This employment agreement outlines the terms of employment for Tom Hilbert as the Head Coach of the CSU Women's Volleyball program from January 1, 2014 through December 31, 2018, with the possibility of annual extensions. It details Hilbert's duties, compensation including an annual base salary of $200,000, eligibility for fringe benefits, and requirements for outside activities and public relations duties. The agreement replaces any prior agreements between the parties.
This employment agreement outlines the terms of employment for Tom Hilbert as the Head Coach of the CSU Women's Volleyball program from January 1, 2014 through December 31, 2018, with the possibility of annual extensions. It details Hilbert's duties, compensation including an annual base salary of $200,000, eligibility for fringe benefits, and requirements for outside activities and public relations duties. The agreement replaces any prior agreements between the parties.
This employment agreement outlines the terms of employment for Tom Hilbert as the Head Coach of the CSU Women's Volleyball program from January 1, 2014 through December 31, 2018, with the possibility of annual extensions. It details Hilbert's duties, compensation including an annual base salary of $200,000, eligibility for fringe benefits, and requirements for outside activities and public relations duties. The agreement replaces any prior agreements between the parties.
This employment agreement outlines the terms of employment for Tom Hilbert as the Head Coach of the CSU Women's Volleyball program from January 1, 2014 through December 31, 2018, with the possibility of annual extensions. It details Hilbert's duties, compensation including an annual base salary of $200,000, eligibility for fringe benefits, and requirements for outside activities and public relations duties. The agreement replaces any prior agreements between the parties.
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of this 1st day of January,
2014 (''Effective Date 11 ), by and between THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM (the "Board"), acting by and through COLORADO STATE UNIVERSITY ("University" or "CSU") for the benefit of the DEPARTMENT OF INTERCOLLEGIATE ATHLETICS (the "Department"), and TOM HILBERT ("Hilbert") on the other hand (collectively, the "Parties"). WHEREAS, the Board, CSU and Hilbert are parties to that certain Agreement effective February 2, 2000 (the "Original Employment Agreement"); and WHEREAS, the Parties mutually desire to cancel the Original Employment Agreement and enter into a new employment agreement that terminates, supersedes and completely replaces the Original Employment Agreement; and WHEREAS, the Parties agree that this Agreement terminates, supersedes and completely replaces the Original Employment Agreement and any and all prior agreements or understandings concerning Hilbert's employment with CSU; WHEREAS, CSU wishes to employ Hilbert as Head Coach of the CSU Women's Volleyball program and to assure itself of the continued services of Hilbert on the terms set forth herein; WHEREAS, the Board and the University have found that the term of employment set forth herein is necessary in light of prevailing market conditions and competitive employment practices in Colorado and other states; and WHEREAS, Hilbert wishes to be so employed under the terms set forth herein; NOW, THEREFORE, in consideration of the promises, mutual covenants, the above recitals, and the agreements herein set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree to the following terms and conditions of Hilbert's employment. 1. EMPLOYMENT; TERM. CSU hereby employs Hilbert as Head Coach of the CSU Women's Volleyball program (''Program") commencing on the Effective Date and continuing thereafter until December 31, 2018, unless extended in accordance with the terms set forth herein or by mutual written agreement signed by the authorized representatives of the Parties, or sooner terminated under the provisions of Section 6 herein ("Term"). Beginning on January 1, 2016, and on January 1 of each year thereafter (the "Renewal Date"), the Term shall be automatically extended by an additional year, unless either Hilbert or CSU provide written notice to the other that the Term shall not be so extended at least thirty (30) days prior to such Renewal Date. Accordingly, in the event such notice of non-extension is provided, the Term shall expire three (3) years from the last Renewal Date preceding the written notice of non-extension, and no further automatic extensions shall occur. The date to which the Agreement has been most recently extended shall be deemed the ending date of the Agreement, and such date shall be called the "Termination Date." This Agreement in no way grants Hilbert a claim to tenure in employment, but Hilbert's employment shall not be deemed at will. Hilbert agrees to such hiring, engagement and employment, subject to the terms and conditions of this Agreement. In such capacity, Hilbert shall be under the general supervision of the President of the University (the "President 11 ) and the immediate supervision of the Director of Athletics (the "Director") of the University. The Director and Hilbert shall meet annually upon the conclusion of each volleyball season to discuss the Program's status and progress, as well as Hilbert's performance under this Agreement. CSU and Hilbert agree to review the terms and conditions of the Agreement after the 2016 volleyball season. 2. DUTIES. Throughout the Term of this Agreement, Hilbert shall render exclusive, full-time services as the Head Coach of the Program at CSU. Hilbert agrees that he will at all times faithfully, industriously, and with use of his full experience, ability, skill and talent, perform all of the duties that may be required pursuant to the terms of this Agreement. Hilbert shall perform such duties as may be assigned by the President and/or the Director in connection with supervision and administration of the Program. Hilbert shall confer with the Director on all matters requiring administrative decisions. The annual schedule for the Women's Volleyball program shall be developed in collaboration with and is subject to the approval of the Director, such approval not to be unreasonably withheld. If necessary, the Director and Hilbert may confer with the President if a problem cannot otherwise be resolved. The Director and Hilbert agree to meet regularly to discuss the Program. Such meetings shall take place in person (unless mutually agreed otherwise) at a time and place reasonably convenient and agreed to by the Director and Hilbert. Each year during the Term, Hilbert shall complete, and Hilbert and the Director shall review together and in-person, the Annual Performance Survey provided to Hilbert by the Director. Hilbert's principal place of employment shall be in the facilities of the Department in Fort Collins, Colorado, and, when appropriate and as required, at any of the CSU System's various offices, branches, divisions, and venues throughout the State of Colorado, and at such other places as the Director shall deem appropriate and in the interest of CSU. Hilbert shall travel with the CSU Women's Volleyball team ("Team") to all games, appearances and events involving the Team, and shall make all such travel arrangements through the Athletic Department staff assigned to such administrative duties, seeking all necessary and appropriate approvals for travel arrangements and expenses as required by University policies and procedures. 3. OUTSIDE ACTIVITIES. Hilbert agrees that he will engage in no business or professional activities that conflict with his duties to the University, the Department, or the CSU System. With the exception of passive investments, Hilbert understands and agrees that he must seek and receive prior written approval from the Director, such approval not to be unreasonably withheld, should he wish to engage in any such outside activities, or engage in other employment or consulting activities, in accordance with the University's conflict of interest and conflict of commitment policies, as stated in CSU's Academic Faculty and Administrative Professional Manual, and all applicable policies of the Department, as may be amended from time to time. As stipulated in Bylaw 11.2.2 of the NCAA Division I Manual, Hilbert agrees to provide a written account annually to the President for all athletically related income and benefits from sources outside the institution. 4. SALARY, BENEFITS AND OTHER COMPENSATION. a. Base Salary. For all services rendered and to be rendered hereunder, during the Term of this Agreement, CSU agrees to pay to Hilbert, and Hilbert agrees to accept, an annual base 2 salary of Two Hundred Thousand Dollars ($200,000.00) per contract year ("Base Salary"), which shall be paid in monthly installments, beginning on the Effective Date and ending upon the expiration or termination of the Term. Such Base Salary shall be subject to such deductions or withholdings as CSU is required to make pursuant to law or by further agreement with Hilbert. The Director will evaluate Hilbert' s performance at least annually following the end of each volleyball season. Hilbert shall be eligible to receive increases to his Base Salary based on merit and/or cost-of-living adjustments. b. Fringe. Hilbert shall be eligible for all fringe benefits, including annual leave and sick leave, and such employer contributions to the cost of such benefits and/or retirement plans as apply to Administrative Professional staff within the University, as well as those specifically established for head coaching positions, if any. c. Media and Public Relations. In addition to the duties described herein above, and in consideration of the Base Salary described above, Hilbert shall throughout the Term engage in all necessary and appropriate media and public relations activities reasonably related to his position, including, by way of example and not by limitation, meeting radio and television programming obligations, making personal appearances, giving speeches, carrying out public relations activities and performing other services besides coaching that promote the interests and public image of the University. For all other activities, Hilbert may retain the net proceeds. Hilbert shall be solely responsible for payment of any and all taxes incurred in connection with such compensation. Such activities will be subject to the reasonable prior approval of the Director; shall not conflict with any current or existing agreements, contracts, sponsorships, products, vendors or entities; shall be in conformity with University policy regarding the use of its trademarks; shall be subject to the University's conflict of interest and conflict of commitment policies; and shall serve the best interests of the University. As stipulated in Section 3 of this Agreement, Hilbert agrees to provide a written account annually to the President for all athletically related income and benefits from sources outside the institution. d. Shoe and Apparel Contracts. It is understood that CSU currently has apparel and shoe contractual commitments. Hilbert agrees to abide by those commitments. Subject to those commitments, Hilbert may have opportunities from time to time during the tenn of this Agreement to enter into one or more promotional contracts with athletic shoe and apparel providers, pursuant to which Hilbert agrees to wear particular brands, provide apparel or other items to his assistants, and make promotional statements or appearances and the like. Hilbert agrees that he shall not enter into any such contracts or commitments, nor extend or renew any future contract without the express, prior consent of the Director and that, to the extent deemed reasonable and necessary by the Director (and approved as required by University rules and procedures), the University may elect to be a party or give written consent to all such contracts. Hilbert shall provide copies of all such proposed contract documents to the Director promptly upon receiving them and shall make no oral or written promises or commitments to other parties until such consent and approval is obtained. Hilbert acknowledges that the Director may seek an all-sport arrangement with one or more such providers, and that such arrangements may be given priority over other offers. Such activities shall be subject to the University's conflict of interest and conflict of commitment policies and shall serve the best interests of the University. e. Camps. During the Term, Hilbert will be pennitted to conduct summer volleyball camps. The camps shall be operated by the Department in accordance with University and NCAA policies and all applicable rules and regulations. The University shall make reasonable efforts to 3 make the necessary facilities available for the camp for fourteen (14) full days in the months of June, July and August of each contract year. These dates may be adjusted from time to time by the University as necessary to meet changes in NCAA legislation and University constraints. An amount equal to the net revenue from such camps may be paid as supplemental salary to Hilbert and his assistant coaches, administrative assistants and/or volleyball operations directors, as mutually determined by Hilbert and the Director with approval from the President. For purposes of this section, "net revenues" shall be the amount remaining after deduction of all normal expenses of operating the camp as permitted by applicable NCAA regulations. g. Courtesy Car. During the Term, Hilbert is expected to travel extensively in order to perform all of the duties and activities described herein. For such purposes, he shall be provided, at CSU's discretion, with either the use of a suitable vehicle or an equivalent car stipend. Such use or stipend shall be governed by the Department's applicable policies. Personal use unrelated to University business may result in the reporting of taxable income by Hilbert. The University makes no representation regarding personal income tax consequences related to same and Hilbert shall be responsible for the payment of any tax related to such courtesy cars, if any. h. Club Membership. During the Term, Hilbert is expected to engage existing and potential donors and Program supporters in both social and business relationships that further the interests of the Program, the Department, and the University generally. In order to facilitate these relationships, Hilbert will be provided with a paid membership to at least one golf/country club of the Department's choice. Such membership is intended to be used for official business purposes. Personal use unrelated to University business may result in the reporting of taxable income to Hilbert. The University makes no representation regarding personal income tax consequences related to same and Hilbert shall be responsible for the payment of any tax related to such club membership, if any. i. Additional Compensation for Extraordinary Achievements of the Program. Hilbert represents, and has been hired upon the belief and expectation that he has special, exceptional and unique knowledge, skill and ability in athletic coaching and administration which, in addition to future acquisitions of experience at the University, the University believes will be an important contribution to its success and excellence in its intercollegiate athletic programs. As an additional incentive to Hilbert to achieve the very highest level of success for the Program and the academic success of its student athletes, the University hereby agrees to pay compensation, in addition to all other amounts set forth herein, as follows: I. Beginning December 31, 2014, and each December 31 thereafter during the Term, Hilbert shall be eligible to receive annual Performance-Based Additional Compensation in the amounts set forth below based on the Program's performance in the immediately preceding season if: (I) the Program's most recently published official four-year APR score meets or exceeds the NCAA's then-current minimum cut score requirement (e.g., 930 for the 2013-14 data collection year); and (2) there have been no findings or formal allegations by the NCAA of a major NCAA violation against the Program as of each December 31 during the applicable year under consideration (e.g., January 1, 2014 through December 31, 2014 in respect of any additional compensation that may be earned and due for 2014): 4 AJJitional Compensation (i) Win the Mountain West Conference regular season championship; QB An amount equal to 111th (ii) Win, if later instituted, a Mountain West of Hilbert' s Base Salary for Conference Tournament championship; OR the year in which this (iii) Qualify for the NCAA Championship additional compensation Tournament. was earned. (Note: Hilbert may earn this element of the Additional Compensation only once in any single season. Therefore, even if Hilbert accomplishes more than one of these achievements in a single season (e.g., wins the regular season and a conference tournament championship in the same season), he will be limited to receiving an amount equal to 1/12 of his Base Salary for that year. Advance to the Sweet 16 of the NCAA Championship Additional $15,000.00 Tournament Advance to the Final 4 of the NCAA Championship Additional $15,000.00 Tournament Win the NCAA National Championship Tournament Additional $25,000.00 2. Any Performance-Based Additional Compensation payments shall be payable on or before January 31 immediately following the year in which such additional compensation was earned. 3. If CSU receives a Notice of Allegation from the NCAA notifying CSU of an alleged major violation or alleged repeated secondary violation(s) that rise to the level of a major violation before the Performance-Based Additional Compensation for a particular contract year has been paid, then the payment will be withheld until the matter is fully and finally resolved. This option to withhold payment of the Performance-Based Additional Compensation shall apply to: (i) any alleged major violation by Hilbert or series of repeated secondary violations by Hilbert that rise to the level of a major violation; and (ii) any alleged major violation or series of repeated secondary violations that rise to the level of a major violation by a member of Hilbert's coaching/operations/administrative staff, unless Hilbert can clearly and affirmatively show (as reasonably determined by CSU) that Hilbert promoted an atmosphere of compliance and monitored his staff in the specific subject matter areas (e.g., recruiting, financial aid, extra benefits, etc.) in which the violation(s) occurred and that he was neither aware of nor complicit in the commission of the violations. If a final decision rendered by the NCAA indicates that a major violation occurred, then Hilbert shall not be eligible to receive the Performance-Based Additional Compensation for that year. However, if a final decision rendered by the NCAA indicates that no major violation occurred, then CSU shall pay the Performance-Based Additional Compensation to Hilbert with interest calculated at the U.S. Treasury 1-year bond rate. 5 4. If Hilbert receives Perfonnance-Based Additional Compensation in a particular Contract Year, and if a major violation is later detennined through a final ruling by the NCAA to have occurred during that contract year, then CSU shall have the option to require Hilbert to reimburse CSU for all of the Perfonnance-Based Additional Compensation paid to him for that Contract Year. In order to obtain such reimbursement, CSU shall have the option of withholding subsequent monthly Base Salary payments (not to exceed 20% of the gross paycheck amount paid each month as Base Salary) and any future Perfonnance-Based Additional Compensation payments that may be due to Hilbert, up to the amount of required reimbursement. For purposes of example only, if the NCAA were to detennine through a final ruling on September 1, 2016 that Hilbert had committed a major violation on June 15, 2014, CSU would have the option to require reimbursement of any Perfonnance-Based Additional Compensation received by Hilbert for the period January 1, 2014 through December 31,2014. However, the June 15, 2014 major violation would not impact additional compensation earned by Hilbert after those periods or Hilbert's ability to earn subsequent additional compensation after those periods. Any Perfonnance-Based Additional Compensation contemplated by this Agreement shall be subject to applicable law and NCAA regulations. The Parties agree to negotiate in good faith comparable, alternative additional compensation metrics if such payments are contrary to applicable law or regulation. k. Hilbert shall have the right to select and retain a coaching staff, operations director(s) and such other staff deemed necessary by Hilbert, subject to the financial constraints of the University and the approval of the Director. The Director shall make specific recommendations to the President concerning such personnel, who shall have the ultimate right of approval pursuant to delegated power from the Board. 5. POLICIES AND PROCEDURES. Hilbert agrees that he is subject to and will at all times have knowledge of, observe and comply with and shall take reasonable measures to assure that his assistant coaches, other staff members, operations director(s) and student athletes, shall observe and comply with the laws, rules and regulations of the State of Colorado, and the regulations, policies and procedures of CSU and the CSU System, the NCAA, and the athletic conference(s) in which the University is a member, as such laws, regulations, policies and procedures may be modified, added to or eliminated from time to time. As stipulated in Bylaw 11.2.1 of the NCAA Division I Manual, a coach who is found in violation of NCAA regulations shall be subject to disciplinary or corrective action as set forth in the provisions of the NCAA enforcement procedures, including suspension without pay or termination of employment for significant or repetitive violations. 6. TERMINATION. This Agreement shall expire on June 30,2018, if not extended as set forth in Section I herein or tenninated as set forth in this Section 6: a. Termination by Death or Disability. Subject to applicable state or federal law, in the event Hilbert shall die during the period of his employment hereunder or become disabled such that Hilbert is unable to carry out his job responsibilities for a period of three months or more, Hilbert's 6 employment and CSU's obligation to make payments hereunder shall terminate on the date of his death, or the date upon which, in the sole determination of the President, Hilbert has failed to carry out his job responsibilities for three (3) months because of a disability. b. Termination for Cause. The University shall have the right to terminate this Agreement during the Term, upon written notice pursuant to Section 8(i) herein, for "Just Cause," which shall include: (i) Determination by the Director, the athletic conference(s) in which the University is a member, or the NCAA that Hilbert (regardless of whether or not a final determination has been made by the NCAA with respect to the conduct constituting such violation) has committed a major violation, or repeated secondary violations, of NCAA rules and regulations (as defined in Bylaw 19.02.2 of the NCAA Division 1 Manual, or such other Bylaw(s) as may be adopted or amended during the Term hereof); (ii) Determination by the Director, the athletic conference(s) in which the University is a member, or the NCAA that a member of Hilbert's coaching staff or administration staff acting under Hilbert's supervision, direction or control (regardless of whether or not a final determination has been made by the NCAA with respect to the conduct constituting such violation) has committed a major violation, or repeated secondary violations, of NCAA rules and regulations (as defined in Bylaw 19.02.2 of the NCAA Division 1 Manual, or such other Bylaw(s) as may be adopted or amended during the Term hereof), unless Hilbert can clearly and affirmatively demonstrate (as reasonably interpreted by CSU) that he promoted an atmosphere of compliance and monitored his staff in the specific subject matter areas (e.g., recruiting, financial aid, extra benefits, etc.) in which the violation(s) occurred and that he was neither aware nor complicit in the commission of the violation(s); (iii) Determination by the Director that Hilbert's conduct could reasonably result in conviction for, or a plea of nolo contendere to, a felony or misdemeanor resulting in a jail sentence or any crime involving moral turpitude; (iv) Determination by the Director that Hilbert failed or refused in a material or significant manner to follow the directions of the Director after being given written notice and an opportunity to cure; (v) Determination by the Director that Hilbert engaged in dishonest, fraudulent or unethical conduct that results, directly or indirectly, in demonstrable harm to the interests of CSU (including, but not limited to, providing information to a bookie, betting money or anything of value on the outcome or score of any athletic contest, intercollegiate, amateur or professional, in a sport in which the NCAA conducts championship competition, promising impermissible benefits, engaging or supporting academic misconduct, evading drug testing requirements or engaging in unethical business dealings); (vi) Determination by the Director that Hilbert is unwilling or unable to perform the duties of Head Volleyball coach after being given written notice and an opportunity to cure, as specified in writing herein by the Director; (vii) Determination by the Director that Hilbert engaged in conduct that is prejudicial to the best interests of CSU or the Program or that casts CSU or the Program in an unreasonably negative 7 public light; (viii) Determination by the Director that Hilbert engaged in conduct that constitutes a material violation of university policy; (ix) Determination by the Director that Hilbert has engaged in conduct that constitutes physical, emotional or verbal abuse; and (x) Determination by the Director, the University's Office of Equal Opportunity, an external administrative agency, or a court of law that Hilbert violated the University's anti- discrimination policies, including the sexual harassment policy, the University's policy against retaliation, or any state or federal laws. If Hilbert's employment as Head Coach is terminated for Just Cause, he shall not be entitled to any other or further compensation of any kind, whether or not such compensation might have been earned, but was not yet earned by the date on which such termination is effective according to the notice, as a result of, or in connection with, any of the achievements enumerated in Section 4.i herein. c. Termination without Cause. The University shall have the right at all times to terminate this Agreement, without cause. If in the judgment of the Director, with the concurrence of the President, the best interests of the University would be served by terminating Hilbert's employment under the Agreement, such termination may be effected immediately upon notice from the Director and the President, under the terms and conditions stated in this Section 6(c). In the event that Hilbert's employment is terminated without cause, he will be entitled to receive all compensation actually earned and due and owing as of the effective date of such termination. Also, Hilbert shall be eligible for payment of any accrued but unused vacation as of the date of termination and in accordance with the terms and conditions of the Academic Faculty and Administrative Professional Manual. However, upon such termination Hilbert shall not be eligible for any additional compensation under Section 4.i above that has not already been earned. In addition, as consideration for the option and flexibility to terminate this Agreement without cause, in the event that Hilbert's employment is terminated under this Section 6(c), Hilbert will receive the remaining Base Salary due for the remainder of the Term of the Agreement (the "Best Interest Flexibility Amount"), provided that for the purpose of calculating the Best Interest Flexibility Amount for a termination occurring on or after December 31,2015, the remaining Term of the Agreement shall be deemed never to exceed three (3) years. Any Best Interest Flexibility Payment is further subject to the limitations stated in this Agreement. At the University's discretion, any Best Interest Flexibility Amount would be prorated monthly and paid in arrears. After any termination under Section 6( c) of the Agreement, Hilbert agrees to use his best efforts to secure comparable employment as a head volleyball coach from another employer. If Hilbert accepts any such employment within three (3) years after the termination date, any Best Interest Flexibility Amount owed by the University shall be reduced by the amount of any such compensation earned by Hilbert. Thus, the Best Interest Flexibility payment would be limited to the difference between any remaining Best Interest Flexibility Amount owed and any compensation earned through Hilbert's subsequent employment. If Hilbert's new employment provides compensation equal to or greater than any Best Interest Flexibility Amount owed by the University, the University's obligation to pay any Best 8 Interest Flexibility Amount shall cease immediately and permanently upon the date Hilbert begins such new employment or his receipt of such compensation. This Section 6( c) states the entire liability of the University for any damages in the event of a termination for convenience or erroneous termination for cause under this Agreement. d. Termination by Hilbert. At all times during the Term, Hilbert shall have the right to terminate this Agreement, without cause, at any time upon prior written notice to the University, except that Hilbert shall not, without good cause (such as would be cause for termination for breach by the University), give his notice of termination that is to take effect between July 1 and the last regular season game of the then-current CSU women's volleyball season. If such notice is given during the foregoing time frame, the termination effective date shall be determined at the sole discretion of the Director, but in no event later than the final game (to include any post-season tournament game) of that season. In the event that Hilbert so terminates this Agreement during the Term and accepts a coaching position at another university or for a professional or national team, Hilbert shall pay to the University, as liquidated damages because the Parties agree that the hann to the University cannot otherwise be reasonably calculated, the sum of One Million Dollars ($1,000,000.00). This amount shall be payable in full on a lump-sum basis within ninety (90) days ofthe effective date of Hilbert' s termination. 7. ASSISTANT COACHES and other KEY STAFF MEMBERS. a. Base Pay. Hilbert is permitted to employ two full-time assistant coaches and one full-time director of operations (the "Volleyball Staff') for a total annual compensation amount of $163,000. The specific amounts to be paid to each of these employees shall be approved by the Director, such approval not to be unreasonably withheld. Hilbert will evaluate the performance of the Volleyball Staff at least annually following the end of each volleyball season. Each member of the Volleyball Staff shall be eligible to receive increases to their respective Base Salary based on merit and/or cost-of-living adjustments. b. Additional Compensation for Extraordinary Achievements. As an additional incentive to achieve the very highest level of academic and athletic success for the Program, CSU will pay compensation, in addition to all other amounts set forth herein, as follows: 1. Beginning with the 2014 season, the Volleyball Staff (as defined above) shall be paid additional compensation as follows: a.l/24 1 h of their annual base pay (i.e., one-half of one month of base pay) if the Program qualifies for the NCAA Division I National Championship Tournament; b.An additional l/24 1 h of their annual base pay (i.e., one-half of one month of base pay) ifthe Program advances to the Sweet 16 ofthe NCAA Division I National Championship Tournament; c.An additional II 12th of their annual base pay (i.e., one month of base pay) if the Program advances to the Final Four of the NCAA Division I National Championship Tournament. n. All additional compensation contemplated in this section must be recommended by Hilbert and approved by the Director on an annual 9 basis, such approval not to be unreasonably withheld. iii . All additional compensation contemplated in this section is subject to the same conditions regarding APR that apply to Hilbert in Section 4.i herein. Furthermore, all additional compensation contemplated in this Section 7.b is also subject to the same delay, recapture and claw-back provisions related to NCAA violations that apply to Hilbert in Section 4.i herein. iv. All additional compensation contemplated in this section shall be payable on or before January 31 following the season in which the achievement occurred. c. Fringe. Each full-time assistant shall be eligible for all fringe benefits and such employer contributions to the cost of such benefits and/or retirement plans as apply to Administrative Professional staff within the University. d. Financial Constraints. Each of the payments authorized in Section 7 shall be subject to financial constraints of the University and the approval of the Director. e. Termination. The members of Hilbert's coaching staff shall be deemed administrative professionals and shall be employed on an at-will basis. In the event of termination of Hilbert, current Colorado law would allow the University to pay up to three months' severance (salary and benefits) to Hilbert's assistant coaches provided they are otherwise eligible. For those assistant coaches who would not be eligible for the severance payment, the University will seek to work out other reasonable and fair arrangements that are permitted by law. 8. GENERAL PROVISIONS. a. All services performed by Hilbert under this Agreement are personal and may not be assigned, subdelegated or subcontracted in any way except upon the prior, written approval of the Director and such other University officials as required by applicable laws, rules and policies of the University. b. This Agreement is subject to all provisions of law applicable to the University; all rules and regulations of the University, including, but not limited to its Academic Faculty and Administrative Professional Manual and the Athletic Department Staff Manual, as such policies may be amended from time to time in the sole discretion of the University; and the System and the University's fiscal rules and similar rules and regulations promulgated pursuant to laws applicable to the University, which laws, rules and regulations shall control in the event of any conflict. c. Under C.R.S. 24-19-104, the following provisions are required by law to be contained in this Agreement and are hereby incorporated and made a part hereof. This section is subject to such modifications as may be required by changes in applicable federal or state law, or federal or state implementing rules, regulations, or procedures of that federal or state law. Any such required modification shall be automatically incorporated into, and be made a part of, this Agreement as of the effective date of such change as if that change was fully set forth herein. [24-19-104(1)(b)): No compensation, whether as a buy-out of the remaining term of the contract, as liquidated damages, or as any other form of remuneration, shall be owed or paid to [Hilbert] ... upon or after the termination of [this) contract except 10 for compensation that was earned prior to termination prorated to the date of termination; and [24-19-104(l)(c)]: If [this] contract is not substantially in compliance with the prohibition against payment of post-employment compensation, the contract is null and void. [24-19-104(1.5)(a)(II)]: ... [T]he institution remains free to terminate the contract or extension without penalty if sufficient funds are not appropriated. d. Taxes. Hilbert agrees to be responsible for the payment of any taxes due on any and all compensation, or benefits provided by CSU. Hilbert agrees to defend, indemnify and hold harmless CSU, its governing board, officials, employees, insurers, and agents, from any and all claims or penalties asserted against them, for any failure to pay taxes due on any salary, compensation, or benefit provided by CSU pursuant to this Agreement or otherwise in connection with his employment. Hilbert expressly acknowledges that CSU has not made, nor herein makes, any representation about the tax consequences of any consideration provided by CSU to Hilbert or his attorneys, agents or representatives in connection with this Agreement. e. Modifications and Amendments. This Agreement may not be amended, modified, superseded, canceled, renewed or expanded, or any terms or covenants hereof waived, except by a writing executed by each of the Parties. f. Waiver. Failure of any party at any time or times to require performance of any provision hereof shall in no manner affect his or its right at a later time to enforce the same. No waiver by a party of a breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any provision in this Agreement. Any express waiver of any provision hereof must be made in writing and signed by the authorized representatives of the Parties, which in the case ofCSU, shall be the Athletic Director with approval of the President. g. Representation and Warranty. Hilbert warrants and represents that he may freely enter into this Agreement and that he is subject to no other contract, claim, obligation, or restriction, including, but not limited to any existing arrangements with his current employer or past employer, which would be breached or violated by execution of this Agreement. Further, Hilbert explicitly represents and warrants that the University will not incur any "buy out" liability as a result of Hilbert entering into this Agreement. h. Assignment. This Agreement involves the provision of personal services and shall not be assignable. Any purported assignment in contravention of this section shall be null and void. i. Notices. All notices given hereunder shall be given by certified mail, or delivered by hand, to the other party at his or its last known home or business address, or at any other address hereafter furnished by notice given in like manner. Hilbert promptly shall notify CSU of any change in his address. Each notice shall be effective as of the date it is hand delivered, or if sent by certified mail, three days after the date of mailing. 11 j. Governing Law; Personal Jurisdiction and Venue. This Agreement and all disputes relating to this Agreement shall be governed in all respects by the laws of the State of Colorado as such laws are applied to agreements between Colorado residents entered into and performed entirely in Colorado. The Parties acknowledge that this Agreement constitutes the minimum contacts to establish personal jurisdiction in Colorado and agree to the exercise of personal jurisdiction by Colorado courts. The Parties further agree that any disputes relating to this Agreement shall be brought in courts located in the County of Larimer, State of Colorado. k. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties hereto with regard to the employment of Hilbert by CSU as of the Effective Date, and shall supersede any and all prior offer letters, agreements, arrangements and understandings, written or oral, pertaining to the subject matter hereof. No representation, promise or inducement relating to the subject matter hereof has been made to Hilbert that is not embodied in this Agreement, and neither CSU nor Hilbert shall be bound by or liable for any alleged representation, promise or inducement not so set forth. I. Severability. In the event that any provlSlon of this Agreement is held unenforceable for any reason, the remaining provisions of this Agreement shall remain in full force and effect. m. Contract a Public Record. The University shall make the terms of this contract available to the public for inspection and copying during regular business hours. n. Indemnification. Hilbert agrees to indemnify and hold harmless the University, its governing board, officials, employees, insurers and agents from any and all claims or penalties asserted against them as a result of serious or intentional NCAA rules violation(s) by Hilbert or by those who have committed such serious or intentional rules violation by following Hilbert's specific and direct instructions. [The remainder of this page is intentionally blank] 12 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DAY AND YEAR SET FORTH FIRST ABOVE. Date: __ ....... 3'-+-j_-zA __ ,,___'Z-_0_ 1 _-f ___ _ THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM, acting by and through Colorado State University
Dr. Ant ony A. Frank, Prestdent Colorado State University APPROVED: k Graham, Dir Colorado State University L SUFFICIENCY:
Deputy General Counsel Colorado State University System ALL CONTRACTS REQUIRE APPROVAL BY THE COLORADO STATE UNIVERSITY CONTROLLER C.R.S. 24-30-202 and University policy require the Colorado State University Controller to approve all Contracts. This Contract is not valid until signed and dated below by the University Controller or delegate. Hilbert is not authorized to begin performance until such time. If Hilbert begins performing prior thereto, the University is not obligated to pay Hilbert for such performance or for any good and/or services provided hereunder. COLORADO STATE UNIVERSITY CONTROLLER: By: -1- J<Jk .....; \:....l. j ____ _ 13