1 EM
PLOYMENT AGREEMENT
BETWEEN
CITY OF SUNNYVALE AND TIM KIRBY
(INTERIM CITY MANAGER)
T
HIS AGREEMENT is between the City of Sunnyvale, a municipal corporation and chartered city ("City") and Tim Kirby ("Employee”). It is effective on the latest date next to the signatures on the last page.
T
he Parties enter into this Agreement based on the following facts:
A. E
mployee is currently a Director of Finance for the City.
B. T
he City Council wishes to employ Employee as Interim City Manager, subject to the terms and conditions set forth in this Agreement, the Sunnyvale Municipal Code and the Charter of the City of Sunnyvale (the "Charter").
C. E
mployee desires to be employed by the City as its Interim City Manager, subject to the terms and conditions in this Agreement, the Sunnyvale Municipal Code, the Charter, and all other applicable laws, resolutions, and policies.
D. T
he City and Employee wish to establish specific terms and conditions relating to compensation, benefits, and other matters related to Employee’s appointment as Interim City Manager.
B
ASED UPON THE FOREGOING, THE CITY AND EMPLOYEE AGREE AS FOLLOWS:
1. E
mployment. The City appoints Employee as its Interim City Manager for a term to begin on June 29, 2024. Except as otherwise provided in this Agreement, Employee’s employment with the City shall be governed by the City Council-adopted Salary Resolution, as it currently exists and may be changed from time to time.
2. Duti
es of the Interim City Manager. Employee will perform the duties established for the City Manager by section 802 of the Sunnyvale City Charter, section 2.04.015 of the Sunnyvale Municipal Code, by direction given by the City Council, and as otherwise provided by law, ordinance, or regulation. Employee agrees to comply with all federal, state and local laws, ordinances, rules and regulations applicable to or associated with these duties.
2. 1. Full Energy and Skill. Employee will devote their full energy, skill, ability, and productive time to the performance of the duties.
2. 2. No Conflict. Employee will not engage in any employment, activity, consulting service, or other enterprise, for compensation or otherwise, which is actually or potentially in conflict with or which interferes with the performance of the duties.
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2 Employee acknowledges that he is subject to the various conflict of interest requirements found in the California Government Code and state and local policies and regulations.
2.3 Permission Required for Outside Activities. Employee shall devote their best efforts to the performance of the duties and shall not be employed in any other capacity while employed as Interim City Manager, without the express prior written consent of the City Council.
3. Salary. While performing the duties of Interim City Manager, Employee will receive a base salary within the range provided in the City Council-approved Salary Resolution, as it currently exists and may be changed from time to time. Employee will receive an initial gross base annual salary of three hundred eighty three thousand, two hundred fifty nine ($383,259.00), beginning on June 30, 2024. This amount is subject to authorized or required deductions and withholding, prorated and paid on City's regular paydays. Employee is an exempt employee under applicable wage and hour law and his base salary shall be compensation for all hours worked. The City agrees that the amount of Employee's base annual salary will not decrease, except as part of a permanent decrease that is consistent with the Fair Labor Standards Act.
4. Benefits and Allowances. Employee will be eligible for, and shall continue to receive, all regular benefits that they received as Director of Finance (i.e., health insurance, PERS contributions to the extent paid by the City, etc.) and Personal Time Off (PTO) leave, and management leave, as are generally provided to employees in unrepresented Unclassified Department Director positions who report directly to the City Manager (Pay Plan Category F) under the City Council-approved Salary Resolution, as it currently exists and may be changed from time to time.
4.1. Job Related Expenses. City agrees to reimburse Employee for reasonable job-related required or professional development expenses incurred in carrying out the duties as interim City Manager.
5. Additional Expenses of Employment. The City shall pay the cost of any fidelity or other bonds required by law for the Interim City Manager.
6. Duration of Employment, Termination; Reinstatement to Former Director of Finance Position. Employee understands and agrees that he has no constitutionally protected property or other interest in employment as Interim City Manager. Employee waives any and all rights, if any, under the City’s rules and regulations, including without limitation, the right to pre-or post- disciplinary due process. Employee understands and agrees that he works at the will and pleasure of the City Council and that he may be terminated or asked to resign the position of Interim City Manager at any time, with or without cause.
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3 6.1. Reinstatement to Director of Finance Position. Except as otherwise provided in this agreement, when the City Council terminates Employee’s appointment as Interim City Manager, Employee shall have the right to be reinstated to the position of Director of Finance. In addition, Employee may, upon giving the City 30 days’ advance written notice, resign their position as Interim City Manager and return to the position of and be reinstated as Director of Finance. Upon reinstatement as Director of Finance, he shall enjoy those benefits set forth in and be subject to the terms and conditions of the Salary Resolution for Pay Plan Category F employees.
6.1.1. If Employee returns to the position of and is reinstated as Director of Finance for any reason, Employee’s salary and benefits shall be adjusted to match that which would have been in effect at the time he is reinstated had he not entered into this Agreement and had, during the term of this Agreement, retained and performed the duties of the position as Director of Finance. Any benefits or rights that he enjoyed as the Interim City Manager by this agreement shall terminate when he resumes the Director of Finance position.
6.1.2. During the term of this Agreement, Employee’s Director of Finance position shall be considered a temporary position. If Employee determines that the Director of Finance position should be filled in their absence, the position may be filled as a term- limited position for a term lasting no longer than the term of Employee’s Appointment as Interim City Manager, and shall be terminable at will.
6.2. Termination and Severance. Notwithstanding anything contrary in this agreement, if Employee is terminated as the Interim City Manager for serious misconduct involving abuse of the office or position, including but not limited to waste, fraud, violation of the law under color of authority, misappropriation of public resources, violence, harassment or discrimination, he shall not be entitled to be reinstated as the Director of Finance , and shall not be entitled to any severance pay under the Salary Resolution provisions for Pay Plan Category F Employees. Further, if Employee receives any cash settlement from the City related to termination of this agreement or Employee’s employment with City, Employee shall fully reimburse the City the amount of that settlement if the Employee is convicted of a crime involving an abuse of the office of Interim City Manager as set forth in Government Code section 53243.3 within thirty (30) days after the conviction becomes final and is no longer subject to any appeal.
7. Indemnification. The City shall defend, hold harmless, and indemnify Employee against any tort, professional liability claim, or demand, or civil rights or other legal action, arising out of any act, event or omission occurring in the performance of Employee's professional duties as Interim City Manager, except to the extent that Employee's actions are the result of gross negligence or willful misconduct. The City will defend, compromise or settle any such claim or suit, as appropriate, and pay the amount of any settlement or judgment rendered thereon. This indemnification shall apply regardless of whether receipt of notice or filing of any claim or Attachment 1
4 lawsuit occurs during or following Employee's employment with the City. The extent of defense or indemnification may be limited by the provisions of California State law.
8. Miscellaneous.
8.1. Notices. Notices given under this Agreement shall be in writing and shall be either: (a) served personally; or (b) sent by email (to and from city email addresses and provided a hard copy is also mailed within one (1) business day); or (c) delivered by first- class United States mail, certified, with postage prepaid and a return receipt requested; or (d) sent by Federal Express, or some equivalent private mail delivery service. Notices shall be deemed received at the earlier of actual receipt or three (3) days following deposit in the United States mail, postage prepaid. Notices shall be directed to the addresses shown below, provided that a party may change such party's address for notice by giving written notice to the other party in accordance with this subsection.
CITY: Attn: Mayor
456 West Olive Ave, Sunnyvale, CA 94086
EMPLOYEE: Tim Kirby
456 West Olive Ave, Sunnyvale, CA 94086
8.2. Entire Agreement/ Amendment. This Agreement constitutes the entire understanding and agreement between the parties as to those matters contained in it, and supersedes any and all prior or contemporaneous agreements, representations and understandings of the parties. This Agreement may be amended at any time by mutual agreement of the parties, but any such amendment must be in writing, dated, and signed by the parties and attached hereto.
8.3. Applicable Law and Venue. This Agreement shall be interpreted according to the laws of the State of California. Venue of any action regarding this Agreement shall be in the proper court in Santa Clara County.
8.4. Severability. If any portion of this Agreement is declared void, such portion shall be severed from this Agreement and the remaining provisions shall remain in effect, unless the result of such severance would be to substantially alter this Agreement or the obligations of the parties, in which case this Agreement shall be immediately terminated.
8.5. Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this Agreement shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by the parties.
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5 8.6. Representation by Counsel. Employee and the City acknowledge that they each did, or had the opportunity to, consult with legal counsel of their respective choices with respect to the matters that are the subject of this Agreement prior to executing it.
8.7. Section Headings. The headings on each of the sections and subsections of this Agreement are for the convenience of the parties only and do not limit or expand the contents of any such section or subsection.
EMPLOYEE
___________________________
Tim Kirby
Date: _____________
CITY OF SUNNYVALE
___________________________
Mayor
Date: _____________
APPROVED AS TO FORM:
___________________________
Sr. Assistant City Attorney
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