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HomeMy WebLinkAbout2018-22 - Approving and Authorizing the Mayor to Execute the Sixth Amended and Restated Employment Agreement Between the City of Newport Beach and Dave KiffRESOLUTION NO. 2018-22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND DAVE KIFF, CITY MANAGER WHEREAS, Newport Beach Charter Article V establishes provisions regarding the compensation, powers, and duties of the City Manager of the City of Newport Beach ("City"), which is a position appointed by the City Council; WHEREAS, the specific terms and conditions of the City Manager's employment are defined by his employment agreement. Certain other benefits for the City Manager, including cafeteria allowances, paid leaves, disability, and life insurance, are tied to the terms of the prevailing Key and Management Compensation Plan; WHEREAS, on September 12, 2009, the City Council appointed Dave Kiff as City Manager, and Mr. Kiff has continuously been employed as City Manager since that date. Since his initial appointment, the terms and conditions of Mr. Kiff's employment as City Manager have been amended and restated five times, with the City Council most recently approving a Fifth Amended and Restated Employment Agreement on April 25, 2017; WHEREAS, Mr. Kiff recently announced his plans to retire after twenty years with the City. The Sixth Amended and Restated Employment Agreement, attached hereto as Exhibit "A" and incorporated herein by this reference, reflects the terms and conditions under which the City and Mr. Kiff intend and desire to continue Mr. Kiff's employment until his retirement date; and WHEREAS, by adopting this resolution, the City Council intends to approve and authorize the Mayor to execute the Sixth Amended and Restated Employment Agreement with Mr. Kiff. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby approve and authorize the Mayor to execute the attached Sixth Amended and Restated Employment Agreement with Mr. Kiff. Section 2: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 3: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Resolution No. 2018-22 Page 2 of 2 Section 4: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: 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 10th day of April, 2018. ATTEST: Ifr Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. AttorneyCity '1Gl6� r•, Marshall "Duffy" Duffield Mayor Attachment(s): Sixth Amended and Restated Employment Agreement SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY MANAGER This SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 10, 2018 ("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 Fifth Amended and Restated Employment Agreement dated April 25, 2017 ("Fifth Amended Agreement"). The term of the Fifth Amended Agreement expires on April 24, 2019. C. Employee informed the Mayor for the City of Newport Beach of his desire to separate from employment with the City in the near future. In exchange for the promises and provisions contained herein, Employee and the City mutually agreed that his employment with the City would terminate effective August 31, 2018, rather than on April 24, 2019 as contemplated by the Fifth Amended Agreement. To that end and in conformance with the parties discussions, the City publically announced Employee's intention to separate from the City effective August 31, 2018. D. The Parties mutually agree that this Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment until August 31, 2018, and thereafter amicably part ways in a manner mutually beneficial to both Employee and the City. Except as Page 1 expressly provided herein, the Parties agree that there are no other agreements between them, oral, written or implied. E. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that, except as expressly provided herein, upon execution of this Agreement, any prior Employment Agreements shall have no force or effect. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term This Agreement shall become effective April 10, 2018. The Parties have mutually agreed that Employee's employment shall conclude on August 31, 2018, which shall be deemed Employee's separation date for purposes of employment with the City. 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 ("City Manager Duties"). 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 continue 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 Page 2 required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual Base Salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the Base Salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer, 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. Page 3 B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the current rate of 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 use up to 80 (eighty) hours of paid Administrative Leave each calendar year. Administrative Leave will not accrue from calendar year to calendar year and must be used each calendar year or no additional entitlement shall arise or occur. Upon separation, Employee shall be entitled to payment of any hours remaining of the 80 (eighty) entitled hours that were not used in the then current calendar year. 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. Deferred Compensation. 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. Additionally, in exchange for the releases contained in the General Release Agreement attached hereto as Exhibit "A", within ten (10) business days following the effective date of the General Release Agreement the City shall make a one-time deferred compensation contribution in the amount of Page 4 twenty thousand dollars ($20,000) to Employee's account in Employer's approved deferred compensation plan or if that contribution exceeds allowable contribution limits then the balance shall be paid in a lump sum payment to Employee. 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. 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. Attorneys' Fees & Costs. The City shall reimburse Employee for the reasonable legal fees and costs incurred by Employee for the preparation of this Agreement, up to $5,000. K. PERS. Employee contributes thirteen percent (13%) of compensation earnable towards Employee's retirement benefit, which is designated as follows: 8% of Employee/Members total PERSable salary as the Employee/Member Page 5 Contribution; and 2.42% and 2.58% of the Employer Contribution Rate 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. B. 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. Page 6 C. 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 (CMA), 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. D. 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. E. 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 Page 7 prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with Cause (as defined below), and with or without notice. Employer shall pay Employee for all services through the effective date of separation and Employee shall have no right to any additional compensation or payment, except as provided in Section 7, below. B. This Agreement provides for Employee's employment with the City until August 31, 2018, and Employee may not be terminated, without cause, prior to that date. However, upon the appointment of a new City Manager or Acting City Manager, by the City Council, Employee shall be relieved of all City Manager Duties and placed on paid and benefited Administrative Leave until August 31, 2018. Also, the City Council may, in their sole discretion, elect at any time to place Employee on paid and benefited Administrative Leave until August 31, 2018. While on paid and benefited Administrative Leave, Employee shall continue to have a duty to respond to questions from the City and provide assistance as required by the new City Manager or Acting City Manager, but shall not do so in his official capacity as City Manager, having been relieved of all official duties while on such leave. C. 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, including Employee's right to the one-time lump sum payment of eighty-four thousand dollars ($84,000.00) as described in Section 7(B) of this Agreement. Page 8 SECTION 7: General Release Agreement and Final General Release Agreement; Termination for Cause A. General Release Agreement. In consideration for the releases and waivers contained in the General Release Agreement attached hereto as Exhibit "A", the City shall make a one-time deferred compensation contribution in the amount of twenty thousand dollars ($20,000) to Employee's account in the City's approved deferred compensation plan, or a one-time cash payment to Employee in the amount of twenty thousand dollars ($20,000) in the event such contribution would exceed IRS contribution limits. Such contribution shall be made within ten (10) business days following the effective date of the General Release Agreement. In the event Employee does not execute the General Release Agreement by April 4, 2018, or revokes the General Release Agreement within seven (7) days of his execution of the same such that it is of no force and effect, then this Agreement shall also be null and void and of no further force and effect. In such event, the Fifth Amended Agreement shall be considered Employee's operative employment agreement. B. Final General Release Agreement. Within five (5) business days following the conclusion of Employee's employment with the City on August 31, 2018, Employee shall execute the Final General Release Agreement attached hereto as Exhibit B. In consideration for the releases and waivers contained in the Final General Release Agreement and in lieu of any form of severance payment contemplated in the Fifth Amended Agreement, the City will provide Employee a one-time lump sum payment in the amount of eighty-four thousand dollars ($84,000.00) within ten (10) business days following the effective date of the Final General Release Agreement ("Final Compensation Payment"). Page 9 C. 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 the Final Compensation Payment. 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; or 4. Willful abandonment of duties. D. 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. E. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to the Final Compensation Payment as described in Section 7(B) of this Agreement. F. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused sick leave, special sick leave, as well as any accrued but unused Flex Leave and unused administrative leave for the current calendar year. Page 10 SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours. SECTION 9: Confidentiality and Non -Disparagement A. Employee acknowledges that in the course of his employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information"). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. Page 11 B. City and Employee agree that for two years following the last signature on this Agreement, no member of the City Council, or the City Management Staff on the one hand, nor the Employee on the other hand, shall make any written, oral or electronic statement about one of the others to any member of the public, the press, or any City employee, that disparages him or her or harms his or her reputation in any way. Each person bound by this provision retains the right to make any truthful statement. The term "City Management Staff," as used in this Section 9.6. is defined to include any City Manager, Acting or Interim City Manager, Deputy or Assistant City Manager, Assistant to the City Manager, and all Department Heads, including the City Attorney. 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 Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such Page 12 independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. (Cal. Govt. Code §§ 995, at 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 13 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, except as expressly provided herein. 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 and Venue: 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. Any litigation related to this Agreement shall be venued in the County of Orange, State of California. Page 14 D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this Agreement. (Signatures on Following Page) Page 15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation M Marshall "Duffy" Duffield, Mayor APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: /I �— C - #c-,1 Aaron C. Harp, City Attorney Date: If f C.( .1 l ATTEST: By: Leilani Brown, City Clerk Date: EMPLOYEE, David Kiff, An Individual Davi Kiff Date:_ _4141 Ig [End of Signatures] Page 16 EXHIBIT "A" GENERAL RELEASE AGREEMENT 1. PARTIES This General Release Agreement (hereinafter referred to as the "AGREEMENT") is entered into by and between the City of Newport Beach, a charter city and municipal corporation (hereinafter referred to as "THE CITY"), and DAVID KIFF, an individual (hereinafter referred to as "EMPLOYEE"). 2. RECITALS 2.1. EMPLOYEE was hired by THE CITY as an at -will city manager effective on or about September 12, 2009 serving at the pleasure of the City Council of THE CITY pursuant to a written employment contract. EMPLOYEE is over 40 years of age. 2.2. The written employment contract governing the terms and conditions of EMPLOYEE's employment was amended from time to time during EMPLOYEE's tenure as city manager. The Fifth Amended and Restated Employment Agreement ("FIFTH AMENDED AGREEMENT") became effective April 25, 2017. 2.3. The Sixth Amended and Restated Employment Agreement ("THE CONTRACT") became effective April 10, 2018. A copy of THE CONTRACT is attached hereto as Exhibit "A". 2.4. Pursuant to THE CONTRACT, THE CITY and EMPLOYEE have mutually agreed to amicably part ways in a manner mutually beneficial to both EMPLOYEE and THE CITY, such that EMPLOYEE's final day of employment with THE CITY shall be August 31, 2018. To effectuate an amicable conclusion of EMPLOYEE's employment with THE CITY on August 31, 2018, THE CITY and EMPLOYEE have agreed to enter into this AGREEMENT whereby EMPLOYEE receives a one-time deferred compensation contribution in the amount of twenty thousand dollars ($20,000) (as described in Section 3 below) in exchange for executing a general release and waiver of any and all claims that EMPLOYEE may have to date against THE CITY, including but not limited to its elected and non -elected officials, employees, attorneys, and agents. 2.5. In accordance with this AGREEMENT and with applicable state and federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post -employment rights, including but not limited to, EMPLOYEE's rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). 3. CONSIDERATION 3.1. In exchange for the waivers and releases set forth herein, THE CITY shall provide to EMPLOYEE a one-time deferred compensation contribution in the amount of twenty thousand dollars ($20,000) to EMPLOYEE's account in THE CITY's approved deferred compensation plan or if that contribution exceeds allowable contribution limits then the balance shall be paid in a lump sum payment to Employee within ten (10) business days after the EFFECTIVE DATE (as defined below) of this AGREEMENT. The deferred compensation contribution shall be subject to applicable state and federal withholdings as determined appropriate by THE CITY. 3.2 In exchange for the deferred compensation contribution and/or lump sum payment related thereto as provided for herein, EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the beginning of time up to and including the date of EMPLOYEE's execution of this AGREEMENT (hereinafter referred to collectively as "CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims based upon any alleged breach of THE CONTRACT or any other agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act, or any claim or cause of action including, but not limited to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military and veteran status, or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code §§12900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human rights, civil rights, or employment discrimination or employee rights statute, rule, or regulation. Nothing herein shall be interpreted as a release or waiver of any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from participating in any claims or administrative action brought by a state or federal agency. Furthermore, nothing herein shall be interpreted as a release or waiver of the THE CITY's statutory obligations relative to providing defense and indemnification of public employees, if any, including but not limited to Government Code Sections 825-825.6 and Sections 995- 996.6. 3.3 For valuable consideration, the receipt and adequacy of which are hereby acknowledged, THE CITY hereby releases, acquits, and forever discharges EMPLOYEE from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which THE CITY now has or may acquire in the future, or which THE CITY ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at anytime from the beginning of time up to and including the date of THE CITY's execution of this AGREEMENT (hereinafter referred to collectively as "CITY CLAIMS"), without regard to whether such CITY CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. 4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual's employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et seq., Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this AGREEMENT, EMPLOYEE acknowledges that EMPLOYEE knowingly and voluntarily, for just compensation in addition to anything of value to which EMPLOYEE was already entitled, waives and releases any rights he may have under the ADEA and/or OWBPA. EMPLOYEE further acknowledges that EMPLOYEE has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: EMPLOYEE; (a) This waiver/release is written in a manner understood by (b) EMPLOYEE is aware of, and/or has been advised of, EMPLOYEE's rights under the ADEA and OWBPA, and of the legal significance of EMPLOYEE's waiver of any possible claims EMPLOYEE currently may have under the ADEA, OWBPA and/or similar age discrimination laws; (c) EMPLOYEE is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this AGREEMENT and the waiver and release of any rights EMPLOYEE may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of EMPLOYEE's own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) days; (d) The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE of this AGREEMENT; (e) EMPLOYEE has been advised by this writing that EMPLOYEE should consult with an attorney prior to executing this AGREEMENT; (f) EMPLOYEE has discussed this waiver and release with, and been advised with respect thereto by, EMPLOYEE's counsel of choice or at least had the opportunity to do so, and EMPLOYEE represents by signing this AGREEMENT that EMPLOYEE does not need any additional time within which to review and consider this AGREEMENT; (g) EMPLOYEE has seven (7) days following EMPLOYEE's execution of this AGREEMENT to revoke the AGREEMENT; (h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby revoke my acceptance of our Agreement of Severance and General Release;" and (i) This AGREEMENT shall not be effective until all parties have signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution of same ("EFFECTIVE DATE"). 5. UNKNOWN CLAIMS- WAIVER OF CIVIL CODE SECTION 1542 In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE and THE CITY understand that California Civil Code section 1542 reads as follows: "General Release --Claims Extinguished" "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." EMPLOYEE and THE CITY hereby waive the protection of California Civil Code section 1542. tyQA(i EMPLOYEE Initials THE CITY Initials 6. WAIVER OF ADDITIONAL CLAIMS EMPLOYEE hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above. 7. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each other party as follows: 7.1. Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of this AGREEMENT and of its legal effect. 7.2. No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other party in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT. 7.3. Independent Investigation: Each party to this AGREEMENT has made such investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters pertaining thereto, as it deems necessary. 7.4. Mistake Waived: In entering into this AGREEMENT, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever. 7.5. Later Discovery: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that EMPLOYEE fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees that EMPLOYEE shall be exclusively liable for the payment of all taxes for which EMPLOYEE is responsible, if any, as a result of EMPLOYEE's receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT. 7.7. No Pending Claims and/or Actions: EMPLOYEE represents that EMPLOYEE has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or federal agency or court; that EMPLOYEE will not do so at any time hereafter for any claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where ever filed, EMPLOYEE will request such agency or court to withdraw from the matter forthwith. Nothing herein shall be interpreted as a release or waiver of any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from participating in any claims or administrative action brought by a state or federal agency. 7.8. Ownership of Claims: EMPLOYEE represents and warrants as a material term of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE further warrants and represents that none of the CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity. 7.9. Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this AGREEMENT, the prevailing party shall not be entitled to reasonable attorneys' fees and costs. 7.10. Authority: Each party represents to the other that it has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT to which they are a party or by which they are bound by entering into this AGREEMENT. The parties represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed. 8. MISCELLANEOUS 8.1. No Admission: Nothing contained herein shall be construed as an admission by THE CITY of any liability of any kind. 8.2. Governing Law and Venue: This AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California. Any litigation related to this AGREEMENT shall be venued in the County of Orange, State of California. 8.3. Full Integration: This AGREEMENT is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This AGREEMENT may be amended only by a further agreement in writing, signed by the parties hereto. 8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest. 8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the parties agree that same shall not be construed against any party. 8.6. Severabilitv: In the event that any term, covenant, condition, provision or agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement and the remainder of this AGREEMENT shall still be in full force and effect. 8.7. Titles: The titles included in this AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT. 8.8. Counterparts: This AGREEMENT may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective as to all parties. , 8.9. Notice: Any and all notices given to any party under this AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given and/or received on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: At EMPLOYEE's home address on file with THE CITY. As to THE CITY: City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has signed and executed this AGREEMENT, and the attorneys for THE CITY and EMPLOYEE, if any, have approved as to form as of the dates written below. DATED: 41 q1 It EMPLOYEE By: David Kiff DATED; ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM: THE CITY m Aaron Harp, City Attorney EXECUTIVE LAW GROUP, a R. CratR Scott THE CITY Marshall "Duffy" Duffield, Mayor EXHIBIT "B" FINAL GENERAL RELEASE AGREEMENT 1. PARTIES This Final General Release Agreement (hereinafter referred to as the "AGREEMENT") is entered into by and between the City of Newport Beach, a charter city and municipal corporation (hereinafter referred to as "THE CITY"), and DAVID KIFF, an individual (hereinafter referred to as "EMPLOYEE"). 2. RECITALS 2.1. EMPLOYEE was hired by THE CITY as an at -will city manager effective on or about September 12, 2009 serving at the pleasure of the City Council of THE CITY pursuant to a written employment contract. EMPLOYEE is over 40 years of age. 2.2. The written employment contract governing the terms and conditions of EMPLOYEE's employment was amended from time to time during EMPLOYEE's tenure as city manager. The Fifth Amended and Restated Employment Agreement ("FIFTH AMENDED AGREEMENT") became effective April 25, 2017. 2.3. The Sixth Amended and Restated Employment Agreement ("THE CONTRACT") became effective April 10, 2018. A copy of the Sixth Amended and Restated Employment Agreement is attached hereto as Exhibit "A". Under the terms of THE CONTRACT, THE CITY and EMPLOYEE agreed that in order to effectuate an amicable conclusion to EMPLOYEE's employment with THE CITY on August 31, 2018, THE CITY would provide EMPLOYEE a one-time deferred compensation contribution in the amount of twenty thousand dollars ($20,000) and/or lump sum payment related thereto in exchange for certain releases contained in a General Release Agreement ("GENERAL RELEASE AGREEMENT"). 2.4. THE CITY and EMPLOYEE further agreed under THE CONTRACT that in lieu of any form of severance in exchange for certain releases as provided for in the FIFTH AMENDED AGREEMENT, the conclusion of EMPLOYEE's employment with THE CITY would instead be subject to the terms and conditions of the GENERAL RELEASE AGREEMENT and this AGREEMENT. 2.5. Pursuant to THE CONTRACT, THE CITY and EMPLOYEE mutually agreed to amicably part ways in a manner mutually beneficial to both EMPLOYEE and THE CITY, such that EMPLOYEE's final day of employment with THE CITY is August 31, 2018. To effectuate an amicable conclusion of EMPLOYEE's employment with THE CITY on August 31, 2018, THE CITY and EMPLOYEE desire to enter into an agreement whereby EMPLOYEE receives a one-time lump sum payment in the amount of eighty-four thousand dollars ($84,000.00) in exchange for executing this AGREEMENT which contains a general release and waiver of any and all claims that EMPLOYEE may have against THE CITY, including but not limited to its elected and non -elected officials, employees, attorneys, and agents. Accordingly, the parties hereto intend by this AGREEMENT to mutually conclude any and all employment relationships between THE CITY and EMPLOYEE by means of EMPLOYEE's separation effective August 31, 2018. This AGREEMENT sets forth the full and complete terms and conditions concluding EMPLOYEE's employment relationship with the CITY and any obligations related thereto, including any provided under THE CONTRACT. 2.6. In accordance with this AGREEMENT and with applicable state and federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post -employment rights, including but not limited to, EMPLOYEE's rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). 3. CONSIDERATION AND MUTUAL RELEASES 3.1 EMPLOYEE shall receive payment to him at the time of his separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or all other wage compensation/benefits owed to EMPLOYEE upon separation of employment, as required by state, federal or municipal law or THE CONTRACT or any other agreement with THE CITY. 3.2. In exchange for the waivers and releases set forth herein, and in lieu of any form of severance contemplated in the FIFTH AMENDED AGREEMENT, THE CITY shall cause to be paid to EMPLOYEE a one-time lump sum payment of eighty-four thousand dollars and no cents ($84,000.00), as set forth in Section 7(B) of THE CONTRACT in the form of a check made payable to EMPLOYEE to be mailed to EMPLOYEE at EMPLOYEE's home address via certified mail return receipt requested within ten (10) business days after the EFFECTIVE DATE (as defined below) of this AGREEMENT. The lump sum payment shall be subject to applicable state and federal withholdings as determined appropriate by THE CITY. 3.3 In exchange for the lump sum payment provided for herein, EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the beginning of time up to and including the date of EMPLOYEE'S execution of this AGREEMENT (hereinafter referred to collectively as "CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims based upon any alleged breach of THE CONTRACT or any other agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act, or any claim or cause of action including, but not limited to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military and veteran status, or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code §§12900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human rights, civil rights, or employment discrimination or employee rights statute, rule, or regulation. Nothing herein shall be interpreted as a release or waiver of any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from participating in any claims or administrative action brought by a state or federal agency. Furthermore, nothing herein shall be interpreted as a release or waiver of the THE CITY's statutory obligations relative to providing defense and indemnification of public employees, if any, including but not limited to Government Code Sections 825-825.6 and Sections 995- 996.6. 3.4 For valuable consideration, the receipt and adequacy of which are hereby acknowledged, THE CITY hereby releases, acquits, and forever discharges EMPLOYEE from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which THE CITY now has or may acquire in the future, or which THE CITY ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the beginning of time up to and including the date of THE CITY's execution of this AGREEMENT (hereinafter referred to collectively as "CITY CLAIMS"), without regard to whether such CITY CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. 4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual's employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et seq., Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this AGREEMENT, EMPLOYEE acknowledges that EMPLOYEE knowingly and voluntarily, for just compensation in addition to anything of value to which EMPLOYEE was already entitled, waives and releases any rights he may have under the ADEA and/or OWBPA. EMPLOYEE further acknowledges that EMPLOYEE has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: (a) This waiver/release is written in a manner understood by EMPLOYEE; (b) EMPLOYEE is aware of, and/or has been advised of, EMPLOYEE's rights under the ADEA and OWBPA, and of the legal significance of EMPLOYEE's waiver of any possible claims EMPLOYEE currently may have under the ADEA, OWBPA and/or similar age discrimination laws; (c) EMPLOYEE is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this AGREEMENT and the waiver and release of any rights EMPLOYEE may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of EMPLOYEE's own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) days; (d) The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE of this AGREEMENT; (e) EMPLOYEE has been advised by this writing that EMPLOYEE should consult with an attorneyrp for to executing this AGREEMENT; (f) EMPLOYEE has discussed this waiver and release with, and been advised with respect thereto by, EMPLOYEE's counsel of choice or at least had the opportunity to do so, and EMPLOYEE represents by signing this AGREEMENT that EMPLOYEE does not need any additional time within which to review and consider this AGREEMENT; (g) EMPLOYEE has seven (7) days following EMPLOYEE's execution of this AGREEMENT to revoke the AGREEMENT; (h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby revoke my acceptance of our Agreement of Severance and General Release;" and (i) This AGREEMENT shall not be effective until all parties have signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution of same ("EFFECTIVE DATE"). S. UNKNOWN CLAIMS- WAIVER OF CIVIL CODE SECTION 1542 In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE and THE CITY understand that California Civil Code section 1542 reads as follows: "General Release --Claims Extinguished" "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." EMPLOYEE and THE CITY hereby waive the protection of California Civil Code section 1542. EMPLOYEE Initials THE CITY Initials 6. WAIVER OF ADDITIONAL CLAIMS EMPLOYEE hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above. 7. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each other party as follows: 7.1. Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of this AGREEMENT and of its legal effect. 7.2. No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other party in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT. 7.3. Independent Investigation: Each party to this AGREEMENT has made such investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters pertaining thereto, as it deems necessary. 7.4. Mistake Waived: In entering into this AGREEMENT, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever. 7.5. Later Discovery: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that EMPLOYEE fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees that EMPLOYEE shall be exclusively liable for the payment of all taxes for which EMPLOYEE is responsible, if any, as a result of EMPLOYEE's receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT. 7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this AGREEMENT. Following the conclusion of EMPLOYEE's employment with THE CITY on August 31, 2018, EMPLOYEE shall provide THE CITY with consultation services (including deposition, hearing, or trial testimony) in any litigation involving THE CITY which is reasonably related to acts or occurrences transpiring during EMPLOYEE's employment. Said services shall be only be provided if requested by the City Attorney and EMPLOYEE shall be paid at a rate of $100.00 per hour, up to a maximum of $10,000.00, for any services so requested. Additionally, if EMPLOYEE relocates from the County of Orange, THE CITY shall pay for EMPLOYEE's coach air travel if THE CITY requests that EMPLOYEE attend any deposition, hearing or trial related to his employment with THE CITY. 7.8. Return of Confidential Information and Property: Prior to August 31, 2018, EMPLOYEE shall return to the City Clerk, all City keys, equipment, computer identification cards or codes, and other equipment or materials or confidential documents provided to or obtained by EMPLOYEE during the course of EMPLOYEE's employment with THE CITY. 7.9 No Pending Claims and/or Actions: EMPLOYEE represents that EMPLOYEE has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or federal agency or court; that EMPLOYEE will not do so at any time hereafter for any claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where ever filed, EMPLOYEE will request such agency or court to withdraw from the matter forthwith. Nothing herein shall be interpreted as a release or waiver of any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from participating in any claims or administrative action brought by a state or federal agency. 7.10. Ownership of Claims: EMPLOYEE represents and warrants as a material term of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE further warrants and represents that none of the CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity. 7.11 Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this AGREEMENT, the prevailing party shall not be entitled to reasonable attorneys' fees and costs. 7.12 Authority: Each party represents to the other that it has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT to which they are a party or by which they are bound by entering into this AGREEMENT. The parties represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed. 8. MISCELLANEOUS 8.1. No Admission: Nothing contained herein shall be construed as an admission by THE CITY of any liability of any kind. 8.2. Governing Law and Venue: This AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California. Any litigation related to this AGREEMENT shall be venued in the County of Orange, State of California. 8.3. Full Integration: This AGREEMENT is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This AGREEMENT may be amended only by a further agreement in writing, signed by the parties hereto. 8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest. 8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the parties agree that same shall not be construed against any party. 8.6. Severability: In the event that any term, covenant, condition, provision or agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement and the remainder of this AGREEMENT shall still be in full force and effect. 8.7. Titles: The titles included in this AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT. 8.8. Counterparts: This AGREEMENT may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective as to all parties. 8.9. Notice: Any and all notices given to any party under this AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given and/or received on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: At EMPLOYEE's home address on file with THE CITY. As to THE CITY: City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has signed and executed this AGREEMENT, and the attorneys for THE CITY and EMPLOYEE, if any, have approved as to form as of the dates written below. DATED: DATED: ATTEST: Leilani Brown, City Clerk EMPLOYEE By: David Kiff THE CITY By: Marshall "Duffy" Duffield, Mayor APPROVED AS TO FORM: THE CITY By: L::U Qz Aaron Harp, City Attorney STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2018-22 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 101h day of April, 2018; and the same was so passed and adopted by the following vote, to wit: AYES: Council Member Herdman, Council Member Kevin Muldoon, Council Member Diane Dixon, Council Member Scott Peotter, Council Member Brad Avery, Mayor Pro Tem Will O'Neill, Mayor Duffy Duffield NAYS: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 11th day of April, 2018. X�ri AW / Leilani I. Brown City Clerk Newport Beach, California