Loading...
HomeMy WebLinkAbout03 - Employment Agreement for Fire Chief ServicesQ SEW Pp�T CITY OF s NEWPORT BEACH C'94IF09 City Council Staff Report July 25, 2017 Agenda Item No. 3 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager - 949-644-3001, dkiff@newportbeachca.gov PREPARED BY: Barbara J. Salvini, Human Resources Director bsalvini@newportbeachca.gov PHONE: 949-644-3259 TITLE: Employment Agreement with Charles Duncan for Fire Chief Services FA -MV d -TA14 III Following a promotional recruitment process, the City Manager selected Charles ("Chip") Duncan for the position of Fire Chief. The proposed Employment Agreement (Attachment 1), outlining the terms and conditions of employment for the Fire Chief, is presented for the City Council's consideration. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2017-46, A Resolution of the City Council of the City of Newport Beach, California, Authorizing the City Manager to Execute an Employment Agreement Between the City of Newport Beach and Charles Duncan for the Services of Fire Chief and to Adjust the Salary Range for Fire Chief Commensurate with the Employment Agreement. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for the Employment Agreement. DISCUSSION: Following the retirement of the former Fire Chief, the City Manager initiated a promotional recruitment to fill the vacancy, as provided in the Municipal Code 2.24.100 regarding the selection of public safety chiefs (Police and Fire). Candidates for the Fire Chief position participated in a qualifications approval process, and at the conclusion of the process, the City Manager selected Charles ("Chip") Duncan as the new Fire Chief. 3-1 Fire Chief Employment Agreement July 25, 2017 Page 2 Mr. Duncan brings a wealth of executive and administrative skill to the position; he has vast knowledge and experience specific to the City of Newport Beach; he has worked in fire service for over thirty years, and he has been serving as the Assistant Fire Chief since June 2013. As outlined in Attachment 1, the term of the proposed Employment Agreement is one and one-half years, through December 2018. In addition to the benefits provided to all employees in the Executive Management category of the unrepresented Key and Management Group, the proposed Employment Agreement for Fire Chief Duncan provides for the following: Compensation: The City agrees to pay Chief Duncan an annual base salary of $228,072. Future Adjustments to Compensation: Chief Duncan will be eligible to receive a 2.75% salary adjustment in January 2018. Annual Uniform Allowance: The City will report the value of uniforms provided to Chief Duncan at $1,519, which is intended to reflect expenses for pants, shirts, jackets, and related attire, consistent with other employees in the Fire service. Annual Physical Exam: The City will reimburse Chief Duncan for the actual cost of an examination, up to a maximum of $1,000. Severance: If terminated without cause, the City will pay Chief Duncan six (6) months' base salary, plus medical benefits where applicable. PERS: Chief Duncan will contribute 11.25% of salary toward PERS. In January 2018, his contribution will increase to 12.0%. Flex Leave: Chief Duncan will accrue leave at the rate of 8.95 hours per pay period. Other benefits, including cafeteria allowance, medical, dental and vision insurance, disability coverage, life insurance, and retiree health savings, shall be provided in the same manner as received by other employees in the Key and Management Group. Following City Councils' adoption of Resolution No. 2017-46, and upon signatures of the parties, Human Resources and Finance Department staff will work to implement the terms of the Employment Agreement. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 3-2 Fire Chief Employment Agreement July 25, 2017 Page 3 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Resolution Attachment 1 — Employment Agreement with Charles Duncan, Fire Chief 3-3 Attachment A RESOLUTION NO. 2017 — 46 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE AN EMPLOYMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND CHARLES DUNCAN FOR THE SERVICES OF FIRE CHIEF AND TO ADJUST THE SALARY RANGE FOR FIRE CHIEF COMMENSURATE WITH THE EMPLOYMENT AGREEMENT WHEREAS, following the retirement of the former Fire Chief in December 2016, the City Manager conducted a promotional recruitment to fill the vacancy; WHEREAS, at the conclusion of the qualifications appraisal process the City Manager, pursuant to his authority under Section 504 of the Newport Beach City Charter, selected Charles Duncan as the new Fire Chief; and WHEREAS, the City of Newport Beach desires to enter into an Employment Agreement with Charles Duncan for services of Fire Chief. NOW THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 2: The City Council does hereby authorize the City Manager to execute the Employment Agreement between the City of Newport Beach and Charles Duncan, attached hereto as "Attachment 1" and incorporated herein by this reference. Section 3: Effective January 1, 2018, the salary range for Fire Chief shall be adjusted Two and Seventy -Five Hundredths Percent (2.75%), commensurate with the increase provided in the Employment Agreement. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any 3-4 Resolution No. 2017 - Page 2 of 2 one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 25th day of July, 2017. ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE ro, - Aaron C. Harp City Attorney Kevin Muldoon Mayor Attachment 1: Employment Agreement 2 3-5 ATTACHMENT 1 Duncan Agreement EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH FIRE CHIEF This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of July 25, 2017 ("Effective Date") and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and CHARLES "CHIP" DUNCAN ("Employee") an individual (sometimes collectively referred to herein as "the Parties"). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business under the statutes of the State of California and the City Charter. B. Pursuant to Section 504(a) of the City Charter, and in accordance with Newport Beach Municipal Code ("NBMC") Section 2.24.100, the City Manager has directed a qualifications appraisal process and screened all qualified applicants and other qualified persons known by the City Manager to be available for the position of Fire Chief. C. Following the qualifications appraisal process, the City Manager believes Employee to be the best qualified on the basis of executive and administrative qualifications, with special reference to the experience and knowledge of accepted practice with respect to the duties of Fire Chief as contemplated by, and in conformity with, NBMC Section 2.24.100. D. The City desires to employ Employee as Fire Chief and to enter into an Agreement with Employee upon the terms and conditions in this Agreement. E. Employee is willing to accept such employment on the terms and conditions set forth in this Agreement. Page 1 3-6 Duncan Agreement F. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment, and that there are no other agreements between them - oral, written or implied. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1. Term and Non -Renewal This Agreement shall be effective July 25, 2017 ("Effective Date") through and including December 20, 2019 unless terminated earlier as provided by this Agreement, or unless extended by a subsequent writing executed by the Parties. Employer shall notify Employee not less than six (6) months prior to December 20, 2019, or, in the event the term of this Agreement is hereafter extended, such later expiration date specified in said subsequent writing, if it is the Employer's intention not to extend the Agreement for an additional period. SECTION 2. No Break in Service Employee has been continuously employed by the City since March 23, 1987. Employee's employment as Fire Chief shall not constitute a break in service. SECTION 3. Duties and Authority Employer agrees to employ Employee as Fire Chief, to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the Municipal Code and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist, specifically, but not limited to, those set forth in the "Fire Chief' description attached hereto as Exhibit A and incorporated herein by this reference. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by the City Manager, may legally assign. Page 2 3-7 Duncan Agreement SECTION 4. Compensation and Performance Evaluation. A. Base Salary. Employer agrees to pay Employee an annual base salary of $228,072 (Two Hundred Twenty Eight Thousand and Seventy Two Dollars) ("Base Salary"), subject to deductions and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements (collectively, the "Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in benefit plans or programs described in Section 5 of this Agreement. The annual Base Salary of Employee is within the approved salary range adopted by resolution of the City Council of the City of Newport Beach ("City Council"). This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner in which Executive Management Employees are paid; however, except as expressly provided in Section 4 (B), the Base Salary shall not be adjusted unless this Agreement is amended in writing. B. Adjustments to Compensation. Effective January 1, 2018, Employee shall receive a 2.75% (Two and Three-fourths Percent) increase to Base Salary. The Salary Range for Fire Chief will be deemed amended and adjusted equal to the amount of any Base Salary increase provided in this Section. C. Uniform Allowance. As permissible by law and subject to the provisions and limitations under the Public Employees' Retirement Law (California Government Code § 20000 et sea.), as amended or superseded from time to time, the City shall report the value of provided uniforms at One Thousand, Five Hundred and Nineteen Dollars ($1,519) per year, in accordance with California Public Employees' Retirement System ("CalPERS") requirements. The Parties agree Page 3 3-8 Duncan Agreement the reported value of uniforms is intended to reflect clothing such as pants, shirts, jackets, and related attire and excludes health and safety related equipment. If CalPERS does not agree that the uniform allowance qualifies as special compensation, the City shall have no liability in this regard or duty to represent Employee in proceedings related to said determination. This Agreement shall be deemed amended whenever the City approves a new uniform allowance via a Memorandum of Understanding ("MOU") or Side Letter Agreement with the Newport Beach Fire Management Association ("NBFMA"). D. Evaluations. Employer, via the City Manager, shall conduct annual performance examinations on or about the anniversary date of the Effective Date of this Agreement, or, consistent with that of other Executive Management Employees. SECTION 5. Employee Benefits A. Leave Benefit Balances Carried Over. All of Employee's accrued Flex Leave and other benefit balances shall carry over as set forth herein. Employee's Flex Leave shall continue to accrue under the terms of applicable City policies and the provisions in Section 5 (B) immediately below. Employee's Sick Leave shall not accrue after the Effective Date and its balance of 219.95 hours, less any time used from July 8, 2017 through the Effective Date of this Agreement, shall remain in Employee's bank for use or disbursement upon separation, as provided in the Key and Management Compensation Plan ("Compensation Plan") or Employee Policy Manual ("EPM"). B. Flex Leave. Employee shall accumulate Flex Leave as provided in the NBFMA MOU, at the rate of Eight and Nine and One -Half Tenths (8.95) hours per pay period. Employee's maximum accrual for Flex Leave is capped at fifty-two (52) times Employee's accrual rate, which equals Four Hundred Sixty -Five and Four Tenths (465.40) hours. Earned Flex Leave in excess of the maximum permitted will be paid bi-weekly at Employee's then -existing hourly rate of pay ("Spillover Pay"). The right to use and/or sell back accumulated Flex Leave shall be consistent with the NBFMA MOU and state and/or federal leave law(s). Page 4 3-9 Duncan Agreement This Agreement shall be deemed amended whenever the City Council adopts a resolution altering the NBFMA MOU Leave provisions with regard to accrual or maximum accrual caps. C. Administrative Leave. Employee shall be entitled to a maximum of Eighty (80) hours of paid Administrative Leave per calendar year, as determined by the City Manager in his or her sole discretion. Administrative Leave will not accrue from calendar year to calendar year and must be used, and if not used will be lost, by the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Holidays. Employee will take time off for holidays in the same manner as Executive Management Employees ("Regular Holidays"). The City will not report Regular Holidays as special compensation. E. Other Leaves. Employee shall be entitled to the same Bereavement Leave, Jury Duty Leave, Workers' Compensation Leave and Medical Treatment for Industrial Injuries Leave as received by Executive Management Employees as set forth in the Compensation Plan and/or EPM. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the Compensation Plan or EPM in regard to these leaves. F. Additional Benefits. Unless otherwise provided in this Agreement, Employee shall receive the same benefits as are available to Executive Management Employees under the Compensation Plan and or Employee Policy Manual, including cafeteria benefits, LIUNA Supplemental Pension, IRS Section 125 Flexible Spending Accounts, short term and long term disability plans, life insurance plans, and deferred compensation plans. This Agreement shall be deemed amended whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. Page 5 3-10 Duncan Agreement G. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of One Thousand Dollars ($1,000). H. City Provided Vehicle. Employee's duties require him to be available to respond to the demands of City business at all times and outside of regular business hours, including weekends. Therefore, City shall provide Employee with a vehicle that may be used for City -related purposes. The make and model of the vehicle shall remain within the City's sole discretion. City shall pay for reasonable maintenance of the vehicle and gasoline. Although Employee's use of the vehicle primarily shall be for City -related business, Employee shall pay for gasoline for personal use to the extent Employee uses the vehicle for incidental personal business. I. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any of the Executive Management Employees. J. Retirement. Employee shall be eligible for the "3% at 50" retirement formula. Employee shall contribute the full statutory member contribution, equal to Nine Percent (9.0%) of pensionable compensation, plus an additional Two and Two and One -Half Tenths Percent (2.25%) of pensionable compensation towards retirement costs as permitted under Government Code Section 20516(f), for a total contribution of Eleven and Two and One -Half Tenths Percent (11.25%). Effective January 1, 2018, in addition to the statutory member contribution of Nine Percent (9.0%), Employee shall contribute an additional Three Percent (3.0%) of pensionable compensation towards retirement costs as permitted under Government Code Section 20516(f), for a total contribution of Twelve Percent (12.0%). The Parties agree that the City will not report the value of an Employer Paid Member Contribution as special compensation. If the City Council enters into an agreement between the City and NBFMA, which requires members of the NBFMA to pay contributions in excess of Twelve Percent (12.0%), this Agreement shall be deemed amended and Employee shall be Page 6 3-11 Duncan Agreement subject to the same formula percentage contribution as it is applied to the members of the NBFMA and for the same duration. However, in no event shall the Employee's retirement contribution be less than Twelve Percent (12%) as of and after January 1, 2018. Employee retirement contributions that are in addition to the normal CalPERS Member Contribution shall be calculated on Base Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent permitted by state law, including the California Government Code. K. Key and Management Group, Executive Management Category. Except as expressly provided herein, Employee shall be treated as a member of the City's Key and Management Group, Executive Management category. As such, the benefits, terms and conditions of the Compensation Plan shall apply to Employee as provided more specifically above, provided however, in the event of a conflict between the provisions of this Agreement and the Compensation Plan, this Agreement shall prevail. SECTION 6. General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees either to pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. Consistent with Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Manager, Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and participation in meetings, at institutes, training programs, conferences, conventions and similar gatherings that support leadership development and the Page 7 3-92 Duncan Agreement advancement of Employer and Employee's mutually agreed upon goals, and which are related to Employee's duties or Employer's operations and held in the continental United States. For purposes of this paragraph, reasonable expenses are limited to the reasonable and actual cost of registration, airfare (where applicable), ground transportation and meals. Reasonable expenses will also include the reasonable and actual cost of lodging for meetings outside of Orange County. C. The expenses to be budgeted and paid in this Section (6) (C) and Sections 6 (A) and (B) immediately above are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Manager. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 7. At -Will Employment Relationship A. Consistent with Section 504 of the City Charter and NBMC Section 2.12.020, Employee is appointed by, and serves at the pleasure of, the City Manager. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without cause. Employer shall pay Employee for all services through the effective date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 8 "Severance and Benefit Payoff at Termination, and General Release Agreement" below. Nothing herein shall be construed to limit the rights and obligations of City and Employee as set forth in the Firefighters Procedural Bill of Rights Act, codified at Government Code section 3250, et seg. ("FPBRA") B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer, subject only to Employee providing sixty (60) calendar days' prior written notice to Employer of the effective date of his resignation. Upon the effective date of resignation, Page 8 3-13 Duncan Agreement Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential "Severance" pay per Section 8 below. SECTION 8. Severance and Benefit Payoff at Termination, and General Release Agreement A. If Employer terminates this Agreement (thereby terminating Employee's employment) without cause, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar days' written notice and, if Employee signs, delivers to the City, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit B, Employer shall pay Employee the following: 1. A lump sum benefit equal to six (6) months of his then applicable Base Salary, and six (6) months of medical coverage as provided under the Compensation Plan as long as Employee is already enrolled and receiving medical coverage through the City medical benefits plan at the time of termination. In accordance with Government Code Section 53260(a), Employee shall not receive a cash settlement that is greater than Employee's monthly Base Salary multiplied by the number of months left on the unexpired term of the Agreement. The lump sum payment described in this Section 8 (A) shall be referred to herein as "Severance". B. If Employer terminates this Agreement (thereby terminating Employee's employment) with cause, as determined by the City Manager, Employee shall not be entitled to any Severance. As used in this Agreement, cause shall mean any of the following: 1. Conviction of a felony; Page 9 3-94 Duncan Agreement 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code section 53243.4; 4. Willful abandonment of duties; 5. A pattern of repeated, willful and intentional failure to carry out materially significant and legally constituted direction of the City Manager or the policy decisions of the City Council made by the City Council as a body; and/or 6. Any other intentional or grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer causing a material and substantial adverse effect on Employer. C. Any dispute as to whether Severance is excused under Section 8 (B) shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under FPBRA. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. Unused Sick Leave will be compensated consistent with the EPM provision regarding Payment for Sick Leave Upon Termination as amended from time to time or superseded. No compensation shall be paid for any accrued but unused Administrative Leave. Page 10 3-15 Duncan Agreement SECTION 9. Employee's Obligations and Hours of Work A. Employee shall devote his full energies, interests, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may include time outside normal office hours (including attendance at City Council meetings). Employee's Base Salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside of normal office hours to business activities of Employer and the exempt, salaried nature of the employment, Employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at the Newport Beach Fire Department during normal business hours, subject to Section 9 (B) immediately below. B. Employee is authorized to work the 9/80 schedule as defined in Section 2 (RR)(1) of the EPM and referred to in Miscellaneous Section (D) of the Compensation Plan as either may be amended from time to time or superseded. However, as Fire Chief, Employee shall not take a 9/80 day when the press of business or the public safety needs of the community require Employee's attendance. SECTION 10. Confidentiality and Non -Disparagement A. Employee acknowledges that in the course of his employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information"). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from Page 11 3-16 Duncan Agreement public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. All Confidential Information shall be promptly returned to the City immediately upon the effective date of any severance of employment. B. Except as otherwise required by law, in the event the City terminates Employee with or without cause, the City and Employee agree that no member of the City Council, the City management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 10 shall survive the termination of this Agreement. SECTION 11. Outside Activities Consistent with California Government Code section 1125 et seq., Employee shall not engage in any employment, activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with, inconsistent, incompatible with or inimical to, or which materially interferes with his duties, functions and responsibilities to Employer. SECTION 12. Indemnification Consistent with the California Government Code section 995 et sea., Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event Employer determines there is a conflict of interest between Employer and Employee and Page 12 3-17 Duncan Agreement independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 13. Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 14. Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 100 Civic Center Drive Newport Beach, California 92660 With a courtesy copy to: Page 13 3-18 Duncan Agreement City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Charles Duncan At the home address then shown in Employer's file(s) Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing. SECTION 15. General Provisions A. Integration. This Agreement sets forth the final, complete and exclusive agreement 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 this Agreement or are otherwise rendered null and void. The Parties by mutual written agreement may amend any provision of this Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. B. Binding Effect. This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. Page 14 3-19 Duncan Agreement C. Choice of Law. This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter, NBMC or City Regulations. In the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the NBMC, the City Charter or the NBMC shall prevail over this Agreement. All other City personnel ordinances, resolutions, rules, and policies shall apply to Employee in the same manner as applied to other Executive Management Employees. F. Employee's Independent Review. Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this Agreement. (Signatures on Following Page) Page 15 3-20 Duncan Agreement IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER EMPLOYEE CITY OF NEWPORT BEACH, A California Municipal Corporation An Individual In IN David Kiff, City Manager Charles Duncan Date: Date: APPROVED AS TO FORM Office of the City Attorney By: Date: Aaron C. Harp, City Attorney ATTEST: Date: Leilani Brown, City Clerk Attachments: Exhibit A: Job Position Description Exhibit B: General Release Agreement [End of Signatures] Page 16 3-21 CITY OF NEWPORT BEACH FIRE CHIEF DEFINITION: To serve as the executive director of the Fire Department; to plan, organize, direct and coordinate the fire suppression and prevention, emergency medical services, ocean safety, hazardous waste mitigation, and disaster preparedness programs and activities of the department; to serve as a member of the City Manager's executive management team; and to provide highly responsible and professional staff assistance to the City Manager and City Council. SUPERVISION RECEIVED AND EXERCISED: Receives general administrative direction from the City Manager. Exercises direct supervision over management, supervisory, professional, technical and clerical personnel. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties • Plan, direct, and review the operation, services and activities of the Fire Department, including fire suppression, hazardous material mitigation, fire and life safety code compliance, emergency medical services, ocean lifeguards, citywide disaster preparedness and response; administer the overall operation of the department, including hiring, personnel administration, budgeting, and community relations; assess community service expectations and requirements and develop appropriate methods to meet service requirements; ensure the maximum utilization of manpower, equipment, and supplies; • Develop, plan and implement departmental goals and objectives; develop, recommend and administer approved policies and procedures; coordinate departmental activities with those of other City departments and outside agencies and organizations; provide professional and technical advice and assistance to the City Manager and City Council on matters related to departmental functions; Prepare and present staff reports and answer questions; • Plan, organize, select and supervise the work of departmental staff; coach, motivate, monitor, correct and evaluate staff performance; serve as the second level supervisor of staff supervised by division managers and review performance evaluations prepared by subordinate managers; develop and implement staff training programs and plans; recommend employee recognition, discipline and termination; ensure that City personnel policy and employee agreements are implemented and applied consistently within the department; EXHIBIT A —Page 1 3-22 Fire Chief Page 2 City of Newport Beach • Supervise and participate in the development of the departmental budget; participate in the forecast of revenue, expenses and additional funds needed for staffing, equipment, materials, and supplies; administer the approved departmental budget and guide subordinate managers in developing and administering division and unit budgets; • Represent the City and participate in professional and public meetings and organizations, as appropriate; attend staff meetings; participate in mandated training and staff development; respond to and meet with property owners, homeowner groups, business districts, and the public; meet with, provide information and negotiate with various regulatory agencies to satisfy their requirements; represent the City as a witness in legal actions; • Oversee and direct departmental office operations; maintain appropriate records and files; coordinate workflow; prepare reports, agenda items memoranda, letters and other forms of correspondence; and • Perform related duties as assigned. QUALIFICATIONS: To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below are representative of the knowledge, skill, and/or ability required. Knowledge of: Advanced principles and practices of fire suppression and prevention, emergency medical services, disaster preparedness, training, and ocean lifeguard programs and services; Principles and practices of organization, administration and personnel management and leadership, particularly as applied to the analysis and evaluation of programs, policies and operational needs; Principles and techniques of budget development and administration; Applicable Federal, State and local laws, ordinances, codes and regulations; Principles of supervision, training and performance evaluation; Current technological and communication equipment and software applicable to the delivery of departmental services to internal and external customers; Modern office practices, procedures, methods and equipment; and EXHIBIT A — Page 2 3-23 Fire Chief City of Newport Beach Page 3 The use of a PC and applicable software. Ability to: Direct, plan and organize the activities of a comprehensive citywide Fire Department, including fire suppression and prevention, emergency medical services, disaster preparedness, personnel training, and ocean lifeguard programs and services; Analyze problems; identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals; Interpret and apply City policies, procedures, rules and regulations; Develop and administer sound departmental policies and procedures; Stay abreast of new trends, innovations, standards and guidelines in the fields of fire suppression and prevention, emergency medical services, disaster preparedness, hazardous material mitigation and ocean lifeguard services and safety; Provide leadership to a diverse work force; meeting City objectives while maintaining positive employee morale; Gain cooperation through discussion and persuasion; Select, supervise, train and evaluate personnel; Prepare and administer a departmental budget; Maintain confidentiality of medical and other privileged information; Communicate clearly and concisely, both orally and in writing; Appear for work on time; Follow directions from a supervisor; Understand and follow posted work rules and procedures; Accept constructive criticism; and Establish and maintain cooperative working relationship with those contacted in the course of work. This position may be required to work overtime hours as needed. EXHIBIT A — Page 3 3-24 Fire Chief Page 4 City of Newport Beach EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is qualifying. A typical way to obtain the knowledge and abilities would be: Experience: Ten years of increasingly responsible fire suppression and prevention experience, including at least five years of responsible management and supervisory experience. Training: Completion of coursework leading to a bachelor's degree in fire administration or a closely related field. A master's degree in public administration, fire administration or a related field is desirable. LICENSE OR CERTIFICATE: Possession of, or ability to obtain, a valid and appropriate California driver's license is required. Key and Management Group — Executive Management Revised 10/31/02 EXHIBIT A — Page 4 3-25 Duncan General Release GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between CHARLES "CHIP" DUNCAN ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider and sign it. Employer hereby advises Employee to consult with his legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following his signing of this Agreement ("Revocation Period"), he may revoke his execution of the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in section H of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination ("Salary Payment"). Employee also acknowledges that Employer has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in Section I of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. EXHIBIT B — Page 1 3-26 Duncan General Release H. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses from Employer. I. Severance. Within ten (10) days following Employee's signing, delivering to the City Council or designee, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 8 of the Employment Agreement between Employer and Employee effective July 25, 2017, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 8 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 1. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. EXHIBIT B — Page 2 3-27 Duncan General Release Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. J. Fees. Employee and Employer agree that in the event of litigation relating to this Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees. (Signatures on Following Page) EXHIBIT B — Page 3 3-28 EMPLOYER CITY OF NEWPORT BEACH, A California Municipal Corporation David Kiff, City Manager Date: APPROVED AS TO FORM Office of the City Attorney Aaron C. Harp, City Attorney ATTEST: on Leilani Brown, City Clerk EXHIBIT B — Page 4 EMPLOYEE An Individual Date: Date: Date: [End of Signatures] Duncan General Release Charles Duncan 3-29