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HomeMy WebLinkAbout16 - Amended & Restated Employment AgreementsGC%,N, ,,,� CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 16 November 13, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Attorney's Office Aaron Harp, City Attorney 949 - 644 -3131, aharp@newportbeachca.gov PREPARED BY: Aaron Harp, City Attorney APPROVED: 0. TITLE: Amended & Restated Employment Agreements for City Manager and City Clerk ABSTRACT: The City Council has previously asked employees to contribute more towards their retirement and to accept reduced leave benefits. The Amended and Restated Employment Agreement for the City Clerk makes her retirement contributions consistent with those of the City Manager and City Attorney, while providing for her first salary increase in almost three (3) years. The City Manager's Amended and Restated Employment Agreement provides for his first salary increase since his appointment in 2009. Also, both agreements reflect modifications required by amendments to the California Government Code. Adopt Resolution No. 2012 - 99 approving and authorizing the Mayor and Deputy City Clerk to execute the attached Amended and Restated Employment Agreements for the City Clerk and City Manager, respectively. FUNDING REQUIREMENTS: The Amended and Restated Employment Agreements provide for salary increases that collectively total approximately $19,750 and one -time merit payments to both the City Clerk and City Manager. A portion of these increases in salary and one -time merit payments is offset by increased retirement contributions and reduced benefit leaves. Amended & Restated Employment Agreements for City Manager and City Clerk November 13, 2012 Page 2 City Managers Emplovment Aareement Mr. David Kiff serves as City Manager of the City of Newport Beach ( "City") under an Employment Agreement dated April 12, 2011 ( "Employment Agreement "). Mr. Kiffs Employment Agreement was amended on September 27, 2011 to adjust his retirement contributions and benefit levels to be consistent with the City Attorney's agreement. The City Council has completed an evaluation of the City Managers performance. Based on Mr. Kills performance and experience, it was recommended that he receive a one -time merit payment and an increase In his base salary from $225,000 to $231,750. This will be Mr. Kiffs first increase in base salary since he was appointed City Manager in September of 2009. While Mr. Kill is already contributing 9% of his salary towards his PERS retirement, the Employment Agreement specifies that If the City Council adopts a retirement contribution for the Key and Management Group that is greater than 9 %, but not less than 9 %, the Employment Agreement will be deemed amended and Mr. Kiff will be subject to the greater PERS contribution rate applicable to the Key and Management Group. City Clerk's Employment Agreement Ms. Leilani Brown serves as City Clerk under an Employment Agreement dated April 12, 2011. The City Council has completed an evaluation of the City Clerk's performance. Based on Ms. Brown's performance and experience, it was recommended that she receive a one -time merit payment and an increase in her base salary from $110,829.82 to $123,800. This will be Ms. Brown's first increase in salary since November, 2009. Additionally, Ms. Brown has agreed to adjust her retirement contributions and benefit leaves to be consistent with those provided to the City Manager and City Attorney. This will limit her Flex Leave Maximum Allowable Balance (hours) to 400 hours, reduce her Administrative Leave to 40 hours, and require that Ms. Brown make contributions towards her retirement of at least 9% of her salary. The agreement further specifies that if the City Council adopts a retirement contribution for the Key and Management Group that is greater than 9 %, but not less than 9 %, Ms. Brown's Employment Agreement will be deemed amended and Ms. Brown will be subject to the greater PERS contribution rate. Based upon Ms. Brown's 15 years of service to the City, the agreement reflects an accrual rate for Flex Leave of 9.23 hours per pay period (30 days annually), which Is consistent with that provided for in the Citys Key and Management Compensation Plan. Amended & Restated Employment Agreements for City Manager and City Clerk November 13, 2012 Page 3 Both Emplovment Agreements Assembly Bill 1344 was approved by the Governor on October 9, 2011 and became effective on January 1, 2012. This bill added Article 2.6 (commencing with Section 53243) to Chapter 2 of Part 1 of Division 2 of Title 5 to the California Government Code. Both the City Manager's and City Clerks Amended and Restated Employment Agreements include provisions within sections 7 and 11 to fully comply with require- ments contained within Assembly Bill 1344. Redlined drafts of the Amended and Restated Employment Agreements are attached to this staff report as Attachments 2 and 3. 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. 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). Submitted by: A C4� C, Aaron Harp, City Attorney City Attorneys Office Attachments: (1) Resolution No. 2012- (2) Redline of Dave Kiffs Employment Agreement (3) Redline of Leilani Brown's Employment Agreement ATTACHMENT 1 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING THE AMENDED AND RESTATED EMPLOYMENT AGREEMENTS FOR THE CITY MANAGER AND CITY CLERK WHEREAS, Mr. David Kiff was first appointed by the City of Newport Beach as City Manager under an Employment Agreement effective from September 12, 2009 through September 11, 2011 ( "Initial Employment Agreement "); and WHEREAS, on September 28, 2010, Mr. Kiffs Initial Employment Agreement was subsequently amended pursuant to that certain Amendment No. One to Employment Agreement between the City of Newport Beach and Mr. Kiff; and WHEREAS, on April 12, 2011, Mr. Kiff and the City entered Into an Amended and Restated Employment Agreement that superseded the Initial Employment Agreement and the Amendment No. One ("Employment Agreement "); and WHEREAS, on September 27, 2011, Mr. Kills Employment Agreement was amended pursuant to that certain Amendment No. One to the Employment Agreement between the City of Newport Beach and Mr. Kiff; and WHEREAS, Mr. Kiff continues to serve, as City Manager based upon a City Council finding that Mr. Kiff is the best qualified individual for this position on the basis of his executive and administrative qualifications, with special reference to his experience in, and his knowledge of, accepted practice in respect to the duties of the office as set forth In the City's Charter, and WHEREAS, City Charter Section 503 requires the City Council to establish the City Manager's compensation by ordinance or resolution; and WHEREAS, Mr. Kiff and the City desire to enter into an Amended and Restated Employment Agreement to increase Mr. Kiffs current compensation and provide a one- time merit payment; and WHEREAS, Ms. Leilani i. Brown was first appointed by the City of Newport Beach as City Clerk under an Employment Agreement effective from November 22, 2008 through November 22, 2010 ( "Initial Employment Agreement "); and -1- WHEREAS, Ms. Brown was appointed, and continues to serve, as City Clerk based upon a City Council finding that Ms. Brown is the best qualified individual for this position on the basis of her executive and administrative qualifications, with special reference to her experience in, and her knowledge of, accepted practice in respect to the duties of the office as set forth in the City s Charter, and WHEREAS, on March 9, 2010, Ms. Brown's Initial Employment Agreement was subsequently amended pursuant to that certain First Amended Employment Agreement with Leilani Brown; and WHEREAS, on April 12, 2011, Ms. Brown and the City entered into an Amended and Restated Employment Agreement that superseded the Initial Employment Agreement and the March 9 Amendment ( "Agreement"); and WHEREAS, Ms. Brown and the City desire to enter into an Amended and Restated Employment Agreement to increase Ms. Brown's current compensation, provide a one- time merit payment and reduce the benefits provided to a level that is consistent with those benefits received by the City Manager and City Attorney. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: 1. The City Council hereby approves and authorizes the Mayor and Deputy City Clerk to execute the Amended and Restated Employment Agreement with Mr. David Kiff attached hereto as Exhibit "A" and incorporated herein by reference. 2. The City Council hereby approves and authorizes the Mayor and Deputy City Clerk to execute the Amended and Restated Employment Agreement with Ms. Leilani Brown attached hereto as Exhibit "B" and incorporated herein by reference 3. The City Council finds this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(cx2) (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, Califomia Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or Indirectly. 4. This resolution shall take effect immediately upon Its adoption by the City Council, and the Deputy City Clerk shall certify the vote adopting this resolution. [CONTINUED ON NEXT PAGE.] -2- ADOPTED this —N day of November, 2012. Nancy Gardner, Mayor ATTEST: Lillian Hams, Deputy City Clerk Attachment: Exhibit "A ": Amended and Restated Employment Agreement for Dave Kiff Exhibit "B ": Amended and Restated Employment Agreement for Leilani Brown -3- EXHIBIT A AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement ") is made effective as of November _, 2012 ("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 DAVID KIFF ("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 as it is now tieing conducted under the statutes of the State of California and the Charter of City. B. Employee has been continuously employed by City as City Manager since September 12, 2009. Employee is currently employed under an Employment Agreement dated April 12, 2011 ( "Employment Agreement "). The Employment Agreement was subsequently amended pursuant to that certain Amendment No. One to Employment Agreement Between the City of Newport Beach and David Kiff dated September 27, 2011 ( "Amendment One "). C. The Parties mutually agree that they intend for this Agreement to supersede the Employment Agreement and Amendment One, and that upon execution of this Agreement, the Employment Agreement and Amendment One shall have no force or effect D. 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. Page i NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Tenn and Notice of Non - Renewal This Agreement shalt be for an indefinite term, subject to termination as provided for in this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Manager 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. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee: (i) an annual base salary at the rate of $231,750.00 (Two Hundred Thirty-One Thousand Seven Hundred Fifty Dollars); and (B) a one -time merit payment in the amount of $25.96 (Twenty-Five Dollars and Ninety-Six Cents) for each paid work day from January 1, 2012 to the Effective Date of this Agreement, subject to deduction 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 ( "Executive Management Employees "). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Page 2 Employee shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the Initial Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and his leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( °Compensation Plan "), at the current rate of 25 (twenty-five) days per calendar year. His maximum accrual is limited to four hundred (400) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to forty (40) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of Page 3 each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly provided herein, Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available under the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000.00). F. Automobile Allowance. Employee's duties require him to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 per month as an automobile allowance so that Employee may respond to these demands of City business. G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. Amendment. Employee's benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. I. PERS. Pursuant to a separate agreement, miscellaneous (non - safety) members have agreed to have 3.42% of the employer retirement costs added to the employee's rate pursuant to California Government Code Section 20516. The Parties agree that Employee shall pay a total of nine percent (9 %) of the Page 4 Employee's retirement costs (3.42% employer cost sharing rER sidel) and 5.58% employee normal member contribution rEE side]) on a pre -tax basis pursuant to IRS Code Section 414(h)(2). In the event the City Council adopts a Compensation Plan in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %), but not less than nine percent (9 %), that set forth herein, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it applied to the Key and Management Group covered under the Compensation Plan and for the same duration. In no event shall Employee's contribution towards Employee's retirement be less than nine percent (9 %). SECTION 5: 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 to either 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 Employers normal requirements and must be submitted within time limits established by Employer. B. Employer agrees to budget and pay for professional dues, membership and subscriptions of Employee necessary for continuation and participation in the Intemational City /County Management Association (ICMA), Cal -ICMA, the California City Manager's Foundation (CCMF), and state and national League of Cities and such other organizations as Employer and Employee may agree from time to time. Employer also agrees to pay the cost of a corporate surety bond as contemplated by section 503 of the City Charter. C. Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and participation in meetings, institutes, training programs, Page 5 conferences, conventions and similar gatherings that support leadership development and the 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, coach -class 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. D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C 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 Council. 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 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. 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, and with or without notice. 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 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. 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 forty -five (45) calendar days prior written notice to Employer of the effective date of his resignation. Page 6 SECTION 7: 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 affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee a lump sum severance benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 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; Page 7 4. Willful abandonment of duties; 5. Repeated failure to cant' out a directive or directives of the City Council made by the City Council as a body; and 6. Any 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. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. 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. No compensation shall be paid for any accrued but unused administrative leave. SECTION S: Employee's Obltaations and Hours of Work Employee shall devote his full energies, Interest, 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 also 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 normal office hours to business activities of Page 8 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 City Hall, Monday through Friday during normal business hours. SECTION 9: 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 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. 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 9 shall survive the termination of this Agreement. Page 9 SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, 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 there is a conflict of interest between Employer and Employee in such a case so that 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 Assembly Bill 1344 (Stats. 2011, ch. 692) adding Article 2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of Division 2 of Title 5 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 12: 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. Page 10 SECTION 13: 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% City Clerk 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: David Ktff at the home address then shown in Employer's files 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 as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: 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 parries 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 during the life of the 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 Council. Page 11 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. 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 or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. 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. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE A Municipal Corporation By: By: Nancy Gardner, Mayor David Kiff Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: A�..� -� Aaron C. Harp, City Attorney Date: 16131 / / Z ATTEST: 0 Lillian Hams, Deputy City Clerk Page 13 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between DAVID KIFF ( "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 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 the signing of this Agreement ( "Revocation Period"), he may revoke 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 paragraph 1 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. 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 paragraph 2 of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. 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 ( "Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement effective December 22, 2010, less applicable deductions, and shall provide the months of medical benefits as EXHIBIT A — Page provided in that same Section 7 ( "Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. 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. 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. EXHIBIT A — Page 2 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover his/its reasonable attorneys' fees and costs. Dated 20_ CITY OF NEWPORT BEACH Dated: , 20_ APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE M Aaron C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk DAVID KIFF EXHIBIT A — Page 3 EXHIBIT B AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement") is dated November_, 2012, (the "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 LEILANI I. BROWN ( "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 as it is now being conducted under the statutes of the State of Califomia and the Charter of City. B. Employee has been continuously employed by City as City Clerk under an Employment Agreement effective from November 22, 2008 through November 22, 2010 ( "Initial Employment Agreement"), that certain First Amended Employment Agreement dated March 9, 2010 ( "First Amendment") and, most recently, an Employment Agreement dated April 12, 2011 (Second Employment Agreement "). C. The Parties mutually agree that they Intend for this Agreement to supersede the Initial Employment Agreement, First Amendment, and Second Employment Agreement, and that upon execution of this Agreement, the Initial Employment Agreement, First Amendment and Second Employment Agreement shall have no force or effect. D. 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. Page 1 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non - Renewal This Agreement shall be for an indefinite term, subject to termination as provided for in this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Clerk 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. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee: (i) an annual base salary of $123,800 (One Hundred Twenty-Three Thousand Eight Hundred Dollars); and (ii) a one -time merit payment in the amount of $49.89 (Forty -Nine Dollars and Eighty-Nine Cents) for each paid work day from November 21, 2011 to the Effective Date of this Agreement, subject to deduction 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 ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee shall be established by resolution of the City Council. This Agreement Page 2 shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer, by the City Council, and Employee shall promptly set mutually - agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in her employment service between the end of the Initial Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 30 days (9.23 hours per Pay Period) per calendar year. Employee's Maximum Allowable Balance (hours) shall be four hundred (400) hours on and after the Effective Date of this Agreement. The Parties agree that if Employee has a Flex Leave balance of over 400 hours upon the Effective Date of this Agreement, Employee shall have thirty (30) calendar days from the Effective Date of this Agreement to use or sellback any Flex Leave In excess of 400 hours in accordance with the Leave Sellback provisions set forth In the Compensation Plan ( "Initial Sellback"). Any Initial Sellback by Employee of Flex Leave hours shall be paid by City at Employee's hourly rate of pay in effect Page 3 prior to the Effective Date of this Agreement. After the Initial Sellback, the right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Effective January 1, 2013, Employee shall only be entitled to forty (40) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly provided herein, Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to non - public safety management employees of the City, as provided in the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000:00). F. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. G. Amendment. Employees benefits provided under this Section 4 are not Ned to the compensation of any other City employee or group of City employees except as expressly provided in this Section. H. PERS. Pursuant to a separate agreement, miscellaneous (non- safety) members have agreed to have 3.42% of the employer retirement cost added to the Page 4 employee's rate pursuant to California Government Code Section 20516. The Parties agree that Employee shall pay a total of nine percent (9 %) of the Employee's retirement costs (3.42% employer cost sharing [ER side] and 5.58% employee normal member contribution ["EE side"J) on a pre -tax basis pursuant to IRS Code Section 414(h)(2). In the event the City Council adopts a Compensation Plan for the Key and Management Group in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %), but not less than nine percent (9 %), this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it applies to the Key and Management Group pursuant to the Compensation Plan and for the same duration. In no event shall Employee's contribution towards Employee's retirement costs be less than nine percent (9 %). SECTION 5: 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 to either 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. Employee shall be entitled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of her duties. SECTION 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement Page 5 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, and with or without notice. 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 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from her employment with Employer, subject only to Employee's providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. SECTION 7: 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 affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and If Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee a lump sum severance benefit equal to six (6) months of her then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, Including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, Page 6 stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 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. Repeated failure to cant' out a directive or directives of the City Council made by the City Council as a body; and 6. Any 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. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. Page 7 E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work A. Employee shall devote her full energies, interest, abilities and productive time to the performance of this Agreement and utilize her 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 also 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 classed 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 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 City Hall, Monday through Friday during normal business hours, subject to paragraph B of this Section, below. B. Employee is authorized to work the 9180 schedule as defined in Section 2(RRx1) of the Employee Policy Manual and referred to in Miscellaneous Section (D) of the Compensation Plan. SECTION 9: Confidentiality and Non - Disparagement A. Employee acknowledges that in the course of her 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 Page 8 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 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. 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 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with her duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, 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 there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Page 9 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 Assembly Bill 1344 (Stats. 2011, ch. 692) adding Article 2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of Division 2 of Title 5 of the Govemment 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 12: 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 13: 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 Manager 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: Leilani I. Brown at the home address then shown in Employer's files Page 10 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 as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: 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 during the life of the 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 or her 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 her employment is, and will continue to be, at the will of the City Council. 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. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of Califomia 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 Page 11 circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. 'rhe City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that she has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of, legal advice with respect to the terms and provisions of this Agreement. [Signatures on Next Page.] Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE A Municipal Corporation By: By: Nancy Gardner, Mayor Leilani I. Brown APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By. o - C- /V Aaron C. Harp, City Attorney Date: I d 1 3 I I I �- ATTEST: M Lillian Harris Deputy City Clerk Date: Page 13 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between LEILANI BROWN ( "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 she has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with her legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ( "Revocation Period "), she may revoke 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 paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to her through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether she signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to her as a result of her employment by Employer. 1. Recefat of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to her, including salary, accrued benefit balances and reimbursed expenses ( "Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement dated March _ 2011, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ( "Severance "). Employee acknowledges that the Severance is in excess of all amounts due and owing her as a result of her employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby EXHIBIT A — Page 1 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 her employment with Employer which she 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. 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 she does not know or suspect to exist in her favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover her /its reasonable attorneys' fees and costs. [Signatures on Next Page.] EXHIBIT A — Page 2 Dated .20— CITY OF NEWPORT BEACH Dated: .20. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: Aaron C. Harp, City Attorney Date: ATTEST: By: Lillian Hams Deputy City Clerk Date: M i%'-l. .1 EXHIBIT A — Page 3 ATTACHMENT 2 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement ") is made effective as of November _, 2012 L "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 DAVID KIFF ( "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 as it is now being conducted under the statutes of the State of Califomia and the Charter of City. B. Employee has been continuously employed by City as City Manager since September 12, 2009. Employee is currently employed under an Employment Agreement dated April 12, 2011 ( "Employment Agreement"). The Employment Agreement was subsequently amended pursuant to that certain Amendment No. One to Employment Agreement Between the City of Newport Beach and David Kiff dated September 27, 2011 ( "Amendment One "). C. The Parties mutually agree that they intend for this Agreement.to supersede the Employment Agreement and Amendment One, and that upon execution of this Agreement, the Employment Agreement and Amendment One shall have no force or effect. Page 1 N�m ... .. _ - Page 1 ED. 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. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Tenn and Notice of Non - Renewal This Agreement shall be for an indefinite term, subject to termination as provided for in this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Manager 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 descrlption(s) and state codes, as they currently or may in the future exist. _Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employees a •� .hetf an annual base salary at the rate of $231.7502a;M.00 (Two Hundred Thirty- OneTwenht Five Thousand Seven Hundred Fifty Dollars ): and (ii) a one -time merit payment in the amount of $25.96 (Twenty -Five Dollars Ninety -Six Cents) for each paid work day from Page 2 January 1. 2012 to the Effective Date of this Agreement, subject to deduction 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 ( "Executive Management Employees "). Employer shall also deduct sums Employee Is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer, by the City Council, and Employee may set mutually - agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the Initial Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and his leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. Page 3 B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 25 (twenty-five) days per calendar year. His maximum accrual Is limited to four hundred (400) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to forty (40) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly Provided herein. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs, such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available under the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000.00). F. Automobile Allowance. Employee's duties require him to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 per month as an automobile allowance so that Employee may respond to these demands of City business. Page 4 G. Phone Allowance. As of the date of this EmpleymeRt AgFee ment;-4pe-4Gty se. That shall time untill suGh time as the City moves to a PhORe allewanGe. At that , Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. Amendment. Employee's benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. PERS. Pursuant to a separate agreement, miscellaneous (non - safety) members have agreed to have 3.42% of the employer retirement costs added to the employee's rate pursuant to California Government Code Section 20516. The Parties agree that Employee shall pay a total of nine percent (9 %) of the Employee's retirement costs (3.42% employer cost sharing f ER side"D and 5.58% employee nonnal member contribution [EE side") on a pre -tax basis pursuant to IRS Code Section 414(h)(2). In the event the City Council adopts a Compensation Plan in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %), but not less than nine percent (9 %). that set forth herein. this Agreement shall be deemed amended and Employee will be subiect to the same formula or percentage contribution as it applied to the Key and Management Group covered under the Compensation Plan and for the same duration. In no event shall Employee's contribution towards Employee's retirement be less than nine percent (9 %).€ffpleyer -shah make no Gentribdti rernent essts new-behalf of Employee. Employee shall, in addition to making the full Empleyee Gentdbutlen tewaFd Employee's retiFement Gaeta (eight peFeent (8%) of Empl-.--.- o EMPIGYBF , 8 Page 5 SECTION 5: 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 to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employers 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 Employers normal requirements and must be submitted within time limits established by Employer. B. Employer agrees to budget and pay for professional dues, membership and subscriptions of Employee necessary for continuation and participation in the International City/County Management Association (ICMA), Cal -ICMA, the California City Managers Foundation (CCMF), and state and national League of Cities and such other organizations as Employer and Employee may agree from time to time. Employer also agrees to a the cost of a corporate surety bond as contemplated by section 503 of the City Charter. C. Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and participation in meetings, institutes, training programs, conferences, conventions and similar gatherings that support leadership development and the advancement of Employer and Employee's mutually agreed upon goals, and which are related to Employee's duties or Employers 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, coach -class 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. D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C above, are exclusive of reasonable expenses related to events, participation in Page 6 organizations, or attendance at events or meetings on behalf -of the City as required by the City Council. 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 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. 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, and with or without notice. 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 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. 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's providing forty-five (45) calendar days prior written notice to Employer of the effective date of his resignation. SECTION 7: 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 affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke-, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee a lump sum severance benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical Page 7 benefits as provided under the Compensation Plan beginning on the effective date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, Including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 4-er-5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 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 involvina an "abuse of office or position," as that term is defined in Government Code section 53243.4: 34. Willful abandonment of duties; 45. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and 66. Any 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. Page 9 C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. 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. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employers 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 also 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 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 City Hall, Monday through Friday during normal business hours. SECTION 9: 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 Page 9 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 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. 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 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, 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 Page 10 employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that 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 Assembly Bill 1344 (Stats. 2011. ch. 692) adding Article 2.6 (commencing with Section 53243). of Chapter 2 of Part 1 of Division 2 of Title 5 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 Ernplovee: (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 12: Other Terns 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 13: 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 3300 Newport Blvd, PO Box 1768 Newport Beach, California 92658 -8915 Page 11 (2) EMPLOYEE: David Kiff at the home address then shown in Employer's files 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 as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: 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 during the life of the 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 Council. 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. 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. Page 12 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 or Municipal Code. _The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. 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. Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: Nancy Gardner, Mayor Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: Aaron C. Harp, City Attorney Date: ATTEST: By: Lillian Hanisei{aRi-Bfewn, De u City Clerk Date: EMPLOYEE By: David Kiff Date: Page 14 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between DAVID KIFF ( "Employee ") and CITY OF NEWPORT BEACH ("e=mployer"), 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 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 the signing of this Agreement ( "Revocation Period "), he may revoke 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 paragraph 1 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. 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 paragraph 2 of this Agreement Is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. 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 ( "Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement effective December 22, 2010, less applicable deductions, and shall provide the months of medical benefits as EXHIBIT A — Page provided in that same Section 7 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. 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. 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. EXHIBIT A — Page 2 4.- Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing parry shall be entitled to recover hislits reasonable attomeys' fees and costs. Dated 20_ CITY OF NEWPORT BEACH Dated: 20_ APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE M Aaron C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk Date: DAVID KIFF EXHIBIT A — Page 3 ATTACHMENT 3 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement ") is dated November _, 2012 ( "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 LEILANI I. BROWN ( "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 Callfomia with the power to carry on its business as it is now being conducted under the statutes of the State of Caldomia and the Charter of City. B. Employee has been continuously employed by City as City Clerk under an Employment Agreement effective from November 22, 2008 through November 22, 2010 ( "Initial Employment Agreement "), that certain First Amended Employment Agreement dated March 9, 2010 ( "First Amendment") and, most recently, an Employment Agreement dated April 12, 2011 (Second Employment Agreement "). C. The Parties mutually agree that they intend for this Agreement to supersede the Initial Employment Agreement, First Amendment, and Second Employment Agreement, and that upon execution of this Agreement, the Initial Employment Agreement, First Amendment and Second Employment Agreement shall have no force or effect. D. 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. Page 1 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non - Renewal This Agreement shall be for an indefinite term, subject to termination as provided for in this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Clerk 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. _Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee: (i) an annual base salary of $123.800 (One Hundred Twenty -Three Thousand Eight Hundred Dollars): and (ii) a one -time merit payment in the amount of $49.89 (Forty -Nine Dollars and Eighty -Nine Cents) for each paid work day from November 21. 2011 to the Effective Date of this Agreement at the Fate of an aRAUal base salaFy ef $110,829.82 (One , subject to deduction 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 ( "Executive Management Employees "). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs Page 2 described in Section 4 of this Agreement. The annual base salary of Employee shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer, by the City Council, and Employee shall promptly set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in her employment service between the end of the Initial Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 27,30 days (8-.Mk.-23 -hours per Pay Period) per calendar year. Employee's Maximum Allowable Balance (hours) shall be four hundred (400) hours on and after the Effective Date of this Agreement. The Parties agree that if Employee has a Flex Leave balance of over 400 hours upon the Effective Date of this Agreement. Employee shall have thirty (30) calendar days from the Effective Date of this Agreement to use or sellback any Flex Leave in excess of 400 hours in accordance with the Leave Page 3 Sellback Provisions set forth in the Compensation Plan ( "Initial-Sellback "). An Initial Sellback by Employee of Flex Leave hours shall be paid by City at Employee's hourly rate of Pay in effect Prior to the Effective Date of this Agreement. -"I Empleyee reaGhes fifteen years ei eentin upAil DeGeFnbBF 46, 2012. On DeGerAbeF 16, 2012, ErApleyee R.4.11 have sewed Gempensatoon Plan at the rate of 30 days peF ealendai: ye r-(9.23 hows peF imam- assraal- Fate -from 7-28 80 hAl IFS —After the Initial Sellback. 41he right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Effective January 1. 2013, Employee shall only be entitled to fortyeightlr (840) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly Provided herein. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to non - public safety management employees of the City, as provided in the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000.00). Page 4 F. Phone Allowance. As of the elate of this Ag with Internet- sewise -ie- anew - Employee -te that tine, Employee shall be entitled to the same phone allowance as provided to any Executive Management member. G Amendment. Employees benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. F-H. PERS. Pursuant to a separate agreement. miscellaneous (non- safety) members have agreed to have 3.42% of the employer retirement cost added to the employee's rate oursuant to California Government Code Section 20516. The Parties agree that Employee shall pay a total of nine percent (9 %) of the Employee's retirement costs (3.42% employer cost sharing rER sidel and 5.58% employee normal member contribution ["EE side"11 on a pre -tax basis pursuant to IRS Code Section 414(h)(2). In the event the City Council adopts a Compensation Plan for the Key and Management Group in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %). but not less than nine percent (9 %). this Agreement shall be deemed amended and Employee will be subiect to the same formula or percentage contribution as it applies to the Key and Management Group Pursuant to the Compensation Plan and for the same duration. In no event shall Employee's contribution towards Employee's retirement costs be less than nine percent (9 %). SECTION 5: 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 to either pay such expenses in advance or to reimburse the Page 5 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. Employee shall be entitled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of her duties. SECTION 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. _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, and with or without notice. 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 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from her employment with Employer, subject only to Employee's providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. SECTION 7: 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 affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay Page 6 and provide Employee a lump sum severance benefit equal to six (6) months of her then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 4eF5 or 6, Immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 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 officef or position." as that term is defined in Government Code section 53243.4: 34. Willful abandonment of duties; 45. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and E§. Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its Page 7 organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. 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. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work A. Employee shall devote her full energies, interest, abilities and productive time to the performance of this Agreement and utilize her 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 also 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 forth of compensation for overtime. In recognition of the significant time Employee will need to devote outside 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 City Hall, Monday through Friday during normal business hours, subject to paragraph B of this Section, below. Page 8 B. Employee is authorized to work the 9/80 schedule as defined in Section 2 RRQQ)(1) of the Employee Policy Manual and referred to in Miscellaneous Section (DE) of the Compensation Plan. SECTION 9: Confidentiality and Non - Disparagement A. Employee acknowledges that in the course of her 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 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. 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 tennination 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 9 shall survive the termination of this Agreement. Page 9 SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially Interferes with her duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, 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 there is a conflict of interest between Employer and Employee in such a case so that 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 Assembly Bill 1344 (Stats. 2011, ch. 692) addina Article 2.6 (commencing with Section 53243). of Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code. Employee shall be reauired. If convicted of a crime Involvina 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 12: 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. Page 10 SECTION 13: 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 Go City 61e*Manager 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: Leilani I. Brown at the home address then shown in Employer's files 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 as of the date of deposit of such written notice In the course of transmission in the United States Postal Service as provided by law. SECTION 14: 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 during the life of the 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 or her 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 her employment is, and will continue to be, at the will of the City Council. Page 11 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. 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 or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that she has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. _Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of, legal advice with respect to the terms and provisions of this Agreement. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: Nancy Gardner, Mayor Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: Aaron C. Harp, City Attorney Date: ATTEST: Lillian Hams Deputy City Clerk Date: EMPLOYEE By: Leilani I. Brown Date: Page 13 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between LEILANI BROWN ( "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 she has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with her legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ( "Revocation Period "), she may revoke 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 paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to her through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether she signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to her as a result of her employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to her, including salary, accrued benefit balances and reimbursed expenses ( "Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement dated March _, 2011, less applicable deductions, and shall provide the months of medical benefits as provided In that same Section 7 ( "Severance "). Employee acknowledges that the Severance is in excess of all amounts due and owing her as a result of her employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby EXHIBIT A — Page 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 her employment with Employer which she 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 Attomeys General Act of 2004, the California Moore - Brown- Roberti Family Rights Act, the California Unruh Civil Rights Act, the Califomia 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. 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 R 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 she does not know or suspect to exist in her favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing parry shall be entitled to recover her /its reasonable attorneys' fees and costs. [Signatures on Next Page.] EXHIBIT A — Page 2 Dated .20— CITY OF NEWPORT BEACH Dated: , 20_ APPROVED AS TO FORM: CITY ATTORNEYS OFFICE A Aaron C. Harp, City Attorney Date: ATTEST: By: Lillian Harris Deputy City Clerk Date: Leilani Brown EXHIBIT A — Page 3 A CITY OF NEWPORT BEA DATE: November 13, 2012 TO: Leilani Brown, City Clerk FROM: Aaron C. Harp, City Attorney MATTER: City Council Agenda Item No. 16 SUBJECT: Revised Recommendation For tonight's City Council meeting, with regards to Agenda Item No. 16, we have prepared separate resolutions for the City Council to approve the City Manager's and City Clerk's Amended and Restated Employment Agreements. With this change, we are proposing that the recommendation contained in the staff report be replaced with the following: RECOMMENDATION: 1. Adopt Resolution No. 2012 -_ (Attachment No. 1) approving and authorizing the Mayor and City Clerk to execute the attached Amended and Restated Employment Agreement for the City Manager. 2. Adopt Resolution No. 2012 -_ (Attachment No. 2) approving and authorizing the Mayor and Deputy City Clerk to execute the attached Amended and Restated Employment Agreement for the City Clerk. [A09- 00619] -City Clerk from ACH 11.13.12 re revised recommendation to staff report A EIAE I M I. MI., RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT FOR THE CITY MANAGER WHEREAS, Mr. David Kiff was first appointed by the City of Newport Beach as City Manager under an Employment Agreement effective from September 12, 2009 through September 11, 2011 ( "Initial Employment Agreement "); and WHEREAS, on September 28, 2010, Mr. Kiff's Initial Employment Agreement was subsequently amended pursuant to that certain Amendment No. One to Employment Agreement between the City of Newport Beach and Mr. Kiff; and WHEREAS, on April 12, 2011, Mr. Kiff and the City entered into an Amended and Restated Employment Agreement that superseded the Initial Employment Agreement and the Amendment No. One ( "Employment Agreement "); and WHEREAS, on September 27, 2011, Mr. Kiff's Employment Agreement was amended pursuant to that certain Amendment No. One to the Employment Agreement between the City of Newport Beach and Mr. Kiff; and WHEREAS, Mr. Kiff continues to serve as City Manager based upon a City Council finding that Mr. Kiff is the best qualified individual for this position and on the basis of his executive and administrative qualifications, with special reference to his experience in, and his knowledge of, accepted practice in respect to the duties of the office as set forth in the City's Charter; and WHEREAS, City Charter Section 503 requires the City Council to establish the City Manager's compensation by ordinance or resolution; and WHEREAS, Mr. Kiff and the City desire to enter into an Amended and Restated Employment Agreement to increase Mr. Kiff's current compensation and provide a one- time merit payment. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: 1. The City Council hereby approves and authorizes the Mayor and City Clerk to execute the Amended and Restated Employment Agreement with Mr. David Kiff attached hereto as Exhibit "A" and incorporated herein by reference. -1- 2. The City Council finds 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. This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this _ day of November, 2012. Nancy Gardner, Mayor ATTEST: Leilani Brown, City Clerk Attachment: Exhibit "A ": Amended and Restated Employment Agreement for Dave Kiff -2- �� it �;� =�1 �� ' _�\ AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement") is made effective as of November _, 2012 (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 DAVID KIFF ("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 Califomia with the power to cant' on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Employee has been continuously employed by City as City Manager since September 12, 2009. Employee is currently employed under an Employment Agreement dated April 12, 2011 ( "Employment Agreement "). The Employment Agreement was subsequently amended pursuant to that certain Amendment No. One to Employment Agreement Between the City of Newport Beach and David Ki f dated September 27, 2011 ( °Amendment One"). C. The Parties mutually agree that they intend for this Agreement to supersede the Employment Agreement and Amendment One, and that upon execution of this Agreement, the Employment Agreement and Amendment One shall have no force or effect. D. 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. Page i NOUN, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non - Renewal This Agreement shall be for an Indefinite term, subject to termination as provided for in this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Manager 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 descriptions) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not Inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee: (I) an annual base salary at the rate of $231,750.00 (Two Hundred Thirty-One Thousand Seven Hundred Fifty Dollars); and (ii) a one -time merit payment in the amount of $25.96 (Twenty-Five Dollars and Ninety -Six Cents) for each paid work day from January 1, 2012 to the Effective Date of this Agreement, subject to deduction 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 ( "Executive Management Employees "). Employer shall also deduct sums Employee Is obligated to pay because of participation In plans or programs described in Section 4 of this Agreement. The annual base salary of Page 2 Employee shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains In effect. C. Employee's compensation as discussed under this Section Is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Emplovee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the Initial Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and his leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City s Key and Management Compensation Plan, Executive Management category ( °Compensation Plan "), at the current rate of 25 (twenty-five) days per calendar year. His maximum accrual is limited to four hundred (400) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to forty (40) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of Page 3 : each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly provided herein, Employee shall receive the same health Insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available under the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000.00). F. - Automobile Allowance. Employee's duties require him to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 per month as an automobile allowance so that Employee may respond to these demands of City business. G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. Amendment. Employee's benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. I. PERS. Pursuant to a separate agreement, miscellaneous (non - safety) members have agreed to have 3.42% of the employer retirement costs added to the employee's rate pursuant to California Government Code Section 20516. The Parties agree that Employee shall pay a total of nine percent (9 %) of the Page 4 • Employee's retirement costs (3.42% employer cost sharing rER side"]) and 5.56% employee normal member contribution rEE side"]) on a pre -tax basis pursuant to IRS Code Section 414(h)(2). In the event the City Council adopts a Compensation Plan in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %), but not less than nine percent (9 %), that set forth herein, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it applied to the Key and Management Group covered under the Compensation Plan and for-the same duration. In no event shall Employee's contribution towards Employee's retirement be less than nine percent (9 %). SECTION 5: 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 to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are Incurred and submitted according to Employers 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 Employers normal requirements and must be submitted within time limits established by Employer. B. Employer agrees to budget and pay for professional dues, membership and subscriptions of Employee necessary for continuation and participation in the Intemational City /County Management Association (ICMA), CaMCMA, the Calffomla City Managers Foundation (CCMF), and state and national League of Cities and such other organizations as Employer and Employee may agree from time to time. Employer also agrees to pay the cost of a corporate surety bond as contemplated by section 503 of the City Charter, C. Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and .participation in meetings, Institutes, training programs, Page 5 conferences, conventions and similar gatherings that. support leadership development and the 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, coach -class 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. D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C 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 Council. 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 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. 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, and with or without notice. 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 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. 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 forty-five (45) calendar days prior written notice to Employer of the effective date of his resignation. Page 6 SECTION 7: 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 affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and if Employee signs, delivers to the City Council, and does' not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee a lump sum severance benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, Including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth In subpart 5 or 6, Immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's Independent judgment, Employee cures the identified reason or..reasons for Cause termination, Employee shall not be terminated therefor. As used In this Agreement, Cause shall mean any of the following: 9. Conviction of a felony; 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; Page 7 4. Willful abandonment of duties; 5. Repeated failure to, carry out a directive or directives of the City Council made by the City Council as a body; and 6. Any 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. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. 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. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's obligations and Hours of Work Employee shall devote his full energies, Interest, 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 also 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 forth of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Page 8 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 City Hall, Monday through Friday during normal business hours. SECTION 9: 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 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. 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 9 shall survive the termination of this Agreement. Page 9 SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the Califomia Govemment.Code, 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 there is a conflict of interest between Employer and Employee in such a case so that 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 Assembly Bill 1344 (Slats. 2011, ch. 692) adding Article 2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of Division 2 of Title 5 of the Govemment 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 12: Other Terms and Conditions of Employment Employer may fix other tenns and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terns and conditions are not Inconsistent with or in conflict with the provisions of this Agreement or applicable law. Page 10 SECTION 13: 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 clo City Clerk 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: David Klff at the home address then shown in Employees files 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 as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: 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 during the life of the 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 Council. Page 11 ..B.. Binding Effect:f This Agreement shall be binding on the Employer and the ..Employee as well as their heirs, assigns, executors, . personal representatives .. and successors in interest. 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. Severabiiity: 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 or Municipal Code. The City personnel ordinances, resolutions, rules and policles shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City. Charter or the Municipal Code shall prevail over this Agreement. 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. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE A Municipal Corporation 7r Nancy Gardner, Mayor David KiK Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: A �' C. Aaron C. Harp, City Attorney Date: 16 / 3 I / I Z. ATTEST: M Lillian Harris, Deputy City Clerk Date: Page 13 Date: GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between DAVID KIFF ( "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 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 the signing of this Agreement ( "Revocation Period°), he may revoke 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 paragraph 1 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. 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 paragraph 2 of this Agreement Is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. 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 ("Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for In Section 7 of the Employment Agreement effective December 22, 2010, less applicable deductions, and shall provide the months of medical benefits as EXHIBIT A —Page 1 provided in that same Section 7 ( "Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. 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 Tale 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. 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. EXHIBIT A — Page 2 1.4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover histits reasonable attomeys' fees and costs. Dated 20_ CITY OF NEWPORT BEACH Dated: . 20 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Bv: Aaron C. Harp, City Attorney Date: ATTEST: Bv: Leilanl Brown, City Clerk Date: By: DAVID KIFF EXHIBIT A — Page 3 n� `t` I /`�` � � .. _ _ '�i �� � i t l r '�'� � ` 1 i n �� � `Y its — � ,�n �� ��/ U �.� Y. _.l i i I \� — \. - RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT FOR THE CITY CLERK WHEREAS, Ms. Leilani I. Brown was first appointed by the City of Newport Beach as City Clerk under an Employment Agreement effective from November 22, 2008 through November 22, 2010 ( "Initial Employment Agreement "); and WHEREAS, Ms. Brown was appointed, and continues to serve, as City Clerk based upon a City Council finding that Ms. Brown is the best qualified individual for this position on the basis of her executive and administrative qualifications, with special reference to her experience in, and her knowledge of, accepted practice in respect to the duties of the office as set forth in the City's Charter; and WHEREAS, on March 9, 2010, Ms. Brown's Initial Employment Agreement was subsequently amended pursuant to that certain First Amended Employment Agreement with Leilani Brown: and WHEREAS, on April 12, 2011, Ms. Brown and the City entered into an Amended and Restated Employment Agreement that superseded the Initial Employment Agreement and the March 9t Amendment ( "Agreement "); and WHEREAS, Ms. Brown and the City desire to enter into an Amended and Restated Employment Agreement to increase Ms. Brown's current compensation, provide a one- time merit payment and reduce the benefits provided to a level that is consistent with those benefits received by the City Manager and City Attorney. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: 1. The City Council hereby approves and authorizes the Mayor and Deputy City Clerk to execute the Amended and Restated Employment Agreement with Leilani Brown attached hereto as Exhibit "A" and incorporated herein by reference 2. The City Council finds this action is not subject to the California Environmental Quality Act ( "CEQX) 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 -1- has no potential for resulting in physical change to the environment, directly or indirectly. 3. This resolution shall take effect immediately upon its adoption by the City Council, and the Deputy City Clerk shall certify the vote adopting this resolution. ADOPTED this _ day of November, 2012. Nancy Gardner, Mayor ATTEST: Lillian Harris, Deputy City Clerk Attachment: Exhibit "A ": Amended and Restated Employment Agreement for Leilani Brown -2- mom r �\ iL 1� ��� W �� ��) r �1 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( °Agreement ") is dated November—, 2012, (the "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 LEILANI I. BROWN ( "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 as it is now being conducted under the statutes of the State of California and the Charter of City. B. Employee has been continuously employed by City as City Clerk under an Employment Agreement effective from November 22, 2008 through November 22, 2010 ( "Initial Employment Agreement"), that certain First Amended Employment Agreement dated March 9, 2010 ("First Amendment°) and, most recently, an Employment Agreement dated April 12, 2011 (Second Employment Agreement"). C. The Parties mutually agree that they Intend for this Agreement to supersede the Initial Employment Agreement, First Amendment, and Second Employment Agreement, and that upon execution of this Agreement, the Initial Employment Agreement, First Amendment and Second Employment Agreement shall have no force or effect. D. 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. Page 1 .. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non - Renewal This Agreement shall be for an indefinite term, subject to termination as provided for in this Agreement. SECTION 2: Duties and Authoriflr Employer agrees to employ Employee as City Clerk 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. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. . Employer agrees to pay Employee: (1) an annual base salary of $123,800 JOne Hundred Twenty-Three Thousand Eight Hundred Dollars); and (ii) a one -time merit payment In the amount of $49.89 (f=orty -Nine Dollars and Eighty-Nine Cents) for each paid work day from November 21, 2011 to the Effective Date of this Agreement, subject to deduction 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 ("Executive Management Employees "). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee shall be established by resolution of the City Council. This Agreement Page 2 shall be deemed amended. whenever the City Council adopts' a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. S. Employer, by the City Council, and Employee shall promptly set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period In which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not -tied to the compensation of any other City employee or group of City employees, except as expressly provided In this Agreement. SECTRON 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in her employment service between the end of the Initial Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall tarty over, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement., B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan"), at the current rate of 30 days (9.23 hours per Pay Period) per calendar year. Employee's Maximum Allowable Balance (hours) shall be four hundred (400) hours on and after the Effective Date of this Agreement. The Parties agree that If Employee has a Flex Leave balance of over 400 hours upon the Effective Date of this Agreement, Employee shall have thirty . (30) calendar days from the Effective Date of this Agreement to use or sellback any Flex Leave in excess of 400 hours in accordance with the Leave Sellback provisions set forth In the Compensation Plan ("Initial Sellback "). Any Initial Sellback by Employee of Flex Leave hours shall be paid by City at Employee's hourly rate of pay in effect Page 3 prior to the Effective Date of this Agreement. After the Initial Sellback, the right to sell back accumulated Flex Leave shall be consistent- with the Compensation Plan. C. Administrative Leave. Effective January 1, 2013, Employee shall only be entitled to forty (40) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there Is no right to sell back any accumulated Administrative Leave. .D. Additional Benefits. Except as expressly provided herein; Employee shall receive the same health Insurance and retirement benefits, and be entitled to. participate In plans and programs such as short term and long term disability plans, Iffe Insurance plans, and deferred compensation plans, as are available to non - public safety management employees of the City, as provided in the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000:00). F. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. G. Amendment. Employees benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. H. PERS. Pursuant to a separate agreement, miscellaneous (non - safety) members have agreed to have 3.42% of the employer retirement cost added to the Page 4 employee's rate pursuant to California Government Code Section 20516. The Parties agree-that Employee shall pay a total of nine percent (9 %) of the Employee's retirement costs (3.42% employer cost sharing [ER side] and 5.58% employee normal member contribution ["EE side°]) on a pre -tax basis pursuant to IRS Code Section 414(h)(2). In the event the City Council adopts a Compensation Plan for the Key and Management Group in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %), but not less than nine percent (9 %), this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it applies to the Key and Management Group pursuant to the Compensation Plan and for the same duration. ln�no event shall Employee's contribution towards Employee's retirement costs be less than nine percent (9 %). SECTION 5: 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 to either 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. Employee shall be entitled to attend a reasonable number of League of Cities and other similar-conferences relevant to the performance, of her duties: SECTION 6: At -1W111 Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement Page 5 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, and with or without notice. 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 7,' Severance and Benefit Payoff at Termination, and General Release Agreement, below. B. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from her employment with Employer, subject only to Employee's providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. SECTUON 7: Severance and iBenefit Payoff at Termination. and General Release 6greement A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of a. majority of the members of the City Council at a Regular Meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee a lump sum severance benefit equal to six (6) months of her then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, Including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, Page 6 stating the reason or reasons for the proposed termination, and providing. a thirty (30) day period for Employee to cure. if, in the City Councll's Independent judgment, Employee cures the .identified reason or reasons. for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 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. Repeated failure to cant' out a directive or directives of the City Council made by the City Council as a body; and 6. Any 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. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. Page 7 E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flax Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's ®blinations and Hours of Work A. Employee shall devote her full energies, interest, abilities and productive time to the performance of this Agreement and utilize her best efforts to promote Employers 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 also 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 forth of compensation for overtime. In recognition of the significant time Employee will need to devote outside 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 City Hall, Monday through Friday during normal business hours, subject to paragraph B of this Section, below. B. Employee is authorized to work the 9180 schedule as defined in Section 2(RRx1) of the Employee Policy Manual and referred to In Miscellaneous Section (D) of the Compensation Plan. SECTION 9: Confidentiality and Non- Dismaraaement A. Employee acknowledges that in the course of her employment contemplated herein, Empioyee 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 Page 8 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 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. 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 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which Is actually or potentially In conflict with or inimical to, or which materially interferes with her duties and responsibilities to Employer.. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employers 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 there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Page 9 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 Assembly Bill 1344 (Stats. 2011, ch. 692) adding Article 2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of Division 2 of Title 5 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 12: Other Terms and Conditions of Emoiovment 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 13: 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% City Manager 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658-8915 (2) EMPLOYEE: Lellani I. Brown at the home address then shown in Employer's files Page 10 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 as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 94: 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 vold. 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. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his or her employment Is subject to Employers 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 her employment is, and will continue to be, at the will of the City Council. 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. 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 Page I I circumstances, it shall• nevertheless remain in full force and effect in all other circumstances. E. Conflict with City. Charter or Municipal Code. 'rhe City personnel ordinances, resolutions, rules and policies shall apply to Employee In the same manner as .applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that she has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of, legal advice with respect to the terns and provisions of this Agreement. [Signatures on Next Page.] Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE A Municipal Corporation By: By: Nancy Gardner, Mayor Leilani I. Brown Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: ,A , C Y y� Aaron C. Harp, City Attorney Date: ID /3 1 t j L ATTEST: Bv: Lillian Harris Deputy City Clerk Page 13 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between LEILANI BROWN ( "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 she has twenty -one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with her legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ( "Revocation Period "), she may revoke 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 paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to her through the date of employment termination. Employee also acknowledges that Employer has made this . Salary Payment without regard to whether she signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced In paragraph 2 of this Agreement is in excess of all amounts that are due and owing to her as a result of her employment by Employer. 1. Receint of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to her, including salary, accrued benefit balances and reimbursed expenses ( "Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement dated March 2011, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ( "Severance"). Employee acknowledges that the Severance is In excess of all amounts due and owing her as a result of her employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby EXHIBIT A —Page 1 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 her employment with Employer which she 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. 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 she does not know or suspect to exist in. her favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover hertiits reasonable attomeys' fees and costs. [Signatures on Next Page.] EXHIBIT A — Page 2 Dated . , 2Q_ CITY OF NEWPORT BEACH Dated: .20- APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp, City Attorney Date: ATTEST: By: Lillian Harris Deputy City Clerk Date: Leilani Brown EXHIBIT A — Page 3