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EMPLOYMENT AGREEMENT
BETWEEN CITY OF SUNNYVALE AND TIM KIRBY
(CITY MANAGER)
THIS 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.
The Parties enter into this Agreement based on the following facts:
A. The City Council wishes to employ Employee as 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").
B. Employee desires to be employed by the City as its 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.
C. The City and Employee wish to establish specific terms and conditions relating to compensation, benefits, and other matters related to Employee’s appointment as City Manager.
BASED UPON THE FOREGOING, THE CITY AND EMPLOYEE AGREE AS FOLLOWS:
1. At-Will Employment. The City appoints Employee as its City Manager for an indefinite term to begin on September 1, 2024. Employee understands and agrees that they work at the will and pleasure of the City Council and may be terminated or asked to resign the position of City Manager at any time, with or without cause. Except as otherwise provided in this Agreement, the terms and benefits of 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. Duties of the 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 actually or potentially conflicts with or which interferes with the performance of the duties.
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Employee acknowledges that they are 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 City Manager, without the express prior written consent of the City Council.
3. Salary. While performing the duties of City Manager, Employee shall be compensated as provided in this Section 3.
3.1 Base Salary. 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 ninety-eight thousand ($398,000.00), beginning the pay period including September 1, 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.
3.2 Performance Evaluation. Not less than once every 6 months, the City Council shall meet with Employee for the express purpose of evaluating his performance. One of the biannual evaluations shall be a formal annual performance evaluation.
3.3. Salary Adjustments. Employee shall receive an annual salary increase of three percent (3.0%), beginning with the pay period including September 1, 2025, until reaching the maximum of the City Manager salary range as approved and may be amended by the City Council from time to time. Notwithstanding the preceding, the City Council may, by a majority vote, approve modifications to the Employee’s annual salary increases.
3.4. Benefits and Allowances. Except as provided in section 3.5, Employee will continue to receive (based on total years of service to Sunnyvale) all regular benefits such as health insurance, classic Tier 1 PERS formula and contributions, Paid Time Off Accrual, and management retiree medical reimbursement, as are generally provided to Category F employees (Unclassified Department Director positions) under the City Council-approved Salary Resolution, as it currently exists and may be changed from time to time.
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3.5 Additional Benefits and Allowances. In addition to the benefits specified in section 3.4, Employee will receive the following additional benefits and allowances beginning with the pay period including September 1, 2024:
3.5.1 Job Related Expenses. City agrees to reimburse Employee for reasonable job-related required or professional development expenses incurred in carrying out the duties as City Manager.
3.5.2 Additional Retirement Contributions. The City will contribute annually to Employee’s Section 457(b) plan the maximum amount established by the Internal Revenue Service for the annual elective deferral limit and catch-up employee contributions (e.g., in 2024, $23,000 elective deferral limit and $7,500 catch-up contribution). In the 2024 calendar year, City will contribute the difference between $30,500 and the amount Employee contributed prior to assuming the position of City Manager.
In addition, the City will establish and contribute annually to Employee’s Section 401(a) defined contribution plan the amount established by the Internal Revenue Service for the annual elective deferral limit for 401(k) plan employee contributions (e.g., $23,000 for 2024).
3.5.3 Mortgage Assistance. The City Council shall provide Mortgage Assistance to Employee as provided and subject to the terms in Council Resolution No. 712- 15, as amended. Employee’s eligibility for participation in the City’s Mortgage Assistance Program is conditioned on Employee’s application to participate in the Mortgage Assistance program and the purchase of a residence within the City of Sunnyvale within two years of commencing employment as City Manager on September 1, 2024 (as documented by a purchase and sale agreement and the opening of escrow for the purchase of the property), and the actual and continued residence of Employee in the property within the City of Sunnyvale purchased with City Mortgage Assistance.
3.5.4 Paid Time Off Cashout. In addition to any PTO cashout for which Employee is otherwise eligible, the City shall cash out five hundred (500) additional hours from Employee’s existing PTO balance in the pay period including September 1, 2024, or as soon thereafter as practicable to implement such cashout.
4. Additional Expenses of Employment. The City shall pay the cost of the following additional expenses of employment:
4.1. The cost of any fidelity or other bonds required by law for the City Manager.
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4.2. The cost to defend and indemnify Employee for acts, events or omissions occurring in the performance of Employee’s professional duties as City Manager consistent with the provisions of state law, including the California Tort Claims Act (Government Code section 810 et seq.).
5. Duration of Employment, Termination. Employee understands and agrees that he has no constitutionally protected property or other interest in employment as 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.
5.1. Resignation. Employee may voluntarily resign the position of City Manager or retire from public service at any time with a minimum of two and one-half months (75 days) notice to the City Council, unless the parties mutually agree to a different notice period. No severance will be paid to Employee if Employee voluntarily resigns or retires without official, affirmative request or action of the City Council.
5.2. Involuntary Termination and Severance. Nothing in this Agreement is intended to, nor shall it, prevent, limit or otherwise interfere with the right of Employer, in Employer’s discretion, to terminate the services of Employee at any time in accordance with said laws and the provisions of this Agreement. City may not terminate Employee during the 120-day period following a general or special election for City Council or following the appointment of a new Council, except for willful misconduct. There is no express or implied promise made to the Employee for any form of continued employment. The Employee shall have no right to a termination hearing. The City and the Employee acknowledge that an excellent City-City Manager relationship is in the best interest of the City, and accordingly agree to use their best efforts to foster City- City Manager communications. This Agreement is the sole and exclusive basis for an employment relationship between Employee and the City Council.
5.2.1. Severance. If Employee is terminated by the City Council while still able to perform the duties of the City Manager, he shall receive a single lump-sum cash payment (without interest) on the effective day of termination equivalent to the sum of his then-current monthly base salary multiplied by eight (8) and the cash value, as reasonably determined by City, of his monthly medical benefits multiplied by eight (8). Contemporaneously with the delivery of the severance pay described in this section, Employee agrees to execute and deliver to City a standard release of all claims against the City, except claims prohibited from such a release under federal or state law. All normal withholdings as required by law shall be made with respect to any amounts paid under this section.
5.2.2. Nonpayment of Severance. Notwithstanding anything contrary in this agreement, if Employee is terminated as the City Manager as the result of conviction or a plea of nolo contendre to a crime, or for serious misconduct involving abuse of his office or position, including but not limited to waste, fraud, Attachment 1
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violation of the law under color of authority, misappropriation of public resources, violence, harassment or discrimination, he shall not be entitled to any severance pay. 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 he is convicted of a crime involving an abuse of the office of 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.
6. Indemnification. Except as otherwise provided by law, and provided that Employee complies with the provisions of Sections 825 and 825.6 of the California Government Code, as now existing or hereafter amended, City shall defend and hold harmless Employee 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 performance of Employee’s duties in accordance with the provisions of Sections 825 and 825.6, as now existing or hereafter amended. City may conduct such defense reserving the rights of City not to pay the judgment, compromise or settlement until it is established that the injury arose out of an act or omission occurring within the scope of Employee’s employment as an employee of City. City is required to pay the judgment, compromise, or settlement only if it is established that the injury arose out of an act or omission occurring in the scope of Employee’s employment as an employee of City. Nothing in this Agreement authorizes or obligates City to pay that part of any claim or judgment that is for punitive or exemplary damages. City may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered therefrom only to the extent authorized in Sections 825 through 825.6, as now existing or hereafter amended. If Employee is convicted of a crime involving an abuse of his office or position, as defined in Government Code Section 53243.4, then Employee shall fully reimburse the City for (1) any paid administrative leave salary paid by the City to Employee pending any investigation concerning said crime, (2) funds provided to the Employee for his legal criminal defense, and/or (3) any severance pay or cash settlement paid to the Employee related to his termination by the City. Said reimbursements arc required if such payments are made, even if the payments were made by the City in the absence for any contractual requirement to do so.
7. Miscellaneous.
7.1. 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
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456 West Olive Ave, Sunnyvale, CA 94086
EMPLOYEE: Tim Kirby
456 West Olive Ave, Sunnyvale, CA 94086
7.2. 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.
7.3. 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.
7.4. 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.
7.5. 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.
7.6. 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.
7.7. 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: _____________
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APPROVED AS TO FORM:
___________________________
City Attorney
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