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HomeMy WebLinkAbout16 - Employment Agreements for the City Manager, City Attorney, and. City Clerk4 SEW Pp�T = CITY OF O z NEWPORTBEACH. City Council Staff Report April 25, 2017 Agenda Item No. 16 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Barbara Salvini, Human Resources Director - 949-644-33001 bsalvini@newportbeachca.gov PREPARED BY: Barbara J. Salvini, Human Resources Director, with Edward P. Zappia, Outside Legal Counsel PHONE: 949-644-3259 TITLE: Amended and Restated Employment Agreements for the City Manager, City Attorney, and. City Clerk 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 ("Appointees"). Their terms and conditions of employment are defined by their respective. Employment Agreements. From time to time, the City Council and the Appointees renegotiate the employment terms, including adjustments to compensation and/or benefits. During the Closed Sessions on February 14, 2017 February 28, 2017, March 14, 2017, and April 11, 2017, the City Council conducted and finalized performance reviews of the City Manager, City Attorney and City Clerk and considered compensation and/or benefit changes for them. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; b) Approve and authorize the Mayor to execute the Fifth Amended and Restated Employment Agreement between the City of Newport Beach and Dave Kiff, City Manager, subject to the terms and conditions approved by the City Council; c) Approve and authorize the Mayor to execute the Fourth Amended and Restated Employment Agreement between the City of Newport Beach and Aaron Harp, City Attorney, subject to the terms and conditions approved by the City Council; d) Approve and authorize the Mayor to execute the Fourth Amended and Restated Employment Agreement between the City of Newport Beach and Leilani Brown, City Clerk, subject to the terms and conditions approved by the City Council; and 16-1 Amended and Restated Employment Agreements for the City Manager, City Attorney, and City Clerk April 25, 2017 Page 2 e) Adopt Resolution No. 2017-32, A Resolution of the City Council of the City of Newport Beach, California, Modifying the Salary Range for the City Clerk and Establishing the Auto Allowances for the City Manager, City Attorney, and City Clerk. FUNDING REQUIREMENTS: A comprehensive estimate of the costs associated with the Amended and Restated Employment Agreements is provided with this report (Attachment G). For FY2016-17, the cost to implement the Amended and Restated Employment Agreements for the City Manager, City Attorney and City Clerk is estimated to be $1,360. The current adopted budget includes sufficient funding for the changes in compensation. 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 initial appointment nearly eight years ago, the terms and conditions of his employment have been revisited periodically and his original Employment Agreement has been amended accordingly. The changes include 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 Fourth Amended and Restated Employment Agreement, which was approved by the City Council on February 23, 2016, and which provided for an approximate 8% salary increase and a requirement for Mr. Kiff to increase his retirement contribution to 13%. The proposed Fifth Amended and Restated Agreement (Attachment A) provides for a 0% salary increase; the agreement calls for the City to provide Mr. Kiff with an additional allowance in a sum of one percent (1 %) of his annual salary as deferred compensation, effective April 25, 2017. Aaron Harp was appointed as the City Attorney by the City Council on September 6, 2011. His employment is currently governed by a Third Amended and Restated Employment Agreement which was approved by the City Council on February 23, 2016, and provided for an approximate 2.5% salary increase and an increase in the retirement contribution to 13%. The proposed Fourth Amended and Restated Employment Agreement (Attachment C) calls for a 0% salary increase; however, the rate at which he accrues flexible leave will increase from 8.77 to 9.69 hours per pay period. Additionally, Mr. Harp will be placed on a 9/80 work schedule. Leilani Brown has served as the City Clerk since November 22, 2008. In 2016, she received an approximate 2.5% salary increase pursuant to the terms of her current agreement (Third Amended and Restated Employment Agreement) and was also required to contribute a total of 13% towards her retirement. Her proposed Fourth Amended and Restated Employment Agreement (Attachment E) provides for an increase of $100 per month to her salary and an auto allowance of $200 per month, effective April 25, 2017. 16-2 Amended and Restated Employment Agreements for the City Manager, City Attorney, and City Clerk April 25, 2017 Page 3 Under California Public Employees Retirement System (CaIPERS) regulations, reportable employee compensation must be paid within a publicly available salary schedule which has been duly adopted by the governing body, (e.g. the City Council). The salary ranges for the appointees are as follows: City Manager - $188,219 to $282,318 annually City Attorney - $158,537 to $237,806 annually City Clerk - $97,032 to $145,558 annually In order to implement the proposed adjustment for the City Clerk, the salary range needs to increase to provide sufficient movement for the incumbent. The proposed resolution (Attachment H, Resolution No. 2017-32), provides a 1 % increase in the range for the City Clerk. If adopted, the salary range for City Clerk would become $98,232 to $147,013 annually. Additionally, Resolution No. 2017-32 establishes the auto allowances for the City Manager, City Attorney, and City Clerk. Though the auto allowance is included in the appointees' respective Employment Agreement, we recommend the City Council also authorize the benefit via resolution. This ensures there is no confusion or conflict between the benefit the City Manager, City Attorney, and City Clerk receive from those offered to other Executive Management employees, as stipulated in the Key and Management Compensation Plan, adopted by the City Council on January 26, 2016 (Resolution No. 2016-13). Certain other 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. Except as provided above, the language contained in the proposed amended and restated agreements for the respective Appointees does not alter any of the previously established benefit relationships. Attached for the City Council's consideration are the respective restated and amended employment agreements for the City Manager, City Attorney and City Clerk (Attachments A -F). Included with each copy is a redline version to reflect the changes in the contract from the prior agreement. If approved by the City Council, Human Resources and Finance staff will work together to implement the terms. Consistent with the City Council's stated goals of transparency, the Employment Agreements will also be published on the City's website and readily available for public view. 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. 16-3 Amended and Restated Employment Agreements for the City Manager, City Attorney, and City Clerk April 25, 2017 Page 4 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 — Recommended Fifth Amended and Restated Employment Agreement for the City Manager Attachment B — Recommended Fifth Amended and Restated Employment Agreement for the City Manager (Redline Version) Attachment C — Recommended Fourth Amended and Restated Employment Agreement for the City Attorney Attachment D — Recommended Fourth Amended and Restated Employment Agreement for the City Attorney (Redline Version) Attachment E — Recommended Fourth Amended and Restated Employment Agreement for the City Clerk Attachment F — Recommended Fourth Amended and Restated Employment Agreement with the City Clerk (Redline Version) Attachment G — Estimated Cost of Appointees Benefits and Pay Adjustments Attachment H — Resolution No. 2017-32 Modifying Salary Range for the City Clerk and Establishing Auto Allowance for the City Manager, City Attorney, and City Clerk 16-4 Uffl L'TTai1IF,1 FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY MANAGER This FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 25, 2017 ("Effective Date") and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and 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 Fourth Amended and Restated Employment Agreement dated February 23, 2016 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment Agreements 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, and that there are no other agreements between them; oral, written or implied. Page 1 16-5 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 April 25, 2017 ("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 six (6) months prior to expiration of the original Term or any subsequent automatic extension of the Term of this Agreement. 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 Authorit 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 an annual base salary of $265,680 (Two hundred sixty five thousand and six hundred and eighty dollars) ("Base Salary"), subject to deductions and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or Page 2 16-6 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, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, 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 Page 3 16-7 ("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. Employee shall be entitled to 80 (eighty) hours of paid 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 or cash out 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. Employee shall receive one percent (1%) of Employee's Base Salary in the form of an Employer paid deferred compensation contribution to Employer's approved deferred compensation plan. F. 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). G. 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 (Five hundred dollars) per month as an automobile allowance so that Employee may respond to these demands of City business. Page 4 H. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. I. 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. J. PERS. Employee contributes 13.00% of compensation earnable towards Employee's retirement benefit 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. 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 Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent 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 Page 5 16-9 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. 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. Page 6 16-10 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 (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. Upon the effective date of resignation, Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential severance pay. SECTION 7: Severance and Ben efit 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 beginning on the effective date of termination a lump sum benefit equal to six (6) months of his then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the City medical benefits plan at time of termination (collectively, "Severance"). Page 7 16-11 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 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 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. Page 8 16-12 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. 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 Page 9 16-13 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, incompatible with or inimical to, or which materially interferes with his duties and responsibilities to Employer. (Cal. Govt. Code §§ 1125, et. seq.) 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 Employer determines there is a conflict of interest between Employer and Employee and independent counsel is required for Page 10 16-14 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. (Cal. Govt. Code §§ 995, et. seq.) 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: (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 Page 11 16-15 Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing. SECTION 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. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular Page 12 16-16 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) Page 13 16-17 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 ByBy Kevin Muldoon, Mayor David Kiff Date: Date: APPROVED AS TO FORM: By: 11 Date. Edward P. Zappia r r< THE. ZAPPIA LAW FIRM A Professional Corporation ATTEST: Leilani Brown, City Clerk Date: [End of Signatures] Page 14 16-18 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 Fifth Amended and Restated Employment Agreement effective April 25, 2017, less applicable deductions, and shall provide the EXHIBIT A — Page 1 16-19 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. EXHIBIT A — Page 2 16-20 4. Fees. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees. Dated Dated: CITY OF NEWPORT BEACH , 20_ By: , 20 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE IS Aaron C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk Date: DAVID KIFF EXHIBIT A — Page 3 16-21 Attachment B FIFTHFOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY MANAGER This FIFTHOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 25, 2017Febr„�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 Fourth -Third Amended and Restated Employment Agreement dated February��^%er 235, 20164 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede the -all rp for Employment Agreements, and that upon execution of this Agreement, the -any for Employment Agreements 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, and that there are no other agreements between them; oral, written or implied.-. Page 1 16-22 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 April 25, 2017€ehruar„ 23 201 ("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 six 6 months then (13) menths prier to expiration of the original Term or any subsequent automatic extension of the Term of this Agreement. 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 s rate of an annual base salary of $265,680,90 (Two #hundred and—ssixty ffive tthousand and ssix h -hundred and Page 2 16-23 FIVE THOUSAND SIX HUNDRED RED SND EIGHTY DOLLARS Al - NQ/100 ) ("Base Salary"), subject to deductions and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("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 ase alaryBase 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 Bbase Ssalary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. BG. 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. C9. 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 Page 3 16-24 A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and his leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the current rate of 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. ,FEalendar year 2016, and eaGh Gatendar year thero�F,Employee shall be entitled to 80 (eighty) hours of paid Administrative Leave. Administrative Leave will not Rot -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 or cash out any accumulated Administrative Leave. ®. 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. 9-.E. Employee shall receive one percent (1 %) of Employee's Base Salary -in the form of an Employer paid deferred compensation contribution to Employer's approved deferred compensation plan. Page 4 16-25 E.F. 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 (Oone tthousand two hundred fifty dollars).two #fired fifty dollars). F-. G. 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 (Five hundred dollars) -per month as an automobile allowance so that Employee may respond to these demands of City business. ..H. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H-1. 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. lei. PERS. t -Employee contributesd 13.00% 12.35% of compensation earnable towards Employee's retirement benefit. Effeotwe the paw riedthat inGlcrudes 0 oarnahlo for a to� employee �trib hien of 17 70% broken rlo�nin as follonis• cCtri�-a-gr�rvi--a--cQ crrr�7rv��.� �—rmv-�rvrc r-rvrrvvr..r. 00 0 E)f the required member ; and ,n aeEerdanGe with Government mode seGtiens 70516(a) and 2051&(f) speGtivelj . EffeGtiVe the pay peried-that iRGludes jaRuary 1, '�n�Empioyee shall Gee tea +tinnol 30% of tion oornohlo for a trtol vriurr— rrvr�u��. � U �r—�pei�aTrvrr— �a—crnur employee GentributiOR of ° 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. Page 5 16-26 T , '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 pa Base Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent 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. Page 6 16-27 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 -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 (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 Page 7 16-28 Employee providing forty-five (45) calendar days prior written notice to Employer of the effective date of his resignation. Upon the effective date of resignation, Emalovee forfeits all comaensation and benefits owina for the remainder of the term of this Agreement, as well as any potential severance pay. SECTION 7: Severance and Ben efit 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 beginning on the effective date of termination a lump sum benefit equal to six (6) months of his then applicable Bbase Ssalary, and shall provide six (6) months of medical benefits coverage as provided under the Compensation Plan,beginning on the effeGtive date of terminafinn ( enGtiv.ely "S'eye an_Go"l ) as long as Employee is already enrolled and receiving medical coverage through the City medical benefits plan at time of termination (collectively, "Severance'l. . 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 R_egA,3f—Mmeeting 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 Page 8 16-29 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 Aadministrative Lleave. SECTION 8: Employee's Obligations and Hours of Work Page 9 16-30 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, oral, or electronic statement to any member of the public, the press, or any City Page 10 16-31 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, inn�mn�+ihlo w4hincompatible with or inimical to, or which materially interferes with his duties and responsibilities to Employer. (Cal. Govt. Coded 1125, et. seq.) 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 Employer determines there is a conflict of interest between Employer and Employee ; SUGh a—Gase so thatand 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. (Cal. Govt. Code §§ 995, et. seq.) 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 Page 11 16-32 offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City 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 five days after the date of mailingas Of the date 0 deposit Of SUGh written nGtiGe in the GE)urse of transmission on the United States Postal ServiGe oc previded by law. Page 12 16-33 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. 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 Page 13 16-34 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) Page 14 16-35 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation DnaRe a DiXeRKevin Muldoon, Mayor Date: APPROVED AS TO FORM: CITY T-T(lC NEY'S OFFICE CITY Edward P. Zappia THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: Leilani Brown, City Clerk Date: Page 15 EMPLOYEE, An Individual By: David Kiff Date: Date: 16-36 [End of Sianaturesl Page 16 16-37 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 Fifth Amended and Restated Employment Agreement effective April 25, 2017February EXHIBIT A — Page 1 16-38 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. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. EXHIBIT A — Page 2 16-39 4. Fees and r^c+c. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees and GGStS. Dated 1 20_ NEWPORT BEACH Dated 120 By: Dated: 120 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk Date: DAVID KIFF EXHIBIT A — Page 3 CITY OF 16-40 Attachment C FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY ATTORNEY This FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 25, 2017 ("Effective Date") and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and 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 Third Amended and Restated Employment Agreement dated February 23, 2016 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment Agreements 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, and that there are no other Agreements between them; oral, written or implied. 1 16-41 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 April 25, 2017 ("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 six (6) months prior to expiration of the original Term or any subsequent automatic extension of the Term of this Agreement. 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. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee an annual base salary of $237,800 (Two hundred thirty-seven thousand and eight hundred dollars) ("Base Salary"), subject to deductions and withholdings 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 2 16-42 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, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, 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 9.69 hours per Pay Period. Employee's maximum accrual for Flex Leave is limited to 400 (four hundred) hours. The right 3 16-43 to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to 80 (eighty) hours of paid Administrative Leave per calendar year (January 1 through the pay period including December 31). 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 or cash out 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. 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. 4 16-44 I. PERS. Employee shall contribute 13.00% of compensation earnable towards Employee's retirement benefit 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. 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 Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent 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. 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 5 16-45 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 (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. Upon the effective date of resignation, Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential severance pay. 0 16-46 SECTION 7: Severance and Ben efit 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 beginning on the effective date of termination a lump sum benefit equal to six (6) months of his then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the City medical benefits plan at time 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 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; 16-47 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 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 0 . -: 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 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. However, as City Attorney, Employee shall not take a 9/80 day: (1) on any Monday or Friday immediately preceding a regularly scheduled City Council Meeting; (2) on the same day as the Assistant City Attorney takes a 9/80 day off; or (3) any other day where the press of business requires Employee's attendance, in Employee's good faith judgment, such as court appearances or emergency City Council meetings. 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 privileged, 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, E 16-49 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, incompatible with, or inimical to, or which materially interferes with his duties and responsibilities to Employer. (Cal. Govt. Code 1125 — 1129.) 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 Employer determines that there is a conflict of interest between Employer and Employee and 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. (Cal. Govt. Code 995, et. seq.) 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 10 16-50 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 five days after the date of mailing. 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 11 16-51 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. 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. 12 16-52 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. 13 16-53 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation Mom Kevin Muldoon, Mayor Date: APPROVED AS TO FORM: By: Edward P. Zaappia s THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: By: Leilani Brown City Clerk Date: EMPLOYEE, An Individual j Aaron C. Harp Date: Date: [End of Signatures] 1,4 16-54 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. 15 16-55 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 current Fourth Amended and Restated Employment Agreement dated April 25, 2017„ 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. 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 16 16-56 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. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees. [Signatures on Next Page.] 17 16-57 Dated , 20_ By: Dated: 20 APPROVED AS TO FORM: By: Date: ATTEST: By: City Clerk Date: CITY OF NEWPORT BEACH Aaron C. Harp 18 16-58 Attachment D FOURTHTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT 4CITY OF NEWPORT BEACH CITY ATTORNEY} This FOURTHTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 26. 2017 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 ThirdseEead Amended and Restated Employment Agreement dated February oven4ber�5 23, 20164 ("Employment Agreement") C. The Parties mutually agree that they intend for this Agreement to supersede all rp for Employment Agreements, and that upon execution of this Agreement, the -any prior Employment Agreements 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 e€mployment, and that there are no other Agreements between them;,- oral, written or implied. 1 16-59 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 April 25, 2017 ("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 six (6) months prior to expiration of the original Term or any subsequent automatic extension of the Term of this Agreement. City's election not to extend this Agreement shall not entitle Employee to severance Dursuant to Section 7 of this Aareement. wnf�w" 7, i ■01111 ■ 1 . 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 2 16-60 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: Comaensation and Performance Evaluation. A. A. Employer agrees to pay Employee at the race Aran annual base salary of $237,8000 (Two hundred thirty-seven thousand and �e..,ight hundred dollars)237,800.00 Y .00 (T\ /e_ Rdred Thir+.'.i_Ly-S a mei-hcre�j''' d Fight Hundred domed �and No/100 GeRtcnnl�_) ("Base Salary" , subject to deductions and withholdings 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 BbaseBase Ssalary 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, 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 durina the period in which this Aareement remains in effect. 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. 3 16-61 r, ■ •ee -e-• a -e e- •• -• SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between therip or Employment Agreement and this Agreement. _All of Employee's accrued leave and other benefit balances shall carry over as agreed, 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 9.69 8-.7-7 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 GaleRdar year 2016, R d eaGh EaleRdar year thereafter, 'Employee shall be entitled to 80 (eighty) hours of paid Administrative 4 16-62 012 ...M1I ........... ON I I i I _. ... W. . W " W. 11. W NO ON 11 ■ •ee -e-• a -e e- •• -• SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between therip or Employment Agreement and this Agreement. _All of Employee's accrued leave and other benefit balances shall carry over as agreed, 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 9.69 8-.7-7 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 GaleRdar year 2016, R d eaGh EaleRdar year thereafter, 'Employee shall be entitled to 80 (eighty) hours of paid Administrative 4 16-62 Leave per calendar year (January 1 through the pay period including December 31). _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 or cash out 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 hHundred dollarsf v e hundred rdellars) per month as an automobile allowance so that Employee may respond to these demands of City business. G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. Amendment 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. 1. PERS. Pursuant suant tont cvthe terms of the CoGend AmeRded and Restated Em met Agreement, Employee shall contributed 132.0035% of compensation earnable 5 16-63 towards Employee's retirement benefit .�Karns�r� I earnable for a total employee Gontribution of 12.70% broken down as folio 8.0% of the required member 2.420% .1% Or)91 rinl nnri 0091Aff --00 "1 1111 .. •�- •pleyee Gentribution of 13.00% broken down as follows:1'. of -• -• member• • • and 2.42% and 2.58% as cost• in accordance Government••- sections 20516(a)and 1 •respectively. TAlso,he 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 evenfevent, 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 BbaseBase Salarypa-y, 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 ReornbursableGeneral 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 0 16-64 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. 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 (as defined below), and with or without notice. Employer shall pay Employee for all services through the Eeffective Dilate 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. 16-65 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. in the overt of E resiqRatwenUpon the effective date of resignation, Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential severance pay. 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 Employeeginning on the effective date of termination a lump sum benefit equal to six (6) months of his then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the Citv medical benefits plan at time of termination (collectively. "Severance"). .. _ .. _..- I I.M. -e •- WIN I I � I M MW_ . iMme - 1110 11�00 .. .. _A2.. 0 16-66 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 M8eti„n 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 organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no even 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. E 16-67 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 Aadministrative Laeave. SECTION 8: Employee's Obligations and Hours of Work A. 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, noonday +hre gh Frida)f, during normal business hours, submect 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 EmDlovee Policv Manual and referred to in Miscellaneous Section (D) of the Compensation Plan. However, as City Attorney, Employee shall not take a 9/80 day: (1) on any Monday or Friday immediately preceding a regularly scheduled City Council Meeting; (2) on the same day as the Assistant City Attornev takes a 9/80 day off: or (3) anv other day where the Dress of business 10 requires Employee's attendance, in Employee's good faith judgment, such as court _appearances or emergency City Council meetings. 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 privileged, 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, incompatible 11 16-69 with, or inimical to, or which materially interferes with his duties and responsibilities to Employer. (Cal. Govt. Code 1125 — 1129.) 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 Employer determines that there is a conflict of interest between Employer and EmployeeR SUGh a Gaeso tand 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. (Cal. Govt. Code 995, et. seq.) 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 conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices 12 16-70 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 acro five days after the date of mailingof deposit Of SUGh written n0t"Ge OR the GOWFSe Of traRSMiSSiGR in the United States Postal 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 13 16-71 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 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. 14 16-72 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation Kevin MuldoonDiaRe B. Dq , Mayor Date: APPROVED AS TO FORM: EMPLOYEE, An Individual Aaron C. Harp Date: By: Date: - Edward P. Zaaaia THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: 15 16-73 By: Leilani Brown City Clerk Date: [End of Signatures] 16 16-74 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. 17 16-75 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 current Fourth Amended and Restated Employment Agreement dated April 25, 2017, Employment moment effeGtiVe February �2 2, mo2016, 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. 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 18 16-76 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—ani—Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees Gests. Sianatures on Next Paae. 19 16-77 amrr-T: a NEWPORT BEACH Dated 20 By: Dated: 20 APPROVED AS TO FORM: Date: ATTEST: City Clerk _Aaron C. Harp 20 CITY OF 16-78 Date: 21 16-79 Attachment E FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY CLERK This FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 25, 2017 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 Third Amended and Restated Employment Agreement dated February 23, 2016 ("Employment Agreement") C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior 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, and that there are no other agreements between them; oral, written or implied. Page 1 16-80 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 April 25, 2017. ("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 six (6) months prior to expiration of the original Term or any subsequent automatic extension of the Term of this Agreement. 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 an annual base salary of $146,750 (One Hundred Forty Six Thousand and Seven Hundred and Fifty Dollars) ("Base Salary"), subject to deduction and withholding of any and all sums required for Page 2 16-81 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, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in her employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. Page 3 16-82 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. Employee shall be entitled to 80 (eighty) hours of paid 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 or cash out 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 her to be available and to respond to demands of City business outside of regular business hours on occasion. Employer shall, therefore, pay to Employee $200 (Two Hundred Dollars) per month as an automobile allowance so that Employee may respond to these demands of City business. Page 4 16-83 G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. 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. I. PERS. Employee shall contribute 13.00% of compensation earnable towards Employee's retirement benefit 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. 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 Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent 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 Page 5 16-84 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 she incurs 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 -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 (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 providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. On the effective date of resignation, Page 6 16-85 Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential severance pay. SECTION 7: Severance and Ben efit 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 beginning on the effective date of termination a lump sum benefit equal to six (6) months of her then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the City medical benefits plan at time 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 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; Page 7 16-86 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 16-87 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 Employee's 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, Page 9 16-88 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, incompatible with, or inimical to, or which materially interferes with her duties and responsibilities to Employer. (Cal. Govt. Code 1125, et. seq.) 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 Employer determines there is a conflict of interest between Employer and Employee and 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. (Cal. Govt. Code 995, et. seq.) 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 Page 10 16-89 offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Manager 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 five days after mailing. . 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 Page 11 16-90 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 16-91 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 16-92 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation Kevin (Muldoon, Mayor Date: APPROVED AS TO FORM: By: Edward P. Zoppia THE ZAPPIA LAVA FIRM A Professional Corporation Q%694636 Jennifer Nelson Assistant City Clerk Date: EMPLOYEE, An Individual Leilani I. Brown Date: Date: [End of Signatures] Page '14 16-93 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 Fourth Amended and Restated Employment Agreement dated April 25, 2017, 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 16-94 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. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover her/its reasonable attorneys' fees. [Signatures on Next Page.] EXHIBIT A — Page 2 16-95 Dated 120_ By: Dated: , 20 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp, City Attorney Date: ATTEST: Assistant City Clerk Date: CITY OF NEWPORT BEACH Leilani Brown EXHIBIT A — Page 3 16-96 Attachment F FOURTHTHIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY CLERK This FOURTHS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 25, 2017 Fehr, 'moo 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 dThird--Amended and Restated Employment Agreement dated February 23Nevember�5, 20164 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede th-e-ail rp for Employment Agreements and that upon execution of this Agreement, any rp for tke--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, and that there are no other agreements between them;—oral, written or implied. - Page 1 16-97 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 April 25, 2017. February 201 ("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 six (6) months thirteen (13) rneRths prier to expiration of the original Term or any subsequent automatic extension of the Term of this Agreement. 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 $146,750 -.GO (One hHundred and-Fforty Ssix Tthousand and Sseven Hhundred Page 2 16-98 and Ffifty Ddollaers and zerG G ------'--)1145,550.()O (ONE HUNDRED RED FORTV_FIVE THOUSAND FIVE HUNDRED RED ND FIFTY DOLLARS AND NQ/100) "Base Salary"), 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 Bdase Ssalary 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.C-. Employer, by the City Council, and Employee shall pr„mr,+Ivmay 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. C9. 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 Page 3 16-99 A. Benefit Balances Carried Over. Employee shall not have a break in her employment service between therip for Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the current rate of 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. i eF Galendar year 20c0 16, and each Ealencndar year thero�F,Employee shall be entitled to 80 (eighty) hours of paid 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 or cash out 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 _-.O&(ene the SaR d delloro Re Gents -One Thousand Dollars). Page 4 16-100 F. Automobile Allowance. Employee's duties require -n ether to be available and to respond to demands of City business outside of regular business hours on occasion. Employer shall, therefore, pay to Employee $200 (Two Hundred Ddollars and nQ Gent) per month as an automobile allowance so that Employee may respond to these demands of City business. F—.G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. G -.H. 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, 1. PERS. Pursuant to- the terms of the SeGE)Rd Amended and Restat-F-9 Employment Agreement, • •yee shall contributed 123.11 • compensation earnable towards Employee's retirement benefit-. EffeGtive thee Or)l _ -- ■• •__ N .0. WIN MUNI 1110.11 ■• eaFRable for a total emplOyee GORtribUtiGR of 13.00 -OA broken down as follows: 8.0% of -• -• member contribution;and 2.42% and 2.58% as cost• in accordance with Government••- sections 20516(a)and 1 • Also, Tthe 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 Page 5 16-101 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 _Bbase SalafyBase Salar 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. B. City shall reimburse Employee for expenses she in,ed incurs +n -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 -Will Employment Relationship Page 6 16-102 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 EmployeeLs providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. On the effective date of resignation, Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential severance pay. SECTION 7: Severance and Ben efit Payoff at Termination, and General Release Agreement A. Alf 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 beginning on the effective date of termination a lump sum benefit equal to six (6) months of her then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the City medical benefits plan at time of termination (collectively, "Severance"). Page 7 16-103 A-. B. 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 MeetinImeeting 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 Page 8 16-104 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. Page 9 16-105 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 Employee's 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 Page 10 16-106 Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with, incompatible with, or inimical to, or which materially interferes with her duties and responsibilities to Employer. (Cal. Govt. Code 1125, et. seq.) 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 Employer determines there is a conflict of interest between Employer and EmployeeiR SaGh a Gase so that and 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. (Cal. Govt. Code 995, et. seq.) 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. Page 11 16-107 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 five days after mailing. as of the .,late of deposit of SUGh written n0tiGe on the GE)UPSe of transmission in the United States Postal SeFViGe as provided by la . 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. Page 12 16-108 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.] Page 13 16-109 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation DnaRe a DixenKevin Muldoon, Mayor Date: APPROVED TO FORM CITY ��► EMPLOYEE, An Individual Leilani I. Brown Date: By: Date: - Edward P. Zappia THE ZAPPIA LAW FIRM A Professional Corporation By: .- ���... =� ATTEST: Jennifer Nelson Deputy- Assistant City Clerk Date: [End of Signatures] Page 14 16-110 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 FourthThird Amended and Restated Employment Agreement dated_.-, ,,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 16-111 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 C^c+c. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover her/its reasonable attorneys' fees -a -n . [Signatures on Next Page.] EXHIBIT A — Page 2 16-112 Dated , 20 CITY OF NEWPORT BEACH Dated 20 m Dated: 20 Leilani Brown APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp, City Attorney Date: ATTEST: Deputy City Assistant City Clerk Date: EXHIBIT A — Page 3 16-113 Attachment G Estimated Cost of Pay and Benefits Adjustments for Council Appointees City Manager Dave Kiff Benefit change: 1% contribution to deferred compensation. 1% biweekly contribution $ 102.18 Annual benefit $ 2,656.80 Annual benefit w/ Medicare $ 2,695.33 FY 2016-17 budget increase $ 570.17 City Attorney Aaron Harp Benefit change: Increase biweekly flex leave accrual by .92 hrs. Biweekly value of additional flex hours $ 105.18 Annual value of additional flex hours $ 2,734.70 * The amount stated is the value of the benefit, but is not a direct cost City Clerk Leilani Brown Benefit change: Increase base pay by $100 per month and $200 per month car allowance. Biweekly pay increase $ 46.15 Annual increase $ 1,200.00 Annual increase with pension & Medicare $ 1,303.73 Biweekly car allowance $ 92.31 Annual car allowance $ 2,400.00 Annual benefit with Medicare $ 2,434.80 Total annual increase $ 3,738.53 FY 2016-17 budget increase $ 790.84 FY 2016-17 budget total increase $ 1,361.01 4/25/17 16-114 ATTACHMENT H RESOLUTION NO. 2017 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA MODIFYING THE SALARY RANGE FOR THE CITY CLERK AND ESTABLISHING AUTO ALLOWANCES FOR THE CITY MANAGER, 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 Council") to establish terms of employment, including compensation and benefits, for City of Newport Beach ("City") employees; WHEREAS, the City Council previously adopted Resolution No. 2016-35 which, among other things, revised the salary range for the City Clerk, a non -represented Executive Management employee; WHEREAS, the City desires to provide the City Clerk a base wage increase; WHEREAS, there is insufficient movement available from the current salary for the incumbent City Clerk to advance in the salary range for her position for the desired base wage increase amount; WHEREAS, in order to provide the desired base wage increase for the City Clerk, the salary range for her position needs to be increased; WHEREAS, the City Council desires to modify the current salary range for the City Clerk by increasing the minimum and maximum amounts of the current salary range of the City Clerk by one percent (1 %) each to provide sufficient movement for the incumbent City Clerk to advance in the salary range for her position for the desired base wage increase amount; WHEREAS, the City Council previously adopted Resolution No. 2016-13, the Key and Management Compensation Plan, establishing compensation and benefit terms for certain unrepresented employees, which are divided into five categories — Executive Management, Administrative Management, Administrative Management -Safety, Division Management, and Confidential employees; WHEREAS, the Key and Management Compensation Plan provides for a limited auto allowance between two hundred dollars ($200) and four hundred dollars ($400) per month for Executive Management and Administrative Management employees based on operational necessity; WHEREAS, the auto allowance for the City Manager and City Attorney is five hundred dollars ($500) per month, and the auto allowance for the City Clerk is two hundred dollars ($200) per month, as stipulated in their respective Employment Agreements; and WHEREAS, to ensure there is no ambiguity or conflict between the governing documents concerning auto allowance for the City Manager, City Attorney, and City Clerk and the Key and Management Compensation Plan, while still acknowledging that Sections 16-115 Resolution No. 2017 - Page 2 of 3 500 and 600 of the Charter of the City of Newport Beach expressly provide that the City Manager, City Attorney, and City Clerk directly serve at the pleasure of the City Council and are therefore bound by the terms of their respective Employment Agreements, the City Council desires to authorize auto allowances as set forth in the body of this resolution. 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 Clerk shall be $98,003 to $147,005 annually. Section 3: The auto allowance for the City Manager and City Attorney shall be five hundred dollars ($500) per month. Section 4: The auto allowance for the City Clerk shall be two hundred dollars ($200) per month. Section 5: Any resolution or action in conflict herewith, whether by minute action or resolution of the City Council heretofore approved, is hereby repealed. Section 6: The City's Salary Schedule shall be modified to be consistent with this resolution. Section 7: 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 8: 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. 16-116 Resolution No. 2017 - Page 3 of 3 Section 9: 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 , 2017. Kevin Muldoon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney 16-117