Section 67), Title 6 (commencing with Section 85), or Title 7
(commencing with Section 92) of Part 1 of the Penal Code.
City Manager Employment Agreement
Final Audit Report 2021-11-18
Created: 2021-11-17
By: Kirsten Squarcia (kirstens@cupertino.org)
Status: Signed
Transaction ID: CBJCHBCAABAAOT2QRkv5UGHmL5X6-9tKi44FUkbXB8bk
"City Manager Employment Agreement" History
Document created by Kirsten Squarcia (kirstens@cupertino.org)
2021-11-17 - 11:22:59 PM GMT- IP address: 64.165.34.3
L-4 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature
2021-11-17 - 11:25:46 PM GMT
Email viewed by Christopher D. Jensen (christopherj@cupertino.org)
2021-11-18 - 0:17:59 AM GMT- IP address: 104.47.45.254
C5a Document e-signed by Christopher D. Jensen (christopherj@cupertino.org)
Signature Date: 2021-11-18 - 0:18:21 AM GMT - Time Source: server- IP address: 136.24.42.212
Agreement completed.
2021-11-18 - 0:18:21 AM GMT
Adobe Sign