EMPLOYMENT AGREEMENT
BETWEEN CITY OF SUNNYVALE
AND
JOAN A. BORGER
INTERIM CITY ATTORNEY
THIS AGREEMENT is made and entered into effective the 15th day of October, 2004 by and between the City of Sunnyvale, herein referred to as "City," and Joan A. Borger, herein referred to as “Employee.”
WHEREAS, the City is a governmental agency organized and formed pursuant to City Charter and the laws of the State of California; and
WHEREAS, the City desires to recognize and compensate Employee for her temporary service as Interim City Attorney, under the terms of this Agreement; and
WHEREAS, based upon the professional qualifications and experience of Employee, the City Council has determined that she is well-qualified to serve as the Interim City Attorney; and
WHEREAS, Employee understands and agrees that she shall serve in the position of Interim City Attorney at the pleasure of the City Council and that the terms and conditions of this Agreement set forth the full and entire understanding of the parties with respect to Employee’s service as Interim City Attorney for the City;
NOW, THEREFORE, in consideration of the mutual promises herein contained, the City and Employee agree as follows:
I. TERM OF THE AGREEMENT
Employee acknowledges that this is a temporary appointment outside the classified service. Employee’s service under this Agreement shall commence on the effective date of this Agreement and shall continue until the City employs a new City Attorney or otherwise terminates this Agreement, unless Employee earlier resigns or retires from employment. Employee promises to give no less than thirty (30) days notice of the effective date of any such resignation or retirement. During the life of this Agreement, the City agrees not to fill the position of Senior Assistant City Attorney and further agrees to retain that position as a vacant position to which Employee may revert in accord with the provisions of this Agreement. Employee agrees that she serves in the position of Interim City Attorney at the pleasure of the City Council. The City Council, by majority vote in closed session, shall have the unfettered right to terminate this Agreement, without cause, at any time on thirty (30) calendar days written notice (or pay in lieu thereof). In the event of termination, Employee agrees and acknowledges that she shall have no right to appeal and shall have no claim for damages or benefits or for any other compensation. Upon termination without regard to cause, the City will pay Employee her salary under this Agreement for work already performed and Employee shall revert to her previous position of Senior Assistant City Attorney.
II. POST-AGREEMENT EMPLOYMENT
In the event this Agreement is terminated without material cause, Employee shall immediately revert to the position of Senior Assistant City Attorney, under the same terms and conditions in effect on October 15, 2004. For purposes of this Agreement, “material cause” is defined as abandonment of duties, theft, fraud or other serious misconduct constituting a felony under California law, regardless of criminal prosecution. In the event of termination for material cause, Employee shall have no right of reversion to other City employment.
III. APPOINTMENT
The City hereby appoints Employee to the position of Interim City Attorney in temporary service in that position at the pleasure of the City Council.
IV. SCOPE OF WORK
Employee shall manage the legal affairs of the City under the direction of the City Council. Employee shall have the full powers, duties and responsibilities of the Office of City Attorney as established in the City Charter, particularly sections 900 and 908, and the governing rules and regulations of the City. Employee shall devote herself on a full-time basis to these responsibilities and shall devote such time as may be reasonably necessary for satisfactory performance of Employee’s obligations under this Agreement. Employee shall maintain full-time presence at the City offices and shall undertake no other professional employment during the term of this Agreement.
V. INDEMNIFICATION
City shall defend and indemnify Employee for acts or omissions arising within the course and scope of her responsibilities under this Agreement, as provided in Government Code sections 825-825.6 and 995-995.6.
VI. CITY PROPERTY
Employee agrees that all files, notes, documents, data, specifications, correspondence, drawings, reports and other material prepared by or furnished to Employee in connection with her employment hereunder shall be and remain the exclusive property of the City.
VII. COMPENSATION
A. Salary
1. Base Salary
City shall pay Employee an annual salary of $156,520.00 (one hundred fifty-six thousand five hundred twenty dollars and no/cents), representing the Control Point for the D-2 level department director position in the City’s salary resolution in effect at the time of execution of this Agreement. Such salary will be paid in biweekly installments in accord with the City’s regular payroll practice, commencing on October 15, 2004. As an exempt employee, Employee shall not be eligible for overtime or compensatory time off, but shall be entitled to management administrative leave. Withholding from salary shall be as prescribed by law.
2. Performance Review
It is generally anticipated by the parties that the City Council will employ a new City Attorney within the next six to nine months. If Employee is still employed as Interim City Attorney in June 2005, the City shall conduct a performance review of Employee’s performance under this Agreement on or around June 30, 2005 and shall consider a salary adjustment in light of Employee’s performance and any salary adjustments provided to other City managers under the City’s “Pay for Performance Plan.” The effective date for any such salary adjustment shall be July 1, 2005, regardless of date of implementation.
B. Fringe Benefits
City shall provide Employee with the fringe benefits generally applicable to Category F under City Resolution No. 131-04, as may be amended from time-to-time, including payment of the D-2 level automobile allowance.
VIII. CONFLICT OF INTEREST
Employee warrants that she presently does not have and agrees that she will not acquire any direct or indirect financial interest that would conflict with her performance of this Agreement. Employee agrees to comply with all FPPC reporting obligations in connection with her employment under this Agreement.
IX. AMENDMENTS
This Agreement may be amended at any time only by the written agreement of the City Council and Employee.
X. VALIDITY
The invalidity in whole or in part, of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
XI. COMPLIANCE WITH LAWS
Employee agrees to comply with all applicable federal, state and City laws, rules, regulations or ordinances; and all provisions required thereby to be included therein, are hereby incorporated by reference.
XII. CAPTIONS AND SECTION HEADINGS
Captions and section headings used herein are for convenience only and are not a part of the Agreement and will not be used in construing the Agreement.
XIII. SOLE AGREEMENT
This Agreement contains the entire agreement of the parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Agreement shall be of no force or effect. Any amendment to this Agreement must be in a writing designated as such, signed by both parties.
CITY OF SUNNYVALE
By__________________________ ____________________________________
JOHN HOWE, Mayor JOAN A. BORGER
Interim City Attorney
APPROVED AS TO FORM:
By_________________________________