HomeMy WebLinkAbout17 - Amended and Restated Contracts for City Manager, City Attorney and City Clerk17-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
February 23, 2016
Agenda Item No. 17
ABSTRACT:
The City of Newport Beach Charter, Articles V and VI, establishes the powers, duties
and responsibilities of the City Council’s three appointed positions; City Manager, City
Attorney, and City Clerk, with the terms and conditions of their employment defined by
their respective Employment Agreements. From time to time, the City Council and
incumbents may renegotiate terms of employment, including adjustments to
compensation and/or benefits. During the Closed Sessions on November 10, 2015,
November 24, 2015, January 12, 2016, and January 26, 2016, the City Council
conducted performance reviews for the City Manager, City Attorney and City Clerk. The
terms and conditions of the appointees’ employment were further discussed during the
February 9, 2016 Closed Session and City Council considered compensation and/or
benefit changes.
RECOMMENDATION:
a) Adopt Resolution No. 2016-35,A Resolution of the City Council of the City of
Newport Beach, California, Adopting Salary Ranges for the City Attorney and
City Clerk;
b) Approve and authorize the Mayor to execute the Fourth Amended and Restated
Employment Agreement between the City of Newport Beach and City Manager
Dave Kiff, subject to the terms and conditions approved by the City Council;
c) Approve and authorize the Mayor to execute the Third Amended and Restated
Employment Agreement between the City of Newport Beach and City Attorney
TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM:Tony Petros, Designated Council Negotiator
PREPARED BY:Barbara J. Salvini, Human Resources Director, with R. Craig Scott,
Outside Legal Counsel (City Attorney Contract)
PHONE:949-644-3259
TITLE:Amended and Restated Contracts for City Manager, City Attorney
and City Clerk
Employment Agreements with Council Appointees
February 23, 2016
Page 2
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Aaron Harp, subject to the terms and conditions approved by the City Council;
and
d) Approve and authorize the Mayor to execute the Third Amended and Restated
Employment Agreement between the City of Newport Beach and City Clerk
Leilani Brown, subject to the terms and conditions approved by the City Council.
FUNDING REQUIREMENTS:
A comprehensive estimate of the costs associated with the Amended and Restated
Employment Agreements is provided with this report (Attachment H). For FY2015-16,
the cost to implement the Amended and Restated Employment Agreements for the City
Manager, City Attorney and City Clerk for FY2015-2016 is estimated to be $20,228.95.
The current adopted budget includes sufficient funding for the Agreements.
DISCUSSION:
City Manager, City Attorney, and City Clerk Employment Agreements Overview
Dave Kiff was appointed as City Manager by the City Council on September 12, 2009.
Since his appointment, the terms and conditions of his employment have been revisited
and his original Employment Agreement has been amended accordingly. The
employment agreement changes called for increased employee retirement
contributions, some salary increases, leave benefits adjustments and the incorporation
of public employee compensation regulations. Mr. Kiff’s current employment agreement
is set forth in a Third Amended and Restated Employment Agreement which was
approved by the City Council on November 25, 2014 and provided for an approximate
6% salary increase along with a requirement for Mr. Kiff to increase his retirement
contribution to 12.35%. The proposed Fourth Amended and Restated Agreement
(Attachment B) provides for an 8% salary increase effective February 23, 2016, an
additional employee contribution towards the retirement benefit for a total of 13%, and a
one-time merit payment of $75.69 per paid work day beginning the pay period including
November 25, 2015, to the date of adoption.
Aaron Harp was appointed as the City Attorney by the City Council on September 6,
2011. His employment is currently governed by a Second Amended and Restated
Employment Agreement which was approved by the City Council on November 25,
2014, and provided for an approximate 4% salary increase. As with Mr. Kiff’s
agreement, Mr. Harp’s agreement called for an increased employee retirement
contribution to 12.35%. The proposed Third Amended and Restated Employment
Agreement (Attachment D) calls for a 2.5% salary increase effective February 23, 2016,
Employment Agreements with Council Appointees
February 23, 2016
Page 3
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with a one-time merit payment of $22.31 per paid work day from the beginning of the
pay period including November 25, 2015, to the date of adoption. Employee retirement
contributions will increase to 13.0% over the term of the proposed agreement.
Leilani Brown has served as the City Clerk since November 22, 2008. She received an
approximate 3% salary increase pursuant to the terms of her current agreement
(Second Amended and Restated Employment Agreement) and was required to
contribute a total of 12.35% towards her retirement. Her proposed Third Amended and
Restated Employment Agreement (Attachment F) provides for a 2.5% salary increase
effective February 23, 2016, with a one-time merit payment of $13.65 per paid work day
from the beginning of the pay period including November 25, 2015, to the date of
adoption. Additionally, the terms of the proposed amended and restated employment
agreement call for her to increase her contributions towards her retirement benefit to
13.0%
As noted above, and in recognition of the City Council’s stated goal of shared retirement
costs, the City Manager, City Clerk, and City Attorney currently contribute 12.35%
towards their retirement benefit. Each of the proposed amended and restated
employment agreements include a provision that requires their employee retirement
contributions to increase in the event the employee retirement contributions for Key and
Management Group employees increase. This language ensures the City Manager,
City Attorney and City Clerk mirror the employee retirement contributions made by other
non-safety management employees.
Certain benefits for the City Manager, City Attorney, and City Clerk, including cafeteria
allowances, paid leaves, disability, and life insurance are tied to the terms of the Key
and Management Compensation Plan, which was adopted by the City Council on
January 26, 2016. The language contained in the proposed amended and restated
agreements for the respective appointees does not alter any of the previously
established benefit relationships, with the exception of increasing the Administrative
Leave bank from 40 hours per calendar year to 80 hours per calendar year. This
increase provides the appointees with the same number of Administrative Leave hours
granted to other Key and Management Group employees. Administrative Leave does
not accrue from calendar year to calendar year and there is no right to sell back any
accumulated Administrative Leave.
Attached for consideration are the respective restated and amended employment
agreements for the City Manager, City Attorney and City Clerk (Attachments B – G).
Included with each copy is a redline version to reflect the changes in the contract from
the prior agreement.
Employment Agreements with Council Appointees
February 23, 2016
Page 4
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Under California Public Employees Retirement System (CalPERS) regulations,
reportable employee compensation must comply with, and be paid within, a publicly
available salary schedule which has been duly adopted by the governing body, (e.g. the
City Council). On November 13, 2012, the City Council established salary ranges for
the Executive group, including ranges for the City Manager, City Attorney, and City
Clerk. The salary ranges have not been adjusted since that time and remain as follows:
City Manager - $188,219 to $282,318 annually
City Attorney - $157,497 to $236,225 annually
City Clerk - $96,075 to $144,102 annually
The current salary ranges for the City Attorney and City Clerk do not provide sufficient
movement to accommodate the 2.5% increases. The proposed resolution (Attachment
A) would adjust the salary ranges of the City Attorney and City Clerk to accommodate
the 2.5% increases. If adopted, the salary range for City Attorney would become
$158,533.33 to $237,800.00 annually, and the range for the City Clerk would become
$97,033.33 to $145,550.00 annually.
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).
ATTACHMENTS:
Attachment A – Resolution No. 2016-___ Adopting Salary Ranges for the City Clerk
and City Attorney
Attachment B – Recommended Fourth Amended and Restated Employment
Agreement for the City Manager
Attachment C – Recommended Fourth Amended and Restated Employment
Agreement for the City Manager (Redline Version)
Employment Agreements with Council Appointees
February 23, 2016
Page 5
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Attachment D – Recommended Third Amended and Restated Employment
Agreement for the City Attorney
Attachment E – Recommended Third Amended and Restated Employment
Agreement for the City Attorney (Redline Version)
Attachment F – Recommended Third Amended and Restated Employment
Agreement for the City Clerk
Attachment G – Recommended Third Amended and Restated Employment
Agreement with the City Clerk (Redline Version)
Attachment H – Estimated Cost of Appointees Salary Increases
ATTACHMENT A
RESOLUTION NO. 2016 -____________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH ADOPTING SALARY RANGES FOR
THE CITY ATTORNEY AND CITY CLERK
WHEREAS, Newport Beach Municipal Code Section 2.28.010 authorizes the City
Council of the City of Newport Beach (“City”) to establish terms of employment, including
compensation and benefits, for City employees; and
WHEREAS, the City Council previously adopted Resolution No. 2012-100
establishing salary ranges for non-represented Executive Management employees,
including the City Attorney and City Clerk; and
WHEREAS, the City of Newport Beach desires to provide the City Attorney and City
Clerk a 2.5% base wage increase; and
WHEREAS, there is insufficient movement available from the current salaries for
the incumbent City Attorney and City Clerk to advance 2.5% in the salary range of their
respective positions; and
WHEREAS, in order to provide a base wage increase for the City Attorney and City
Clerk the salary ranges for both positions need to be increased; and
WHEREAS, the City Council of the City of Newport Beach desires to modify the
salary ranges for the City Attorney and City Clerk and establish salary ranges for City
Attorney, City Clerk and City Manager.
NOW, THEREFORE, the City Council of the City of Newport Beach does RESOLVE
as follows:
Section 1: The recitals provided above are true and correct and are incorporated
into the operative part of this resolution.
Section 2: The salary range for the City Attorney shall be $158,533.33 to
$237,800 annually.
Section 3: The salary range for the City Clerk shall be $97,033.33 to $145,550
annually.
Section 4: The salary range for the City Manager shall remain at $188,219 to
$282,318 annually.
Section 5: The effective date of this Resolution shall be February 23, 2016.
Section6: Any resolution or action in conflict herewith, whether by minute action or
resolution of the City Council heretofore approved, is hereby repealed.
17-6
Section 7: The City’s Salary Schedule shall be modified so as to be consistent with
this Resolution.
Section 8: If any section, subsection, sentence, clause or phrase of this resolution
is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this resolution. The City Council
hereby declares that it would have passed this resolution, and each section, subsection,
clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses and phrases be declared invalid or unconstitutional.
Section 9: The City Council finds the adoption of this resolution is not subject to the
California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of
the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has
no potential for resulting in physical change to the environment, directly or indirectly.
Section 10: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this ____ day of _________, 2016.
______________________
Diane B. Dixon
Mayor
ATTEST:
__________________________
Leilani I. Brown
City Clerk
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Page 1
FOURTH AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of February 23, 2016 (“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 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 a Third Amended and
Restated Employment Agreement dated November 25, 2014 (“Employment
Agreement”).
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement, and that upon execution of this Agreement, the
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.
ATTACHMENT B
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Page 2
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 become effective February 23, 2016 (“Effective Date”). Subject to
City’s right to terminate Employee’s employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
City’s election not to extend this Agreement shall not entitle Employee to severance
pursuant to Section 7 of 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 at the rate of an annual base salary of
$265,680.00 (TWO HUNDRED SIXTY-FIVE THOUSAND SIX HUNDRED AND
EIGHTY DOLLARS AND NO/100), 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
ATTACHMENT B
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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 is within the approved salary range adopted 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 also agrees to pay Employee a one-time merit payment of $75.69 per
paid work day from the date of adoption of this Agreement back to the beginning
of the Pay Period including November 25, 2015.
C. 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.
D. 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 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.
ATTACHMENT B
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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 9.69 hours per Pay Period.
Employee’s Maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with the
Compensation Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 80 (eighty) hours of Administrative
Leave. 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 $1,250 (one thousand two hundred fifty dollars).
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.
ATTACHMENT B
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G. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
H. Amendment of Benefits. 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 the terms of the Third Amended and Restated Employment
Agreement, Employee contributed 12.35% of compensation earnable towards
Employee’s retirement benefit. Effective the pay period that includes January 1,
2016, Employee shall contribute an additional .35% of compensation earnable for
a total employee contribution of 12.70% broken down as follows: 8.0% of the
required member contribution; and 2.42% and 2.28% as cost sharing in
accordance with Government Code sections 20516(a) and 20516(f) respectively.
Effective the pay period that includes January 1, 2017, Employee shall contribute
an additional .30% of compensation earnable for a total employee contribution of
13.00% broken down as follows: 8.0% of the required member contribution; and
2.42% and 2.58% as cost sharing in accordance with Government Code sections
20516(a) and 20516(f) respectively.
Also, the Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution. In the event the City Council
adopts a Compensation Plan in which retirement contributions for non-safety
members of the Key & Management Group exceeds 13.00%, this Agreement
shall be deemed amended and Employee will be subject to the same formula or
percentage contribution as it is applied to the non-safety members of the Key &
Management Group covered under the Compensation Plan and for the same
duration. In no event shall the Employee’s retirement contribution be less than
13.00%. Employee retirement contributions that are in addition to the normal
PERS Member Contribution shall be calculated on base pay, special pays, and
other pays normally reported as “PERSable” compensation, and will be made on
ATTACHMENT B
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a pre-tax basis through payroll deduction, to the extent allowable by the
Government Code.
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. 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 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,
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.
ATTACHMENT B
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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-WiII 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 (as defined below), 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.
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 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
ATTACHMENT B
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Employee a lump sum 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 (collectively
“Severance”).
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;
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
ATTACHMENT B
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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 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.
ATTACHMENT B
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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.
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.
ATTACHMENT B
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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 Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 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:
ATTACHMENT B
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(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
100 Civic Center Drive
Newport Beach, California 92660
(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. 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.
ATTACHMENT B
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Page 13
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.
(Signatures on Following Page)
ATTACHMENT B
17-20
17-21
EXHIBIT A – Page 1
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 acknow-
ledges 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 Fourth Amended and Restated Employment
Agreement effective February 23, 2016, less applicable deductions, and shall provide
ATTACHMENT B
17-22
EXHIBIT A – Page 2
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
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.
ATTACHMENT B
17-23
EXHIBIT A – Page 3
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
By:________________________________
Dated: ______________, 20__ ________________________________
DAVID KIFF
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Aaron C. Harp, City Attorney
Date:______________________
ATTEST:
By:
Leilani Brown,
City Clerk
Date:_______________________
ATTACHMENT B
17-24
Page 1
FOURTHTHIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This FOURTHTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of November 25, 2014February 23, 2016 (“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 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 a ThirdSecond
Amended and Restated Employment Agreement dated November 25June 11,
20143 (“Employment Agreement”).
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement, and that upon execution of this Agreement, the
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.
ATTACHMENT C
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Page 2
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 become effective November 25, 2014February 23, 2016
(“Effective Date”). Subject to City’s right to terminate Employee’s employment at any
time, as provided for in this Agreement, the Term of this Agreement is two (2) years
from the Effective Date, and shall automatically be extended for one additional twelve
(12) month period on each annual anniversary of the Effective Date of the Agreement
unless City notifies Employee of its intent not to extend the Agreement at least thirteen
(13) months prior to expiration of the original Term or any subsequent automatic
extension of the Term. City’s election not to extend this Agreement shall not entitle
Employee to severance pursuant to Section 7 of 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 at the rate of an annual base salary of
$265,680.00_____________________ (__________________________TWO
HUNDRED SIXTY-FIVE THOUSAND SIX HUNDRED AND EIGHTY DOLLARS
AND NO/100), 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,
ATTACHMENT C
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Page 3
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 is within the approved salary range adopted 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 also agrees to pay Employee a one-time merit payment of $75.69 per
paid work day from the date of adoption of this Agreement back to the beginning
of the Pay Period including November 25, 2015.
C. 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.
DC. 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 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.
ATTACHMENT C
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Page 4
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 9.69 hours per Pay Period.
Employee’s Maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with the
Compensation Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 40 80 (fortyeighty) hours of
administrative Administrative leaveLeave. per calendar year. Administrative
leave 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 $1,250 (one thousand two hundred fifty dollars).
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.
ATTACHMENT C
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Page 5
G. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
H. Amendment of Benefits. 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 the terms of the Third Amended and Restated Employment
Agreement, Employee contributed 12.35% of compensation earnable towards
Employee’s retirement benefit. Effective the pay period that includes January
261, 2016, Employee shall contribute an additional .35% of compensation
earnable for a total employee contribution of 12.70% broken down as follows:
8.0% of the required member contribution; and 2.42% and 2.28% as cost sharing
in accordance with Government Code sections 20516(a) and 20516(f)
respectively. Effective the pay period that includes January 1, 2017, Employee
shall contribute an additional .30% of compensation earnable for a total
employee contribution of 13.00% broken down as follows: 8.0% of the required
member contribution; and 2.42% and 2.58% as cost sharing in accordance with
Government Code sections 20516(a) and 20516(f) respectively.
Also, the Parties agree that the City will not report as special
compensation the value of any Employer Paid Member Contribution. In the
event the City Council adopts a Compensation Plan in which retirement
contributions for non-safety members of the Key & Management Group exceeds
13.00%, this Agreement shall be deemed amended and Employee will be subject
to the same formula or percentage contribution as it is applied to the non-safety
members of the Key & Management Group covered under the Compensation
Plan and for the same duration. In no event shall the Employee’s retirement
contribution be less than 13.00%. Employee retirement contributions that are in
addition to the normal PERS Member Contribution shall be calculated on base
pay, special pays, and other pays normally reported as “PERSable”
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ATTACHMENT C
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Page 6
compensation, and will be made on a pre-tax basis through payroll deduction, to
the extent allowable by the Government Code.
The Parties agree that prior to the Pay Period including June 30, 2015, Employee
shall pay a total of 10.90% of the Employee’s retirement costs (5.58% employee
normal member contribution [“EE side”], 2.42% of employer cost sharing and
2.90% payment pursuant to Government Code Section 20516(f) [“ER side”] on a
pre-tax basis pursuant to IRS Code Section 414(h)(2). Effective the Pay Period
including June 30, 2015, Employee shall contribute an additional 1.45% of
pensionable pay toward retirement costs under Government Code Section
20516(f), for a total contribution of 12.35%. The Parties agree that the City will
not report the value of an Employer Paid Member Contribution as special
compensation. 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 12.35%, this Agreement shall be deemed amended and Employee
will be subject to 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 the Employee’s contribution toward retirement be less
than 12.35%.
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.
ATTACHMENT C
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Page 7
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 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,
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-WiII 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
ATTACHMENT C
17-31
Page 8
Cause (as defined below), 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.
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 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
Employee a lump sum 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 (collectively
“Severance”).
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
ATTACHMENT C
17-32
Page 9
(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 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.
ATTACHMENT C
17-33
Page 10
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 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
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,
ATTACHMENT C
17-34
Page 11
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
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 Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
ATTACHMENT C
17-35
Page 12
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 Clerk
100 Civic Center Drive
Newport Beach, California 92660
(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
ATTACHMENT C
17-36
Page 13
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.
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
ATTACHMENT C
17-37
Page 14
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this Agreement.
(Signatures on Following Page)
ATTACHMENT C
17-38
Page 15
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 An Individual
By: By:________________________
Rush N. Hill, IIDiane B. Dixon, Mayor David Kiff
Date:_______________________ Date:______________________
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Aaron C. Harp, City Attorney
Date:______________________
ATTEST:
By:
Leilani Brown,
City Clerk
Date:_______________________
ATTACHMENT C
17-39
EXHIBIT A – Page 1
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 acknow-
ledges 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 Third Fourth Amended and Restated
Employment Agreement effective JanuaryNovember 256, 20146February 23, 2016, less
ATTACHMENT C
17-40
EXHIBIT A – Page 2
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 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.
ATTACHMENT C
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EXHIBIT A – Page 3
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
By:________________________________
Dated: ______________, 20__ ________________________________
DAVID KIFF
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Aaron C. Harp, City Attorney
Date:______________________
ATTEST:
By:
Leilani Brown,
City Clerk
Date:_______________________
ATTACHMENT C
17-42
Page 1
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of February 23, 2016 (“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 AARON C. HARP ("Employee")
an individual, (sometimes collectively "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 Attorney since
September 6, 2011. Employee is currently employed under a Second Amended
and Restated Employment Agreement dated November 25, 2014 (“Employment
Agreement”).
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement, and that upon execution of this Agreement, the
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.
ATTACHMENT D
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Page 2
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 become effective February 23, 2016 (“Effective Date”). Subject to
City’s right to terminate Employee’s employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
City’s election not to extend this Agreement shall not entitle Employee to severance
pursuant to Section 7 of this Agreement.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Attorney, 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.
ATTACHMENT D
17-44
Page 3
SECTION 3: Compensation and Performance Evaluation.
A. Employer agrees to pay Employee at the rate of an annual base salary of
$237,800.00 (Two Hundred Thirty-Seven Thousand Eight Hundred and No/100
Dollars), 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
is within the approved salary range adopted 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 also agrees to pay Employee a one-time merit payment of $22.31
(Twenty-Two and 31/100 Dollars) per paid work day from the date of adoption of
this Agreement back to the beginning of the Pay Period, including November 25,
2015.
C. Employer, by the City Council, and Employee may set mutually-agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
ATTACHMENT D
17-45
Page 4
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.
D. 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 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 rate of 8.77 hours per Pay Period. Employee’s
maximum accrual for Flex Leave is limited to 400 (four hundred) hours . The right
to sell back accumulated Flex Leave shall be consistent with the Compensation
Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 80 (eighty) hours of Administrative
Leave. 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
ATTACHMENT D
17-46
Page 5
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 $1,000 (one thousand dollars).
F. Automobile Allowance. Employee's duties require him to be available and to
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500
(five hundred dollars) 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.
ATTACHMENT D
17-47
Page 6
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 the terms of the Second Amended and Restated
Employment Agreement, Employee contributed 12.35% of compensation
earnable towards Employee’s retirement benefit. Effective the pay period that
includes January 1, 2016, Employee shall contribute an additional .35% of
compensation earnable for a total employee contribution of 12.70% broken down
as follows: 8.0% of the required member contribution; and 2.42% and 2.28% as
cost sharing in accordance with Government Code sections 20516(a) and
20516(f) respectively. Effective the pay period that includes January 1, 2017,
Employee shall contribute an additional .30% of compensation earnable for a
total employee contribution of 13.00% broken down as follows: 8.0% of the
required member contribution; and 2.42% and 2.58% as cost sharing in
accordance with Government Code sections 20516(a) and 20516(f) respectively.
Also, the Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution. In the event the City Council
adopts a Compensation Plan in which retirement contributions for non-safety
members of the Key & Management Group exceeds 13.00%, this Agreement
shall be deemed amended and Employee will be subject to the same formula or
percentage contribution as it is applied to the non-safety members of the Key &
Management Group covered under the Compensation Plan and for the same
duration. In no event shall the Employee’s retirement contribution be less than
ATTACHMENT D
17-48
Page 7
13.00%. Employee retirement contributions that are in addition to the normal
PERS Member Contribution shall be calculated on base pay, special pays, and
other pays normally reported as “PERSable” compensation, and will be made on
a pre-tax basis through payroll deduction, to the extent allowable by the
Government Code.
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 th e
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. City shall reimburse Employee for expenses incurred in his attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of his duties. City shall pay Employee's annual California Bar
Association dues, membership in the Orange County Bar Association and
appropriate sections of that Association, and the expenses of his satisfying his
Mandatory Continuing Legal Education ("MCLE") obligations. It is not
contemplated that out-of-Orange County travel will be required for Employee to
meet his MCLE obligations.
ATTACHMENT D
17-49
Page 8
C. The expenses to be budgeted and paid in the Section 5, Paragraphs A and B
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's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of his resignation.
ATTACHMENT D
17-50
Page 9
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
Employee a lump sum 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 (collectively
"Severance").
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:
ATTACHMENT D
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Page 10
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 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.
ATTACHMENT D
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Page 11
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 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
documents and information, relating to the City, its residents, businesses,
ATTACHMENT D
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Page 12
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.
ATTACHMENT D
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Page 13
SECTION 11: Indemnification
A. 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.
B. Notwithstanding the foregoing, and consistent with Sections 53243 through
53243.3 of the Government Code, Employee shall be required, if convicted of a
crime involving an abuse of his office or position, to fully reimburse the City for:
(1) any paid leave salary offered by the City to the Employee; (2) any funds
provided for the legal criminal defense of the Employee; (3) any cash settlement
related to the termination that Employee may receive; and (4) any other
payments received by Employee from City that in any way relate to the
foregoing.
SECTION 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
ATTACHMENT D
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Page 14
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
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Aaron C. Harp
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
ATTACHMENT D
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Page 15
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.
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
ATTACHMENT D
17-57
Page 16
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 sha ll
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.
ATTACHMENT D
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A
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EXHIBIT A – Page 1
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
AARON C. HARP ("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 Third Amended and Restated Employment
Agreement effective February 23, 2016, 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
him as a result of his employment by Employer.
ATTACHMENT D
17-60
EXHIBIT A – Page 2
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 Retiremen t
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.
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.
ATTACHMENT D
17-61
EXHIBIT A – Page 3
Dated: __________________, 20__ CITY OF NEWPORT BEACH
By: _____________________________
Dated: __________________, 20__ _____________________________
Aaron C. Harp
APPROVED AS TO FORM:
SCOTT & WHITEHEAD
By: _____________________________
R. Craig Scott
Date: __________________
ATTEST:
By: _____________________________
Leilani Brown,
City Clerk
Date: __________________
ATTACHMENT D
17-62
SECONDTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This SECONDTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of November 25, 2014February 23, 2016 (“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 AARON C.
HARP ("Employee") an individual, (sometimes collectively "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 Attorney since
September 6, 2011. Employee is currently employed under a FirstSecond
Amended and Restated Employment Agreement dated November 26, 201325,
2014 (“Employment Agreement”).
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement, and that upon execution of this Agreement, the
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
ATTACHMENT E
17-63
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 become effective November 25, 2014February 23, 2016
(“Effective Date”). Subject to City’s right to terminate Employee’s employment at any
time, as provided for in this Agreement, the Term of this Agreement is two (2) years
from the Effective Date, and shall automatically be extended for one additional twelve
(12) month period on each annual anniversary of the Effective Date of the Agreement
unless City notifies Employee of its intent not to extend the Agreement at least thirteen
(13) months prior to expiration of the original Term or any subsequent automatic
extension of the Term. City’s election not to extend this Agreement shall not entitle
Employee to severance pursuant to Section 7 of this Agreement.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Attorney, 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.
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SECTION 3: Compensation and Performance Evaluation.
A. Employer agrees to pay Employee at the rate of an annual base salary of
$232,000237,800.00 (Two Hundred Thirty-TwoSeven Thousand Eight Hundred
and No/100 Dollars), 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 is within the approved salary range adopted 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 also agrees to pay Employee a one-time merit payment of $35.38
(Thirty-Five22.31 (Twenty-Two and 3831/100 Dollars) per paid work day from the
date of adoption of this Agreement back to September 6, 2014the beginning of
the Pay Period, including November 25, 2015.
C. Employer, by the City Council, and Employee may set mutually-agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
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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.
D. 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 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 rate of 8.77 hours per Pay Period. Employee’s
maximum accrual for Flex Leave is limited to 400 (four hundred) hours. The right
to sell back accumulated Flex Leave shall be consistent with the Compensation
Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 40 80 (fortyeighty) hours of
administrative Administrative lLeave per calendar year. Administrative leave
Leave will not accrue from calendar year to calendar year and must be used or
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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 $1,000 (one thousand dollars).
F. Automobile Allowance. Employee's duties require him to be available and to
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500
(five hundred dollars) 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.
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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. The Parties agree that priorPursuant to the Pay Period including June
30, 2015terms of the Second Amended and Restated Employment Agreement,
Employee shall pay a total of 10.90contributed 12.35% of the compensation
earnable towards Employee’s retirement costs (5.58% benefit. Effective the pay
period that includes January 1, 2016, Employee shall contribute an additional
.35% of compensation earnable for a total employee normalcontribution of
12.70% broken down as follows: 8.0% of the required member contribution [“EE
side”], ; and 2.42% of employerand 2.28% as cost sharing and 2.90% payment
pursuant toin accordance with Government Code Sectionsections 20516(a) and
20516(f) [“ER side”]) on a pre-tax basis pursuant to IRS Code Section
414(h)(2).respectively. Effective the Pay Period including June 30, 2015pay
period that includes January 1, 2017, Employee shall contribute an additional
1.45.30% of pensionable pay toward retirement costs undercompensation
earnable for a total employee contribution of 13.00% broken down as follows:
8.0% of the required member contribution; and 2.42% and 2.58% as cost sharing
in accordance with Government Code Sectionsections 20516(a) and 20516(f)
respectively., for a total contribution of 12.35%. The
Also, the Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution as special compensation.. In
the event the City Council adopts a Compensation Plan in which the contribution
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toward retirement bycontributions for non-safety members of the Key and&
Management Group is greater than 12.35exceeds 13.00%, this Agreement shall
be deemed amended and Employee will be subject to the same formula or
percentage contribution as it is applied to the non-safety members of the Key
and& Management Group covered under the Compensation Plan and for the
same duration. In no event shall the Employee’s contribution toward retirement
be less than 12.35%.retirement contribution be less than 13.00%. Employee
retirement contributions that are in addition to the normal PERS Member
Contribution shall be calculated on base pay, special pays, and other pays
normally reported as “PERSable” compensation, and will be made on a pre-tax
basis through payroll deduction, to the extent allowable by the Government
Code.
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.
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B. City shall reimburse Employee for expenses incurred in his attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of his duties. City shall pay Employee's annual California Bar
Association dues, membership in the Orange County Bar Association and
appropriate sections of that Association, and the expenses of his satisfying his
Mandatory Continuing Legal Education ("MCLE") obligations. It is not
contemplated that out-of-Orange County travel will be required for Employee to
meet his MCLE obligations.
C. The expenses to be budgeted and paid in the Section 5, Paragraphs A and B
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
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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
Employee a lump sum 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 (collectively
"Severance").
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
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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;
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.
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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 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
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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.
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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
A. 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.
B. Notwithstanding the foregoing, and consistent with Sections 53243 through
53243.3 of the Government Code, Employee shall be required, if convicted of a
crime involving an abuse of his office or position, to fully reimburse the City for:
(1) any paid leave salary offered by the City to the Employee; (2) any funds
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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 Clerk
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Aaron C. Harp
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
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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.
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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.
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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 An Individual
By: _____________________________ By: _____________________________
Rush N. Hill, II
By: By:________________________
Diane B. Dixon, Mayor Aaron C. Harp
Date: __________________________:_______________________ Date:
__________________________:______________________
APPROVED AS TO FORM:
SCOTT & WHITEHEAD
By: _____________________________
By: Date:
R. Craig Scott
Date: __________________
ATTEST:
By: _____________________________
By:
Leilani Brown,
City Clerk
Date: __________________:_______________________
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GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
AARON C. HARP ("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 SecondThird Amended and Restated
Employment Agreement effective November 25, 2014, February 23, 2016, 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 him as a result of his employment by Employer.
EXHIBIT A – Page 1
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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.
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.
EXHIBIT A – Page 2
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Dated: __________________, 20__ CITY OF NEWPORT BEACH
By: _____________________________
Dated: __________________, 20__ _____________________________
Aaron C. Harp
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICESCOTT & WHITEHEAD
By: _____________________________
Assistant City AttorneyR. Craig Scott
Date: __________________
ATTEST:
By: _____________________________
Leilani Brown,
City Clerk
Date: __________________
EXHIBIT A – Page 3
ATTACHMENT E
17-82
THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”)
is made effective as of February 23, 2016 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 the City.
B. Employee has been continuously employed by City as City Clerk since November
22, 2008. Employee is currently employed under a Second Amended and
Restated Employment Agreement dated November 25, 2014 (“Employment
Agreement”).
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and that upon execution of this Agreement, the
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.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term
This Agreement shall become effective February 23, 2016 (“Effective Date”). Subject to
City’s right to terminate Employee’s employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
City’s election not to extend this Agreement shall not entitle Employee to severance
pursuant to Section 7 of 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 at the rate of an annual base salary of
$145,550.00 (ONE HUNDRED FORTY-FIVE THOUSAND FIVE HUNDRED AND
FIFTY DOLLARS AND NO/100), subject to deduction and withholding of any and
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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 is within the approved salary range adopted 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 also agrees to pay Employee a one-time merit payment of $13.65 per
paid work day from the date of adoption of this Agreement back to the beginning
of the Pay Period including November 25, 2015.
C. 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.
D. 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 Employment Agreement and this Agreement.
All of Employee’s accrued leave and other benefit balances shall carry over, and
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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 9.69 hours per Pay Period.
Employee’s maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 80 (eighty) hours of Administrative
Leave. 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 $1,000.00 (one thousand dollars no cents).
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
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G. Amendment of Benefits. 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 the terms of the Second Amended and Restated
Employment Agreement, Employee contributed 12.35% of compensation
earnable towards Employee's retirement benefit. Effective the pay period that
includes January 1, 2016, Employee shall contribute an additional .35% of
compensation earnable for a total employee contribution of 12.70% broken down
as follows: 8.0% of the required member contribution; and 2.42% and 2.28% as
cost sharing in accordance with Government Code sections 20516(a) and
20516(f) respectively. Effective the pay period that includes January 1, 2017,
Employee shall contribute an additional .30% of compensation earnable for a
total employee contribution of 13.00% broken down as follows: 8.0% of the
required member contribution; and 2.42% and 2.58% as cost sharing in
accordance with Government Code sections 20516(a) and 20516(f) respectively.
Also, the Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution. In the event the City Council
adopts a Compensation Plan in which retirement contributions for non-safety
members of the Key & Management Group exceeds 13.00%, this Agreement
shall be deemed amended and Employee will be subject to the same formula or
percentage contribution as it is applied to the non-safety members of the Key &
Management Group covered under the Compensation Plan and for the same
duration. In no event shall the Employee's retirement contribution be less than
13.00%. Employee retirement contributions that are in addition to the normal
PERS Member Contribution shall be calculated on base pay, special pays, and
other pays normally reported as "PERSable" compensation, and will be made on
a pre-tax basis through payroll deduction, to the extent allowable by the
Government Code.
Page 5
ATTACHMENT F
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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. City shall reimburse Employee for expenses incurred in her attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of her duties.
C. The expenses to be budgeted and paid in the Section 5, Paragraphs A and B
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-WiII 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 (as defined below), 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.
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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 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
Employee a lump sum 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 (collectively
“Severance”).
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;
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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 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
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
Page 8
ATTACHMENT F
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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, subject to paragraph B of this Section, below.
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1)
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
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,
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ATTACHMENT F
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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
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of her 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
Page 10
ATTACHMENT F
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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
100 Civic Center Drive
Newport Beach, California 92660
(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
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ATTACHMENT F
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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,
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 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.
Page 12
ATTACHMENT F
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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 13
ATTACHMENT F
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ATTACHMENT F
17-96
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 Third Amended and Restated Employment
Agreement dated ,February 23, 2016, 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
ATTACHMENT F
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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
ATTACHMENT F
17-98
Dated _____________, 20__ CITY OF NEWPORT BEACH
By:________________________________
Dated: _____________, 20__ ________________________________
Leilani Brown
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Aaron C. Harp, City Attorney
Date: _________________
ATTEST:
By:
Deputy City Clerk
Date:_______________________
EXHIBIT A – Page 3
ATTACHMENT F
17-99
Page 1
SECOND AMENDEDTHIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This SECONDTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(“Agreement”) is made effective as of November 25, 2014February 23, 2016 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 the City.
B. Employee has been continuously employed by City as City Clerk since November
22, 2008. Employee is currently employed under a SecondFirst Amended and
Restated Employment Agreement dated November 25March 11, 2014
(“Employment Agreement”).
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and that upon execution of this Agreement, the
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.
ATTACHMENT G
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Page 2
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term
This Agreement shall become effective November 25, 2014February 23, 2016
(“Effective Date”). Subject to City’s right to terminate Employee’s employment at any
time, as provided for in this Agreement, the Term of this Agreement is two (2) years
from the Effective Date, and shall automatically be extended for one additional twelve
(12) month period on each annual anniversary of the Effective Date of the Agreement
unless City notifies Employee of its intent not to extend the Agreement at least thirteen
(13) months prior to expiration of the original Term or any subsequent automatic
extension of the Term. City’s election not to extend this Agreement shall not entitle
Employee to severance pursuant to Section 7 of 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 at the rate of an annual base salary of
$145,550.00______________________ (ONE HUNDRED FORTY-FIVE
THOUSAND FIVE HUNDRED AND FIFTY DOLLARS AND
ATTACHMENT G
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Page 3
NO/100_______________________), 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 is within the approved salary range adopted 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 also agrees to pay Employee a one-time merit payment of
$_________13.65 per paid work day from the date of adoption of this Agreement
back to the beginning of the Pay Period including November 125, 2015.4
C. 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.
D. 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 Employment Agreement and this Agreement.
All of Employee’s accrued leave and other benefit balances shall carry over, and
ATTACHMENT G
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Page 4
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 9.69 hours per Pay Period.
Employee’s maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 40 80 (fortyeighty) 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 $1,000.00 (one thousand dollars no cents).
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
ATTACHMENT G
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Page 5
G. Amendment of Benefits. 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 the terms of the Second Amended and Restated
Employment Agreement, Employee contributed 12.35% of compensation
earnable towards Employee's retirement benefit. Effective the pay period that
includes January 26, 2016January 1, 2016, Employee shall contribute an
additional .35% of compensation earnable for a total employee contribution of
12.70% broken down as follows: 8.0% of the required member contribution; and
2.42% and 2.28% as cost sharing in accordance with Government Code sections
20516(a) and 20516(f) respectively. Effective the pay period that includes
January 1, 2017, Employee shall contribute an additional .30% of compensation
earnable for a total employee contribution of 13.00% broken down as follows:
8.0% of the required member contribution; and 2.42% and 2.58% as cost sharing
in accordance with Government Code sections 20516(a) and 20516(f)
respectively.
Also, the Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution. In the event the City Council
adopts a Compensation Plan in which retirement contributions for non-safety
members of the Key & Management Group exceeds 13.00%, this Agreement
shall be deemed amended and Employee will be subject to the same formula or
percentage contribution as it is applied to the non-safety members of the Key &
Management Group covered under the Compensation Plan and for the same
duration. In no event shall the Employee's retirement contribution be less than
13.00%. Employee retirement contributions that are in addition to the normal
PERS Member Contribution shall be calculated on base pay, special pays, and
other pays normally reported as "PERSable" compensation, and will be made on
a pre-tax basis through payroll deduction, to the extent allowable by the
Government Code.The Parties agree that prior to the Pay Period including June
ATTACHMENT G
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30, 2015, Employee shall pay a total of 10.90% of the Employee’s retirement
costs (5.58% employee normal member contribution [“EE side”], 2.42% of
employer cost sharing and 2.90% payment pursuant to Government Code
Section 20516(f) [“ER side”] on a pre-tax basis pursuant to IRS Code Section
414(h)(2). Effective the Pay Period including June 30, 2015, Employee shall
contribute an additional 1.45% of pensionable pay toward retirement costs under
Government Code Section 20516(f), for a total contribution of 12.35%. The
Parties agree that the City will not report the value of an Employer Paid Member
Contribution as special compensation. 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 12.35%, this Agreement shall be deemed
amended and Employee will be subject to 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 the Employee’s
contribution toward retirement be less than 12.35%.
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. City shall reimburse Employee for expenses incurred in her attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of her duties.
ATTACHMENT G
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Page 7
C. The expenses to be budgeted and paid in the Section 5, Paragraphs A and B
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-WiII 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 (as defined below), 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 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
ATTACHMENT G
17-106
Page 8
Employee a lump sum 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 (collectively
“Severance”).
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;
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
ATTACHMENT G
17-107
Page 9
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 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.
ATTACHMENT G
17-108
Page 10
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1)
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
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
ATTACHMENT G
17-109
Page 11
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 Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of her 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
ATTACHMENT G
17-110
Page 12
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
100 Civic Center Drive
Newport Beach, California 92660
(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,
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.
ATTACHMENT G
17-111
Page 13
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.
[Signatures on Next Page.]
ATTACHMENT G
17-112
Page 14
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 An Individual
By: By:________________________
Rush N. HillDiane B. Dixon, II, Mayor Leilani I. Brown
Date:_______________________ Date:______________________
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Aaron C. Harp, City Attorney
Date: _________________
ATTEST:
By:
Cristal McDonald
Deputy City Clerk
Date:_______________________
[End of Signatures]
ATTACHMENT G
17-113
EXHIBIT A – Page 1
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 Second Third Amended and Restated
Employment Agreement dated November 25, 2014February 23, 2016, 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
ATTACHMENT G
17-114
EXHIBIT A – Page 2
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.]
ATTACHMENT G
17-115
EXHIBIT A – Page 3
Dated _____________, 20__ CITY OF NEWPORT BEACH
By:________________________________
Dated: _____________, 20__ ________________________________
Leilani Brown
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Aaron C. Harp, City Attorney
Date: _________________
ATTEST:
By:
Cristal McDonald
Deputy City Clerk
Date:_______________________
ATTACHMENT G
17-116
AT
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2/23/16 17-117