EMPLOYMENT AGREEMENT
CITY ATTORNEY
This AGREEMENT is entered into this _day of_ _ 2022, by and between the CITY OF FREMONT (CITY), a municipal corporation organized and existing under the laws of the State of California and RAFAEL E. ALVARADO, JR., an individual.
RECITALS
The City Council has carefully evaluated ALVARADO's knowledge, expertise, administrative skills and abilities and has decided to appoint ALVARADO to the position of City Attorney.
2. The parties have entered into this Agreement in recognition of the benefits accruing to each party. This Agreement will ensure the retention of ALVARADO's services as City Attorney and the performance of those duties in a manner which serves the best interests of the CITY, subject to the direction of the City Council. This Agreement also provides for an equitable manner of resolving issues regarding the termination of the employment relationship, should that occur.
NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions set forth below, the parties agree as follows:
TERMS
1. TERM: Except as otherwise expressly stated in the Agreement, the term of this Agreement shall be for a period of five (5) years commencing on February 22, 2022. This Agreement shall automatically be renewed on its anniversary date for an additional five (5) year period or for any other period agreed to between the parties. Should the CllY decide to terminate this Agreement at the end of the five (5) year term, such notice shall be given to ALVARADO no later than six (6) months prior to the expiration date of the Agreement.
Separation of employment at a time other than the expiration of this Agreement shall be governed by the provisions outlined in Section 6 of the Agreement, and the Fremont Municipal Code.
2. DUTIES AND AUTHORITY: ALVARADO agrees to serve as City Attorney of the CITY, performing the duties and responsibilities of City Attorney as set out in the Fremont Municipal Code, and in accordance with State and Federal laws. The CITY appoints ALVARADO to serve as City Attorney. ALVARADO will perform work on a full-time schedule, and shall devote his full time and attention to performing his responsibilities on behalf of the CITY.
1 SALARY: CITY agrees to pay ALVARADO an annual salary of Two Hundred Ninety- Five Thousand Dollars ($295,000) payable biweekly ($11,346.15) in accordance with standard City procedures. During the term of this Agreement, the CITY may provide ALVARADO with cost of living allowances (COLAs) in the discretion of the City Council. The City Council may also grant annual merit increases to ALVARADO following each evaluation of ALVARADO's performance as described in Section 8.
4. HEALTH, LEAVES, INSURANCE, DEFERRED COMPENSATION AND RELATED FRINGE BENEFITS:
A. HEALTH BENEFIT ALLOWANCE: ALVARADO shall be entitled to receive the same Health Benefit Allowance (HBA) as provided to other management employees with the CITY as outlined in the Memorandum of Understanding (MOU) between the CITY and the Fremont Association of Management Employees (FAME). For the duration of this Agreement, it is the intent of the City Council that ALVARADO receive the same HBA as provided to managers covered by the FAME MOU.
B. l LIFE INSURANCE: The CITY shall pay the premium cost for a group life insurance for ALVARADO equivalent to two times annual base salary, with the beneficiary to be designated by ALVARADO, under a program selected and administered by the CITY. The value of such insurance premium shall be subject to taxation as required by law and subject to any restriction that may be imposed by the carrier.
C. PARITY WITH FAME: Except as expressly stated herein, the CITY shall provide to ALVARADO the same benefits provided to the CITY's other management employees as set forth in the MOU between the CITY and FAME.
D. ACCRUABLE AND NON-ACCRUABLE LEAVE ACCOUNTS: For the
duration of this Agreement, it is the intent of the City Council that ALVARADO receive the same leave benefits as provided to managers covered by the FAME MOU. ALVARADO shall be entitled to receive the same general leave and management leave benefits as provided to other management employees with the CITY as outlined in the Memorandum of Understanding (MOU) between the CITY and the Fremont Association of Management Employees (FAME).
ALVARADO is entitled to accrue general leave at the same amount as provided to other managers covered by the FAME MOU. As is consistent with FAME MOU language, the City grants ALVARDO ten (10) years of service credit for the purposes of calculating leave accrual rates.
In the event ALVARADO's employment is terminated, either voluntarily or involuntarily, he shall be compensated for all unused accrued general leave at the rate of pay on the date of separation.
In addition, ALVARADO shall receive one hundred twenty-four (124) hours of non-accruable management leave as outlined in the FAME MOU. Such non-accruable management leave must be taken in the fiscal year in which it is credited to ALVARADO's account, and is not eligible to be "cashed out" at any time.
2 E. DEFERRED COMPENSATION: CITY will contribute in addition to the salary provided pursuant to paragraph 3, the largest increment permitted by law to an account in ALVARADO's name the maximum amount of deferred compensation allowed for that pay period by the Internal Revenue Code (IRC) until the total of all contributions for the calendar year reach the annual limit prescribed by the IRC (currently $20,500 annually). Said deferred compensation shall be invested, as directed by ALVARADO, in accordance with the CITY's deferred compensation program.
F. 401(a) MONEY PURCHASE PLAN: CITY will contribute in addition to the salary provided pursuant to paragraph 3, the same Internal Revenue Code (IRC) 401(a) Money Purchase Plan contribution as provided to other management employees with the CITY as outlined in the Memorandum of Understanding (MOU) between the CITY and the Fremont Association of Management Employees (FAME).
HEALTH EXAMINATION: It is in CITY'S best interest that ALVARADO maintain good health and the physical ability to fulfill his duties as City Attorney. Toward this end, CITY shall pay the full cost of one complete annual physical examination for ALVARADO, conducted by a physician of his choice. The cost to CITY shall be offset by any payment made by ALVARADO's health insurance carrier toward the cost of the examination.
H. RETIREMENT: It is the City of Fremont's understanding that ALVARADO plans to seek reciprocity and will be employed as a classic member, consistent with the City's CalPERS plan for miscellaneous employees (2% @ 60). ALVARADO understands and agrees that he is subject to any changes in State law beyond the CITY's control with respect to his CaPERS benefits. Additionally, the City agrees to grant ten (10) years of service credit (based on prior years of public service experience) for the purposes of calculating eligibility for retiree medical reimbursement program, as is consistent with and subject to the FAME MOU language.
5. GENERAL BUSINESS EXPENSES:
CITY agrees to budget for and to pay for professional dues and subscriptions of ALVARADO for continuation and full participation in national, regional, state and local associations, and organizations necessary and desirable for ALVARADO's continued professional participation, growth, and advancement, and for the good of the CITY.
B. CITY agrees to budget for and to pay for travel and subsistence expenses of ALVARADO for professional and official travel, meetings, and occasions to adequately continue the professional development of ALVARADO and to pursue necessary official functions for the CITY, including but not limited to the League of California Cities, and such other national, regional, state, and local governmental groups and committees in which ALVARADO serves as a member.
3 6. SEPARATION OF EMPLOYMENT
A. ALVARADO may voluntarily separate from CITY service by delivering a letter of resignation to the City Council not less than thirty (30) days prior to the effective date of the resignation. This Agreement to provide a thirty (30) day notice of resignation is an additional consideration for various benefits provided herein to ALVARADO.
B. The City Council may involuntarily remove (terminate) ALVARADO as City Attorney by either: (1) requesting his involuntary resignation, or (2) voting to remove ALVARADO as City Attorney by a vote of at least four members of the City Council; provided, that the vote of five members of the City Council shall be required to remove the City Attorney within 60 days after his appointment or within the 60 days after any election at which one or more members are elected to the City Council.. ALVARADO agrees that he is an at-will employee who serves at the pleasure of the City Council, and that no cause for his termination need exist or be stated except if the termination is for willful misconduct in office. In the event the termination is for willful misconduct in office, the CITY shall provide ALVARADO with a written statement describing the willful misconduct and shall offer ALVARADO a name-clearing hearing before the City Council. Except as provided in this Agreement and otherwise by law, ALVARADO is exempt from any pre-termination due process rights (such as "Skelly" rights) or dispute resolution or grievance rights which may exist under the CITY's Personnel Rules. In the event of ALVARADO's involuntary resignation or termination by the City Council (except for willful misconduct in office), ALVARADO shall be entitled to receive severance as described in Section 7 below.
7. SEVERANCE:
A. In the event ALVARADO involuntarily resigns or is terminated by the City Council for any reason other than "willful misconduct" he shall be entitled to six (6) months of severance pay, but subject to the limitations and caps set forth in California Government Code Sections 53260 and 53261; provided, however, ALVARADO shall execute a general release covering the CITY (including without limitation all past and present elected officials, employees, attorneys and assigns) in exchange for the severance pay. For the purpose of this Agreement, "severance" shall not include any noncash items except that ALVARADO will be entitled to continued health benefit payments, as if he remained an employee, which may be continued for the same duration of time as the period of severance, or until ALVARADO finds other employment, whichever occurs first. Said severance pay shall be paid in a lump sum payment to ALVARADO by the CITY within fifteen (15) working days after the effective date of ALVARADO's involuntary resignation or termination, or may be paid in other increments as described in Section 7.B. In addition, ALVARADO may elect to have the City contribution toward health insurance payments continued at the FAME benefit level for the period of severance.
4 Upon agreement by both parties, and in lieu of severance pay described in Section 7.A, the City Council may give ALVARADO at least six (6) months' advance notice of its intent to terminate ALVARADO's services as City Attorney, and the CITY shall then retain ALVARADO on its payroll in an employment relationship with the CITY in a capacity to be mutually agreed upon for the entire period of six (6) months.
C. ALVARADO acknowledges that any payouts made pursuant to this Agreement are subject to the reimbursement and forfeiture provisions of the California Government Code. (See, e.g., Cal. Gov. Code §§ 53243 - 53244.)
8. PERFORMANCE EVALUATION:
At the beginning of each performance period, the CITY will provide to ALVARADO the criteria upon which he will be evaluated. The City Council and ALVARADO shall meet on an annual basis to evaluate ALVARADO's performance. After such meeting, if needed, ALVARADO shall have at least 15 days to provide a written response to any items discussed at the meeting. The City Council shall provide ALVARADO with written performance evaluations in such format as the City Council may determine within 30 days of the annual performance meeting and will take into consideration any written responses from
ALVARADO
B. If the City Council concludes ALVARADO's job performance warrants a salary increase for merit, the Council may grant a merit adjustment in an amount determined by the Council, to be effective on a date determined by the Council. Such merit adjustments may be granted on one or more occasions during the term of this Agreement.
9. OUTSIDE ACTIVITIES
The employment provided for by this Agreement shall be ALVARADO'S sole employment. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to the CITY and the community, ALVARADO may elect to accept limited teaching, consulting or other business opportunities with the understanding that such arrangements shall not constitute interference with nor a conflict of interest with his responsibilities under this Agreement.
10. INDEMNIFICATION: CITY shall defend, save harmless, and indemnify ALVARADO against any tort, professional liability claim, or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the course and scope of ALVARADO's duties as City Attorney, and subject to the limitations of California Government Code Section 995, et seq. If the CITY compromises or settles any such claim or suit, it will pay the amount of any settlement on ALVARADO's behalf. It is expressly understood that the CITY is not responsible for any awards involving punitive damages, subject to the City Council's discretion pursuant to Section 825(b) of the California Government Code. 5 11. GENERAL PROVISIONS:
A. Integration. This Agreement sets forth and establishes the entire understanding between the CITY and ALVARADO relating to the employment of ALVARADO by the CITY.
Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement.
B. Binding Effect. This Agreement shall be binding on the CITY and ALVARADO as well as their heirs, assigns, executors, personal representative and successors in interest.
C. Effective Date. This Agreement shall become effective on 2022.
D. Severability. The invalidity or partial invalidity of any portion of this Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they have been executed by both parties subsequent to the expungement or judicial modification of the invalid provision.
E. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be an original. The parties agree that the digital signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Any digital signature shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record keeping system to the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written at the beginning of this Agreement.
Real
Lily Mei
Mayor City Attorney
ATTEST: APPROVED AS TO FORM:
Susan Gauthier Debra Margolis
City Clerk Interim City Attorney
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