EMPLOYMENT AGREEMENT
ThisAgreement("Agreement")is made betweenYibin Shen ("Shen"),an individual,and the CITY OFALAMEDA,CALIFORNIA(the"City"),a Californiachartercityand municipal corporation.
RECITALS
WHEREAS,the Citydesires to employ the professional services of Shen as CityAttorney of Alameda; and,
WHEREAS, Shen agrees to serve as the City Attorney of Alameda in accordance with the City Charter of Alameda; and,
WHEREAS, both the City and Shen wish to set forth in writing the terms and conditions of Shen's employment as City Attorney for Alameda.
NOW, THEREFORE, in consideration of the mutual covenants set forth below, the City and Shen agree as follows:
AGREEMENT
INTRODUCTION AND TERM
1. EMPLOYMENT
The City shall employ Shen in accordancewith the terms and conditionsset forth below, and Shen accepts theofferofsuch employment.During the term ofthis Agreement,the Citywill pay Shen thecompensationprovidedfor in thisAgreement.
2. TERM
This Agreementshall commenceon May 13, 2019 and continueindefinitely,subjectto termination as set forth in Sections 16,17 and 18 below.
DUTIES AND PROFESSIONAL RESPONSIBILITIES
3. DUTIES
Shen shall serveas the CityAttorneyforthe CityofAlamedaand shall be vestedwith the authoritygrantedto the City Attorneyin the Alameda City Charter. Shen shall perform such dutiesas arenecessaryfor him toexercisetheauthorityvestedin theCityAttorney under the Alameda City Charter. Also, Shen shall perform such duties and undertake such activitiesas may be assignedfrom time to time bythe City Council,and which are 1 Exhibit 1
consistentwith the positionof City Attorney.
4. HOURS OF WORK
Shen shall be an exempt employee under Fair Labor StandardsAct (FLSA). Shen is expected to devote necessary time outside normal office hours to the business of the City. Shen's schedule of work each day and week may vary in response to the requirementsof thework to be performed.Shen is expected to be present andavailable during regularCity business hours and in the case of emergenciesand spend sufficient hours at Alameda City Hall or other Cityfacilitiesto perform his duties.
5. OUTSIDE AND OTHER PROFESSIONAL ACTIVITIES
Shen shall devote his professional time and attention to the City's business during the term of this Agreement. The City acknowledges a mutual interest with Shen in having Shen, on occasion, undertake limited outside activities, including serving as an officer or a board member of municipal government organizations, or other related activities, provided that such activities do not distract Shen from the performance of his duties as City Attorney for Alameda.
When consistent with the City's travel policy, the City shall pay for reasonable travel expenses incurred by Shen for official travel associated with the pursuit of Alameda's interests including, but not limited to, such other national, regional, state and local government groups or committees upon which Shen may serve as a member or attend on behalf of the City such as the League of California Cities.
Subject to priorapproval of the City Council,Shen may accept limitedteaching or other business opportunitiesprovided that such opportunitiesdo not materiallyinterferewith Shen's duties under thisAgreement,create a financialor otherconflictof interest and are not incompatible with Shen's duties as City Attorney.
Additionally,Shenmay providelegal representation,withoutreceivinganycompensation, to himselfor hisfamily membersprovidedthat such representationdoes not materially interferewith Shen's duties under this Agreement,create a financialor other conflictof interestand is not incompatiblewith Shen's dutiesas City Attorney.Shen will notify the City Councilin writing requestingapprovalpriorto providinglegal representation.
COMPENSATION TO SHEN
6. SALARY
Shen shall receivean annual base compensationof $247,000beginningMay 13, 2019.
Salaryis to bepaid bi-weekly. The City Councilshall not decreaseShen'scompensation unless and except in the case of an across the board salary or other compensation decrease (includingfurloughs) applicableto all employeescovered by the Executive ManagementCompensationPlan. Salaryis to be paid at the same intervalsand in the same manneras other City DepartmentHeads. Beginningthe first pay periodfollowing 2 May 13, 2020 and annuallythereafter,Shen shall receivethesame percentageofsalary or wage increase, if any, that has been cumulativelyprovided to employees in the ExecutiveManagementCompensationPlan within the 12 months prior to May 13th of each year.
7. DEFERRED COMPENSATION (MONEY PURCHASE PENSION PLAN)
Shen is eligibleto participateinand receive benefits from the deferred compensation plan (voluntarycontributionsto a money purchase pension plan) to the same extent as other employees in the Executive Management Compensation Plan. Shen must participate in the deferred compensation plan in order to make or receive (if any) the annual deferred compensation plan contributions described in the Executive Management Compensation Plan and any contributions made by Shen to such plan are voluntary and at Shen's sole discretion.
Additionally,beginning May 13, 2019, the City shall provide to Shen $6,000 annually (i.e. from May 13 of each year to May 12 of the following year) in a deferred compensation/supplemental retirement plan, which plan shall be as mutually agreed by the City and Shen.
EVALUATIONS
8. EVALUATIONS
During the first year of Shen's employment, and after completion of approximately six months, Shen and the City Council shall jointlyestablish objective, verifiable measures of his performance to be completed during the first year and the City Council shall provide Shen with a six month's performance evaluation and thereafter an annual performance evaluation. For each subsequent year during the term of this Agreement, the parties shall endeavor to establish prospective objective, verifiable measures of performance for the ensuing year. Shen shall not have any right to a compensation increase due to a particular rating on a performance evaluation in addition to the salary adjustment discussed in section 6; rather, any decision to increase salary, provide a lump sum payment based on performanceor enhance any other element of compensation during the term of this Agreement, or thetiming of any such increase or enhancement, shall be in the discretion of the City Council.
RETIREMENT, HEALTH AND OTHER BENEFITS
9. RETIREMENT
Shen will be covered by the City's "miscellaneous"2% at 55 PERS plan during his employment. Shen will pay both the 7.0% employee contributionfor this benefit and an additional1.868%ofthe employee'sPERSableearnings towardthe employerretirement contribution. This 8.868% contribution by Shen shall be in accordance with Section 414(h)(2)of the InternalRevenue Code under which employee contributionsshall be tax deferred and not subject totaxationuntil the time ofconstructivereceipt.
10. VACATION
Shen shall accrue 25 days (200 hours) of paid vacation annually. Vacation shall be accruedbi-weekly.Shen maycarryoveraccruedbutunusedvacationtime from one year to the next; provided, however, he may not accrue a vacation balance higherthan 50 days (400 hours). Upon separation from the City, Shen, or in thecase of his death Shen's heirs, shall be paid for all unused and accrued vacation time. Accumulated vacation balances shall be paid at Shen's base salary rate at the effective date of his separation from employment with the City.
Notwithstanding the prior paragraph, for the first seven pay periods of Shen's employment, Shen will not accrue paid vacation but, instead, effective May 13, 2019, the City shall provide him with 53.8461 hours of paid vacation. After the first seven pay period as provided in the prior paragraph, Shen will accrue paid vacation as provided in the prior paragraph.
11. OTHER LEAVES
Except as provided in Section 10 above and in the following sentence, Shen shall receive the same paid holidays, floating holidays, funeral leave and sick leave benefits as provided in the Executive Management Compensation Plan. Floating holidays for calendar year 2019 will accrue effective May 13, 2019. Notwithstanding the amount of administrative leave that is provided on an annual basis to other City Department Heads under the Executive Management Compensation Plan, Shen shall receive 8 days of administrative leave annually, and for calendar year 2019 the 8 days of administrative leave shall accrue effective May 13, 2019. Upon separation from the City, Shen, or inthe case of his death Shen's heirs, shall be paid for all unused and accrued administrative leave at Shen's base salary rate at the effective date of his separation from employment with the City.
Additionally,upon Shen being summoned tojury duty, Shen shall informthe Counciland, if requiredto serve, may be absent from duty with full pay for that timerequiredto serve.
12. OTHER FRINGE BENEFITS
Shen shall be providedmedicalcoverage, disabilitybenefits, flexiblespending accounts, life insurance, retireehealth care benefit, vacation sell back, and dental coverage at the same levels and under the same conditions that are provided to other non-safety City Department Heads.
13. TRANSPORTATION ALLOWANCE
Shen shall receive $500 each month as a transportationallowance inexchange for Shen making his personal automobile available for City related business or using public transportationin lieu of using his automobile. Shen will also be entitled to mileage reimbursement at standard rates for trips of over 100 miles taken on City business when such business trips are consistent with City travel policy.
14. MEMBERSHIP DUES
Unless provided otherwise in the City's adopted budget and subject to review and approval by the Mayor, the City shall pay up to a cap of $2,500 for Shen's State Bar Dues as well as other professional dues necessary to ensure Shen's participation in such programs that enhance both Shen's standing and the City's reputation, including national, regional, state and local associations and organizations.
15. MOVING AND RELOCATION EXPENSES
The first week in June of 2019, the City shall pay Shen $16,000 for expenses associated with moving and relocating Shen from his current residence to the Bay Area, which expenses include packing, moving, storage costs, unpacking and insurance charges.
Additionally, the City shall reimburse Shen for mileage costs for moving two personal automobiles from his current residence to Alameda at the current IRS allowable rate of $0.58 per mile.
SEPARATION FROM EMPLOYMENT
16. RESIGNATION/RETIREMENT
Shen shall give the City at least forty five (45) days written notice of the effective date of Shen's resignation or retirement.
17. TERMINATION OF AGREEMENT
The purpose of this Section 17 is to allow the parties to terminate this Agreementas expeditiouslyand smoothlyas possibleso that in exchange for the City's providingthe severance described in this Section, Shen will release the City from any claims against the City.
The City, througha majorityvoteof its City Counciland in eitherclosed or open session, may terminate this Agreement, at its sole and absolute discretion, with or without cause.
The City Councilmay request Shen'sresignationand, if Shen so agrees, the resignation shall be considered a termination of employment without cause. The term "cause" is defined, for the purposes of this Agreement, as set forth in Section 18 below.
If the City terminates this Agreement without cause, Shen shall be paid a severance payment equal only to his then current full salary (Section 6), deferred compensation (Section7), and medicaland dental coverage for aperiod of six (6) monthsfrom Shen's receipt of written notice of termination or his agreement to resign as set forth in the previous paragraph. The severance payment shall be paid within 30 days of the City's termination without cause. Inexchange for the payment of severance, Shen shall release the City from all claims against theCity, its officials,employees and agents, and, as part of the consideration for Shen's receiving the severance, Shen shall cooperate with and provide assistance to the City in the transition of his duties to an acting, interim or new City Attorney, the terms of such transition to be mutually agreed upon at the time of the transition.
If the City terminates this Agreement with cause, the City shall have no obligation to continue the employment of Shen or to pay any salary, deferred compensation or medical and dental coverage as provided in the preceding paragraph.
18. CAUSE
For purposes of this Agreement, "cause" shall mean: (1) indictment, conviction or plea of nolo contendere to any felony or other crime involving moral turpitude; (2) material breach of City policy or this Agreement, which breach Shen has not cured, to the extend curable, to the satisfaction of the City Council within sixty (60) days after receiving notice of such breach; (3) fraud, embezzlement, misappropriation of funds or disclosure of confidential information; (4) misconduct or gross negligence that results, or reasonably could be expected to result, in financial damage to the City; (5) failure to cooperate with an official investigation authorized by the City Council or the City Attorney's Office, or initiated by a governmental authority, in either case related to the City, its business, Council members or City employees; or (6) acceptance of employment from another source which is inconsistent with full time employment as Alameda's City Attorney.
MISCELLANEOUS PROVISIONS
19. REIMBURSEMENT
Shen is entitled to reimbursement for all sums necessarily and reasonably incurred and paid by him in the performanceof his duties. Shen shall submita claim form to the City for anysuch claimsin the sameform and manneras is requiredby the City'spolicyor by custom and practice among other employees in the City's Executive Management Compensation Plan.
Additionally,the City shall reimburseShen,consistentwith the City'stravel policy,for the cost oftransportationand lodgingfor Shen and his spousefor travel and lodgingfor one visit to the City to find housing.
20. BONDS
The City shall pay thefull costofany bonds,fidelityorotherwise,requiredofShen under any applicablestate orlocal law or ordinancerelativeto his performanceof his dutiesas City Attorney.
21 iKinFMNIFICATION
the defenseofsuch claims,demandsor legal actions.
22 SEVERABILITY
^ementKL to be illegal or void by acourt of competentjurisdiction,thepartiesshall meetand conferto re-negotiatesuch illegalor void term(s).
23. PARITYIN CONSTRUINGAGREEMENT
Both the City and Shen have had the opportunityto participatein the drafting of this Agreement.Consequently,terms,conditions,or provisionsofthis Agreementshall not be construedagainstone partyand in favor ofthe otherbaseduponwho actuallydraftedthe Agreement.
24. INTEGRATION CLAUSE
The City and Shen acknowledge that this Agreement constitutes the sole and entire agreement of the parties in this matter and that any modifications may be made only in a writing signed by both the City and Shen. The City and Shen agree that there are no representations, agreements, arrangements or understandings, whether written or oral, betweenthe partiesrelatingto the subjectmatterof this Agreementwhich are not fully set forth in this Agreement.
25. NOTICES
Notice pursuantto this Agreementshall be in writing given by (a) personaldelivervwithacknowledgementof receipt; or (b) by deposit in custodyof the UnTed\StiZ;Po™alService,postageprepaid,and addressedasfollows:
To the City: Mayorand City Council
City of Alameda
City Hall
2263 SantaClara AvenueAlameda,CA 94501
To Shen: Yibin Shen
(addressto be providedfollowingrelocation)
Signatureson followingpage
CITY OF ALAMEDA
Marilwn/Ezzy/
Mayor
Attest:
: /l^-T^LBy
Lara Weisiger
City Clerk *
Approved as to form:
Michael H. Roush
Interim City Attorney
By
YIBIN SHEN
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