CITY COUNCIL AGENDA ITEM
Meeting Date: July 12, 2005
Subject/Title: Approve an Employment Agreement for a new City Attorney
Prepared by: Karen Chew, Assistant City Manager
Submitted by: Donna Landeros, City Manager
Approve an employment agreement for a new City Attorney.
On February 22, 2005, the City Council authorized staff to hire CPS
Executive Search to begin recruitment efforts for a new City Attorney.
Dave Harris of CPS Executive Search met with the City Council to collect
information that would assist in his efforts to locate the City Council’s
ideal candidate. Based on this information as well as the classification
description for City Attorney, Mr. Harris prepared a job brochure, developed
an advertisement strategy, and recruited for City Attorney candidates.
Four finalists that appeared to possess the City Council’s most desirable
qualifications were invited to be interviewed by the City Council. The City
Council selected their top candidate and has extended an offer of employment
to that person.
The salary and benefits for the City Attorney are included in the 2005/2006
and 2006/2007 Operating Budget.
• Employment Agreement between the City of Brentwood and City Attorney
EMPLOYMENT AGREEMENT BETWEEN THE CITY OF BRENTWOOD
AND CITY ATTORNEY
This Agreement, made and entered into this __ day of _______2005, by and
between the City of Brentwood, a municipal corporation (hereinafter called
"Employer”) and Damien B. Brower (hereinafter called “Employee”), both of
whom agree as follows:
Section 1: Term
This Agreement shall become effective on August ___, 2005, and shall
continue until terminated by either party as herein provided.
Section 2: Duties and Authority
Employer agrees to employ Employee as City Attorney for the City and for the
Redevelopment Agency to perform the functions and duties as may be specified
in the Brentwood Municipal Code and to perform other legally permissible and
proper duties and functions.
Section 3: Compensation
A. Base Salary: Employer agrees to pay Employee an annual base salary of
Step C of the City Attorney pay scale payable in installments at the same
time that the other management employees of Employer are paid.
B. Management Incentive Pay: Employer shall pay Employee a sum of $700 per
month as Management Incentive Pay.
C. This Agreement shall be automatically amended to reflect any salary
adjustments that are provided or required by Employer's compensation
D. Consideration shall be given on an annual basis to increase compensation.
Employer shall provide Employee performance review and salary increase to
Step D after the first twelve months of employment. Performance review and
consideration for salary increases shall be given annually thereafter.
Section 4: Health, Disability and Life Insurance Benefits
Employer agrees to provide and to pay the premiums for health, vision,
dental, life and disability insurance for Employee and his dependents equal
to that which is provided to all other exempt management employees of the
City of Brentwood.
Section 5: Vacation, Sick, and Administrative/Executive Leave
A. Employee shall accrue twenty-one (21) days (168 hours) of annual vacation
leave each fiscal year. Vacation leave shall cap at forty (40) days (320
hours), at which point Employee shall cease to accrue vacation until such
time as his vacation accrual is less than forty (40) days (320 hours).
Employee shall be entitled to any vacation buyback program to the same
extent as other exempt management employees. After three years of employment
with the City of Brentwood, the accrual will increase to twenty-six (26)
days (208 hours) per year.
B. Employee shall be provided sick leave to the same extent as other exempt
management employees. Employee shall be provided an initial balance of forty
(40) hours sick leave.
C. Employee shall be entitled to up to sixty (60) hours of paid
Administrative/Executive leave each fiscal year. This leave shall not carry
over from year to year if unused.
D. Employee shall be entitled to Holidays to the same extent as other exempt
Section 6: Retirement and Deferred Compensation
A. Employee shall be eligible to participate, at no cost to Employee, in the
Public Employees’ Retirement System (PERS) for the 2.7% at age 55 formula
and the Third Level 1959 survivor benefit. The terms of the contract between
the City of Brentwood and CalPERS shall govern the eligibility for and level
of benefits to which Employee is entitled.
B. Employee shall be allowed to participate in the City’s deferred
compensation plan and shall receive a matching City contribution to the same
extent as other exempt management employees or $1,320 per year, whichever is
Section 7: Disability
If determined that Employee is unable to return to work, Employer shall have
the option to terminate this Agreement without further payment of
compensation and benefits if Employee is permanently disabled or is
otherwise unable to perform his duties because of sickness, accident,
injury, mental incapacity or death for a period of four (4) successive weeks
beyond any accrued sick leave, or for twenty (20) working days over a thirty
(30) working day period.
Section 8: General Business Expenses
A. Employer agrees to budget for and to pay for professional dues and
subscriptions of the Employee necessary for continuation and full
participation in national, regional, state, and local associations, and
organizations necessary and desirable for Employee’s continued professional
participation, growth, and advancement, and for the good of the Employer.
B. Employer agrees to budget for and to pay for travel and subsistence
expenses of Employee for professional and official travel, meetings, and
occasions to adequately continue the professional development of Employee
and to pursue necessary official functions for Employer, including but not
limited to the California League of Cities, International Municipal Lawyers
Association, and such other regional, state, and local governmental groups
and committees in which Employee serves as a member.
C. Employer also agrees to budget for and to pay for travel and subsistence
expenses of Employee for short courses, institutes, and seminars that are
necessary for Employee’s professional development and for the good of the
Section 9: Termination
For the purpose of this agreement, termination shall occur when:
A. The majority of the governing body votes to terminate Employee at a duly
authorized public meeting.
B. If Employer, citizens or legislature acts to amend any provisions of the
Brentwood Municipal Code pertaining to the role, powers, duties, authority,
responsibilities of Employee’s position that substantially changes the form
of government, Employee shall have the right to declare that such amendments
C. If Employer reduces the base salary, compensation or any other financial
benefit of Employee, unless it is applied in no greater percentage than the
average reduction of all department heads, such action shall constitute a
breach of this agreement and will be regarded as a termination.
D. If Employee resigns following an offer to accept resignation, whether
formal or informal, by Employer as representative of the majority of the
governing body that Employee resign, then Employee may declare a termination
as of the date of the suggestion.
E. Breach of contract declared by either party with a 30-day cure period for
either Employee or Employer. Written notice of a breach of contract shall be
provided in accordance with the provisions of Section 18.
F. Employer’s decision to terminate shall be made in closed session and
confirmed in a public meeting.
G. Employee may choose to resign his office instead of being terminated if a
decision by the City Council to terminate has been made in closed session;
provided, however, that the severance provisions of this Agreement remain
Section 10: Severance
Severance shall be paid to Employee when employment is terminated as defined
in Section 9.
Employer shall provide a minimum severance payment equal to six months
salary at the current rate of pay. This severance shall be paid in a lump
sum unless otherwise agreed to by Employer and Employee.
Employee shall also be compensated for all accrued, vacation time, and
Administrative/Executive leave. The Employer agrees to continue medical,
dental and vision benefits for a six month period after termination. Such
severance pay and benefits shall not be due or payable if the City Attorney
is terminated for willful misconduct, dishonesty, or fraud in office;
willful destruction, theft, misappropriation or misuse of City property;
conduct resulting in the revocation of his license to practice law; or after
being convicted of a felony or misdemeanor involving moral turpitude.
Section 11: Resignation
In the event that Employee voluntarily resigns his position with Employer,
Employee shall provide a minimum of sixty (60) days written notice unless
the parties agree otherwise. If Employee resigns his employment, he shall
not be entitled to any severance pay nor continued compensation and benefits
except as otherwise required under state or federal law.
Section 12: Performance Evaluation
Employer shall annually review the performance of Employee in August of each
year and may adjust Employee’s annual compensation package and salary based
upon that performance evaluation. Employer shall provide Employee with
written comments, if any, and may discuss its evaluation with him, at the
choice of either the Employer or Employee. The City Attorney will timely
cause to be placed on the City Council agenda for each year a “closed
session” for the purpose of the performance evaluation.
Section 13: Outside Activities
The employment provided for by this Agreement shall be Employee’s sole
employment. Employee agrees not to undertake any other employment or
consulting during the term of this Agreement without City Council approval,
unless otherwise allowed under State or Federal law, such as military
Section 14: Moving and Relocation Expenses
Employer shall pay for actual moving expenses not to exceed Three Thousand
Five Hundred dollars ($3,500) to cover relocation costs. Employer shall pay
an amount not to exceed $1,600.00 per month for a period up to six months to
reimburse Employee for temporary (rental) housing while Employee is in the
process of relocating to the Brentwood area.
Section 15: Indemnification
Beyond that required under Federal, State or Local Law, Employer shall
defend, save harmless and indemnify 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 as City Attorney or resulting from the
exercise of judgment or discretion in connection with the performance of
program duties or responsibilities, unless the act or omission involved
willful or wanton conduct. Employee may request and Employer shall not
unreasonably refuse to provide independent legal representation at
Employer’s expense and Employer may not unreasonably withhold approval.
Legal representation, provided by Employer for Employee, shall extend until
a final determination of the legal action including any appeals brought by
either party. Employer shall indemnify employee against any and all losses,
damages, judgments, interest, settlements, fines, court costs and other
reasonable costs and expenses of legal proceedings including attorneys fees,
and any other liabilities incurred by, imposed upon, or suffered by such
Employee in connection with or resulting from any claim, action, suit, or
proceeding, actual or threatened, arising out of or in connection with the
performance of his or her duties. Any settlement of any claim must be made
with prior approval of Employer in order for indemnification, as provided in
this Section, to be available.
Employee recognizes that Employer shall have the right to compromise and
unless Employee is a party to the suit which Employee shall have a veto
authority over the settlement, settle any claim or suit; unless, said
compromise or settlement is of a personal nature to Employee. Further,
Employer agrees to pay all reasonable litigation expenses of Employee
throughout the pendency of any litigation to which Employee is a party,
witness or advisor to Employer. Such expense payments shall continue beyond
Employee's service to Employer as long as litigation is pending. Further,
Employer agrees to pay Employee reasonable consulting fees and travel
expenses when Employee serves as a witness, advisor or consultant to
Employer regarding pending litigation.
Section 16: Bonding
Employer shall bear the full cost of any fidelity or other bonds required of
Employee under any law or ordinance.
Section 17: Other Terms and Conditions of Employment
Employer, only upon agreement with Employee, shall fix any such other terms
and conditions of employment, as it may determine from time to time,
relating to the performance of Employee, provided such terms and conditions
are not inconsistent with or in conflict with the provisions of this
Agreement, the Brentwood Municipal Code or any other law.
Section 18: Notices
Notice pursuant to this Agreement shall be given by depositing in the
custody of the United States Postal Service, postage prepaid, addressed as
EMPLOYER: City Clerk
City of Brentwood
150 City Park Way
Brentwood, CA 94513
EMPLOYEE: Damien B. Brower
1017 Middlefield Road
Redwood City, CA 94063
Alternatively, notice required pursuant to this Agreement may be personally
served in the same manner as is applicable to civil judicial practice.
Notice shall be deemed given as of the date of personal service or as the
date of deposit of such written notice in the course of transmission in the
United States Postal Service. Each party will notify the other of any
changes of address that would require any notice or delivery to be directed
to another address.
Section 19: General Provisions
A. Integration. This Agreement sets forth and establishes the entire
understanding between Employer and Employee relating to the employment of
Employee by Employer. 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 Employer and Employee
as well as their heirs, assigns, executors, personal representatives and
successors in interest.
C. Severability. The invalidity or partial invalidity of any portion of this
Agreement will not effect 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.
CITY OF BRENTWOOD
Brian Swisher, Mayor Damien B. Brower
Ana Gutierrez, Vice-Mayor
Annette Beckstrand, Councilmember
Robert “Bob” Taylor, Councilmember
Robert “Bob” Brockman, Councilmember
Cindy Garcia, Interim City Clerk
Approved as to Form:
Tom Curry, Interim City Attorney