HomeMy WebLinkAboutC-7098-3 - Second Amended and Restated Employment Agreement - Chief of PoliceSECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
CITY OF NEWPORT BEACH CHIEF OF POLICE
This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of April 9, 2019 and is entered into by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city,
("Employer" or "City") and JON LEWIS, ("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 Chief of Police since April
12, 2016. Employee is currently employed under a First Amended and Restated
Employment Agreement dated on or about July 24, 2018 ("Employment
Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Amended Agreement, 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.
E. Employee is willing to accept such employment on the terms and conditions set
forth in this Agreement.
Lewis Employment Agreement Page 1
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
SECTION 1: Term and Notice of Non -Renewal
This Agreement shall become effective April 9, 2019 ("Effective Date"). Subject to City's
right to terminate Employee's employment at any time, as provided for in this Agreement,
the initial term of this Agreement is two (2) years from the Effective Date ("Initial Term").
This Agreement shall automatically be extended for an additional twelve (12) month
period unless City notifies Employee of its intent not to extend the Agreement six (6)
months prior to expiration of the Initial Term or any subsequent automatic extension of
the Initial Term. City's election not to extend this Agreement shall not entitle Employee
to Severance pursuant to Section 8 of this Agreement.
SECTION 2: No Break in Service
Employee has been continuously employed by the City since July 4, 1991. Employee's
continued employment as Chief of Police shall not constitute a break in service.
SECTION 3. Duties and Authority
Employer agrees to employ Employee as Chief of Police to exercise the powers and
authority and to perform the functions and duties of that position as specified in the
Newport Beach City Charter and Newport Beach Municipal Code ("NBMC") and all
relevant resolutions, rules, regulations, procedures, and federal and state codes, as they
currently or may in the future exist, specifically including but not limited to those set forth
in the "Police Chief' job description attached hereto as Exhibit A and incorporated herein
by this reference. Employee shall exercise such power and authority and perform such
other functions and duties, not inconsistent with this Agreement, as Employer, by the City
Manager, may legally assign.
SECTION 4: Compensation and Performance Evaluation
A. Base Salary. Employer agrees to pay Employee an annual base salary of
$238,409 (two hundred thirty-eight thousand and four hundred and nine dollars)
("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"). Employee shall be
paid on a pro -rated basis bi-weekly at the same time as other employees of the
City are paid. Employer shall also deduct sums Employee is obligated to pay
because of participation in plans or programs described in Section 5 of this
Agreement. The annual Base Salary of Employee is within the approved salary
range adopted by resolution of the City Council.
Lewis Employment Agreement Page 2
B. Employee shall receive a one-time bonus in the amount of $2,700 (two thousand,
seven hundred dollars) in the first payroll period after the complete execution of
this Agreement.
C. Employer shall pay Employee a one-time merit payment of $17.98 per paid work
day from the pay period that includes January 1, 2019 through and including March
29, 2019.
D. Adjustments to Compensation. At the time of any increase in compensation to the
base salary that the Newport Beach Police Management Association ("NBPMA")
receives pursuant to an approved Memorandum of Understanding ("MOU")
between the NBPMA and the City, Employee shall receive a Base Salary increase
in compensation equal to the lesser of: (1) the salary adjustment(s) (percentage
increase(s)) provided to unit members as set forth in the MOU between the
NBPMA and the City; or (2) a cost of living adjustment based on an increase in the
"Cost of Living" as defined Government Code Section 3511.1, as it currently exists
or may be modified in the future.
The cost of living adjustment will be calculated by comparing the last published
index number that is closest in time to the date the adjustment in compensation is
to be made, and the corresponding index number for one year earlier.'
City and Employee expressly agree that any adjustment in compensation as
provided for in this Section shall not exceed the approved salary range adopted by
resolution of the City Council.
E. Uniform Allowance. As permissible by law and subject to the provisions and
limitations under the California Public Employees Retirement Law, the City shall
report, biweekly, the value of provided uniforms at $1,350 (one thousand, three
hundred, fifty dollars) per year as special compensation. The Parties agree the
reported value of uniforms is intended to reflect clothing such as pants, shirts,
jackets, and related attire and excludes health and safety related equipment.
Employee agrees and understands that an increase in the uniform allowance will
require an amendment to the Agreement for CalPERS to consider a uniform
allowance as special compensation. If CalPERS does not agree that the original
uniform allowance or any increased allowance qualifies as special compensation,
then the City shall have no liability in this regard, no duty to appeal this
determination on Employee's behalf, and no duty to represent Employee in
proceedings related to said determination.
'(A - B)/B " 100 = i
A = Most recent index,
B = Corresponding index for one year earlier,
i = Cost of living adjustment, in percent.
Lewis Employment Agreement Page 3
F. Evaluations. Employer, by the City Manager, shall conduct annual evaluations on
or about the anniversary date of this Agreement, or consistent with that of other
Executive Management Employees.
G. 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 5: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan ("Compensation Plan"), Executive
Management category, Years of Continuous Service, 15 and over, at the rate of
9.69 hours per pay period. The amount of Employee's accrued Flex Leave may
not exceed (i.e. no longer accrue) a total of 755.82 (seven hundred fifty-five and
eighty-two hundredths) hours.
The right to sell back accumulated Flex Leave shall be consistent with the "Leave
Sellback" provision of the Compensation Plan.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan in regards to: (i) the amount of Flex
Leave accrued per pay period; (ii) the maximum allowable balance of Flex Hours
that can be accrued; (iii) provisions related to the use of Flex Leave to provide
dependent care; or (iv) Flex Leave Sellback.
B. Administrative Leave. Employee may be granted administrative leave hours, if
any, in the sole discretion of the City Manager, up to a maximum of eighty (80)
hours per calendar year. Administrative Leave hours will be credited to Employee
the first pay period in January of each calendar year. Consistent with the City's
Key and Management Compensation Plan, Administrative Leave does not accrue
and therefore has no cash value. As such it cannot be carried over from year to
year.
C. Holidays. Employee will take time -off for holidays in the same manner as
Executive Management Employees ("Regular Holidays"). The City will not report
Regular Holidays as special compensation.
D. Other Leaves. Employee shall be entitled to the same Jury Leave, Bereavement
Leave, Workers' Compensation Leave, and Medical Treatment for Industrial
Injuries Leave as received Executive Management Employees of the City, as
provided in the Compensation Plan and Employee Policy Manual ("EPM"). This
Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan or EPM in regards to these leaves.
E. Additional Benefits. Unless otherwise provided in this Agreement, Employee shall
receive the same benefits as are available to Executive Management Employees
under the Compensation Plan and/or EPM, including cafeteria benefits, LIUNA
Supplemental Pension, IRS Section 125 Flexible Spending Accounts, short-term
and long-term disability plans, life insurance plans, and deferred compensation
Lewis Employment Agreement Page 4
plans. This Agreement shall be deemed amended whenever the City Council
adopts a resolution or takes action changing these benefits under the
Compensation Plan and/or EPM.
F. Annual Physical Exam. Employee may undergo an annual physical examination
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of $1,000 (one thousand dollars).
G. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee with
a vehicle that may be used for City -related business purposes. City anticipates
that the vehicle provided to Employee may be a Chevy Tahoe, but the make and
model of the vehicle shall remain in the City's sole discretion. City shall pay for
reasonable maintenance of the vehicle and gasoline. It is contemplated by the
parties that Employee will use the vehicle principally for City -related business,
however, to the extent that Employee uses the vehicle for any incidental personal
business, Employee shall pay for gasoline for all such personal use.
H. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any of the Executive Management Employees.
Key and Management Group, Executive Management Category. Except as
expressly provided herein, Employee shall be treated as a member of the City's
Key and Management Group, Executive Management category. As such, the
benefits, terms and conditions of the Compensation Plan shall apply to Employee
as provided more specifically above, provided however, in the event of a conflict
between the provisions of this Agreement and the Compensation Plan, this
Agreement shall prevail.
Retirement - CalPERS Employee shall be eligible for the "3% at 50" retirement
formula (i.e. the same retirement formula set forth in Section 4 (D) (1) of the
"Retirement Benefits" and Tier 1 ("Legacy") portion of the current Newport Beach
Police Management (NBPMA) MOU. Employee contributes 14.6% of
compensation earnable towards Employee's retirement benefits, which is
designated as follows: 9% of Employee/Member's total PERSable salary as the
Employee/Member Contribution; and 5.6% as cost sharing of the Employer
Contribution Rate in accordance with Government Code section 20516(f).
If the City Council enters into a MOU between the City and NBPMA which provides
for the retirement contributions for members of the NBPMA in excess of 14.6%,
this Agreement shall be deemed amended and Employee shall be subject to the
same formula percentage contribution as it is applied to the members of the
NBPMA and for the same duration.
K. Supplemental Pension. Employee is a member of the LIUNA Supplemental
Pension Fund ("Plan"). Effective in the pay period which includes January 1, 2019,
the Plan will be funded exclusively by contributions from the members. The City
will not make any contributions to the Plan. In addition, as there are increases
(which typically occur annually) to the costs (whether identified as employer or
Lewis Employment Agreement Page 5
employee contributions) to fund the Plan, they will be made by Employee (i.e., the
participants in the Plan). The City is not responsible for, nor does it make any
representation regarding, the payment of benefits to Employee.
Employee cannot receive the contributed amounts directly instead of having them
paid to the Plan. Participation in the Plan will continue to be mandatory for
Employee.
Employees who leave City employment prior to vesting in the LIUNA pension plan
will have no right to the return of amounts contributed, or other recourse against
the City concerning LIUNA.
SECTION 6: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees either to pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Manager. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. Consistent with Employer's normal expense reimbursement procedures or such
other procedure as may be designated by the City Manager, Employer agrees to
budget and to reimburse or pay for reasonable costs for attendance and
participation in meetings, 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, airfare (where applicable), ground
transportation and meals. Reasonable expenses will also include the reasonable
and actual cost of lodging for meetings outside of Orange County.
C. The expenses to be budgeted and paid in this Section 6 are exclusive of
reasonable expenses related to events, participation in organizations, or
attendance at events or meetings on behalf of the City as required by the City
Manager. Employer will separately budget and pay for membership and
participation in community, civic or other organizations or events in which
Employer requires Employee to participate.
SECTION 7: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and Newport Beach Municipal
Code Chapter 2.12.020, Employee is appointed by, and serves at the pleasure of,
the City Manager. Nothing in this Agreement shall prevent, limit or otherwise
interfere with the right of Employer to terminate this Agreement and the
employment of Employee at any time, with or without cause. Employer shall pay
Employee for all services through the Effective Date of termination and Employee
Lewis Employment Agreement Page 6
shall have no right to any additional compensation or payment, except as provided
in Section 8, below. Nothing herein shall be construed to limit the rights and
obligations of City and Employee provided in the Public Safety Officers Procedural
Bill of Rights Act, codified at Government Code Section 3300, et seq. (POBRA).
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer, provided that
Employee provides a minimum of sixty (60) day's 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 per Section 8
below
SECTION 8: Severance and Benefit Payoff at Termination
A. Termination Without Cause. By providing Employee at least fourteen (14)
calendar days' prior written notice thereof, the City may terminate Employee
without cause but rather based upon management reasons such as implementing
the City's goals or policies, including but not limited to: (i) change of administration,
or (ii) incompatibility of management styles. In the event Employee is terminated
without cause, Employee expressly agrees that he shall not be entitled to any
Severance pay as the result of the termination of this Agreement except as
provided in this Section 8(A). If Employer terminates Employee without cause, and
if Employee signs, delivers to the City, and does not revoke, the Agreement of
Separation, Severance and General Release in the form attached hereto as Exhibit
B, then Employer shall pay Employee a lump sum benefit equal to six (6) months
of his then applicable Base Salary, and six (6) months of medical coverage as
provided under the Compensation Plan and/or EPM as long as Employee is
already enrolled and receiving medical coverage through the City medical benefits
plan at the time of termination.
In accordance with Government Code Section 53260 (a), in no event shall
Employee receive a cash settlement that is greater than the monthly Base Salary
of Employee multiplied by the number of months left on the unexpired term of the
Agreement.
The lump sum payment described in this Section 8(A) shall be referred to herein
as "Severance".
In order to comply with the requirements of California Government Code section
3304(c), termination by the City Manager for a reason other than cause shall be
conducted in accordance with the following procedures:
1. The City reserves the right to place Employee on paid administrative leave for
all or a portion of the fourteen (14) day written notice period provided under this
Section 8(A).
Lewis Employment Agreement Page 7
2. Employee may request to appear before the City Council prior to the effective
date of the termination to challenge the reasons for the termination or to raise
mitigating circumstances regarding the termination but in such event would
waive any right to Severance pay under this Section 8(A).
B. Termination With Cause: If Employer terminates this Agreement (thereby
terminating Employee's Employment) with cause, as determined by the City
Manager, Employee shall not be entitled to any Severance. As used in this
Agreement, cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that term is
defined in Government Code Section 53243.4;
4. Willful abandonment of duties;
5. A pattern of repeated, willful and intentional failure to carry out materially significant
and legally constituted direction of the City Manager or the policy decisions of the
City Council made by the City Council as a body; and/or
6. Any other intentional or grossly negligent action or inaction by Employee that
materially and substantially: (a) impedes or disrupts the operations of Employer or
its organizational units; (b) is detrimental to Employee or public safety; (c) violates
properly established rules or procedures of Employer causing a material and
substantial adverse impact on Employer; or (d) has a material and substantial
adverse effect on Employer's interests as clearly defined and delineated by
properly established City Council action taken by the Council as a body, policy,
regulations, ordinances, or Charter provisions of Employer.
Within five (5) days of receipt of written notice of termination for cause under this Section
8(B), Employee may submit a request in writing to the City Manager for an administrative
appeal. Such appeal shall not prohibit or otherwise delay the termination of Employee
prior to the administrative appeal. Failure to timely file such a request shall be deemed a
waiver of the right to do so.
Upon Employee's written appeal request, the City Manager shall appoint an independent
hearing officer to conduct an administrative hearing and issue an advisory decision, which
shall then be reviewed and considered and either adopted, modified or rejected by City
Council. Both the Employee and the City and their respective representatives, if any,
shall make reasonable efforts to set an administrative appeal hearing date within thirty
(30) days from the City Manager's receipt of the written appeal request.
At the administrative appeal hearing, the independent hearing officer shall be presented
with both the information and documents on which the City based its decision to terminate
as well as any information and documents on which the City based its decision to
terminate for cause as well as any information and documentation that the Employee
Lewis Employment Agreement Page 8
chooses to submit to challenge the City's information and documents to raise mitigating
circumstances for consideration by the independent hearing officer.
Within thirty (30) days of completing the hearing, the independent hearing officer shall
issue an advisory decision in writing to the City Council determining whether Employee
was properly terminated and whether there was sufficient "cause" to justify not paying
Severance under the terms of this Agreement, unless Severance was already tendered.
Following City Council's review and consideration of the advisory decision, Employee
shall be notified in writing as to whether the advisory decision will be upheld, modified or
rescinded.
C. Resignation: If Employee resigns or otherwise terminates this Agreement (thereby
terminating Employee's Employment) or if this Agreement is not renewed as
provided in Section 1, Employee shall not be entitled to any Severance.
D. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave.
SECTION 9: 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 include time
outside normal office hours (including occasional as -needed 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 the Police Department during normal business hours, Monday through
Friday.
SECTION 10: Confidentiality
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. All Confidential Information shall be promptly returned to the City
immediately upon the effective date of any severance of employment.
Lewis Employment Agreement Page 9
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
management staff, nor the Employee shall make any written, oral, or electronic
statement to any member of the public, the press, or any City employee concerning
the Employee's termination except in the form of a joint press release or statement,
which is mutually agreeable to City and Employee. The joint press release or
statement shall not contain any text or information that is disparaging to either
Party. Either Party may verbally repeat the substance of the joint press release or
statement in response to any inquiry.
C. The obligations of Employer and Employee under this Section 10 shall survive the
termination of this Agreement.
SECTION 11: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer. (Cal. Govt.
Code section 1126)
SECTION 12: Indemnification
A. To the extent mandated by the California Government Code, the City shall defend,
hold harmless, and indemnify Employee against any tort, professional liability,
claim or demand, or other legal action arising out of an alleged act or omission
occurring in the performance of Employee's services under this Agreement. This
section shall not apply to any intentional tort or crime committed by Employee, to
any action outside the course and scope of the services provided by Employee
under this Agreement, or any other intentional or malicious conduct or gross
negligence of Employee. (Cal. Govt. Code sections 825, 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 13: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
Lewis Employment Agreement Page 10
SECTION 14: Notices
A. Notice pursuant to this Agreement shall be given by depositing written notification
in the custody of the United States Postal Service, postage prepaid, addressed as
follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
100 Civic Center Drive
Newport Beach, California 92660
With a courtesy copy to:
City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Jon Lewis
at the home address then shown in Employer's files
B. Alternatively, notice required pursuant to this Agreement may be personally served
in the same manner as is applicable in civil judicial practice. Notice shall be
deemed given as of the date of personal service or as of the date of deposit of
such written notice in the course of transmission in the United States Postal
Service as provided by law.
SECTION 15: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive agreement
between Employer and Employee relating to the employment of Employee by
Employer. Any prior discussions or representations by or between the Parties are
merged into this Agreement or are otherwise rendered null and void. The Parties
by mutual written agreement may amend any provision of this Agreement during
the life of the Agreement, which amendment shall require City Council approval.
Such amendments shall be incorporated and made a part of this Agreement. The
foregoing notwithstanding, Employee acknowledges that, except as expressly
provided in this Agreement, his employment is subject to Employer's generally
applicable rules and policies pertaining to employment matters, such as those
addressing equal employment opportunity, sexual harassment and violence in the
workplace, as they currently or may in the future exist, and his employment is, and
will continue to be, at the will of the City Manager.
Lewis Employment Agreement Page 11
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives and
successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and
in accordance with the laws of the State of California and all applicable City Charter
provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable, the
remainder of this Agreement shall nevertheless remain in full force and effect. If
any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. In the event of a conflict between the
provisions of this Agreement and the City Charter, or this Agreement and the
NBMC, the City Charter or the NBMC shall prevail over this Agreement. All other
City personnel ordinances, resolutions, rules, and policies shall apply to Employee
in the same manner as applied to other Executive Management Employees.
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of, legal
advice with respect to the terms and provisions of this agreement.
[SIGNATURES ON FOLLOWING PAGE]
Lewis Employment Agreement Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates reflected below each signature.
EMPLOYER:
CITY OF NEWPORT BEACH
a California municipal corporation
Date: !y ��Ij
By: A---
race K. Leung, City Manager
APPROVED AS TO FORM:
THE ZAPPIA LAW FIRM
A Professional Corporation
Date:
— Y13 f Iq
By:
Edward P. Zapp a
Outside Counsel
ATTEST:
Date: �" �j, �3' /�
By:
Leilani 17E
City Clerk
EMPLOYEE:
JON LEWIS
an individual
Date:ya"/�
By:
�nl-ewis
;q LIF0,
Attachments: Exhibit A - Police Chief Job Description
Exhibit B - Agreement of Separation, Severance and General Release
Lewis Employment Agreement Page 13
4/1/2019
' Z
1 CITY OF NEWPORT BEACH
Established Date: Mar 2, 2010
j Revision Date: Dec 8, 2015
DEFINITION:
City of Newport Beach - Class Specification Bulletin Exhibit A
POLICE CHIEF
Bargaining Unit: Key & Management - Department Director
Safety
SALARY RANGE
$77.32 - $115.96 Hourly
$6,185.60 - $9,276.80 Biweekly
$13,402.13 - $20,099.73 Monthly
$160,825.60 - $241,196.80 Annually
Class Code:
700002B
Under direction of the City Manager, the Police Chief is responsible for the administration, development, and advancement of
the City's full service Police Department; to oversee and implement all programs and procedures related to crime prevention,
law enforcement, and related policing services; to serve as a member of the City Manager's Executive Management Team; and
to provide highly responsible and professional staff assistance to the City Manager and City Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative direction from the City Manager. Exercises
general supervision over the entire department, and direct supervision over division managers and professional/administrative
support staff.
CLASSIFICATION CHARACTERISTICS: The Police Chief is expected to exercise independent judgment, wisdom, and
innovation in establishing and administering all Police Department operations, consistent with the City Manager's expectations
and with concern for the entire City government organization. As an inspiring leader, the Police Chief must demonstrate
integrity and promote ethical standards within the department, advocate collaboration with the community, and be a team
member with the City organization. The Police Chief must be politically astute, but apolitical.
ESSENTIAL DUTIES:
The following essential functions are typical for this classification. Incumbents may not perform all of the listed functions and/or
may be required to perform additional or different functions from those below, to address business needs and changing
business practices:
• Advancing the interests of the department and the City, plans, directs, and oversees a variety of programs designed for the
maintenance of law and order and protection of life and property within the City of Newport Beach; develops comprehensive
plans to satisfy needs for departmental services to ensure the highest possible quality of life for residents and visitors;
• Ensuring the optimum and most efficient and effective use of staffing and resources, administers the overall operation of a
full service police department, including hiring, personnel administration, office operations, budgeting, and community
relations; serves as a member of the City's Executive Management Team and collaborates with other departments to resolve
city-wide problems;
Demonstrating a strong working knowledge of the legal system, confers with legal advisors and City officials regarding law
enforcement issues, provides professional and technical advice and assistance to the City Manager and City Council on matters
related to law enforcement services; represents the City as a witness in legal proceedings;
• Exhibiting exceptional communication skills, prepares and presents staff reports and related materials for City Council or
public response; resolves issues raised by City Council members, community groups, employee associations, and the public,
advocates the City's position in negotiations with various regulatory agencies to satisfy requirements;
• Building cohesive and collaborative departmental working relationships, plans, organizes, selects and supervises the work of
departmental staff; establishes accountability throughout the department; promotes employee development through staff
training and succession planning; ensures consistent application of City personnel policies and employee agreements;
• Demonstrating stewardship of public funds, directs the preparation and administration of the Police Department budget,-
participates
udget;participates in the forecast of revenue, expenses and additional funds needed; guides subordinate managers in developing and
administering fiscally responsible budgets; carries out police functions in the most cost effective ways,,
• Promoting a strong community policing program, establishes and maintains collaborative working relationships with property
owners, community groups, business districts, and the public; represents the Police Department and the City at community and
Page 14
4/1/2019 City of Newport Beach - Class Specification Bulletin
civic events,-
-
vents;
• Regularly and predictably attend work; and
• Perform related duties as assigned.
QUALIFICATIONS:
To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below
are representative of the knowledge, skill, and/or ability required.
Knowledge of:
Advanced principles and practices of crime prevention and law enforcement, including criminal investigation and identification,
patrol, traffic control, animal control, records management, care and custody of persons and property and environmental
protection;
Principles and practices of organization, administration and personnel management, and leadership of a law enforcement
agency;
Principles and techniques of municipal budget development and administration,-
Applicable
dministration;Applicable Federal, State and local laws, ordinances, codes and regulations;
Principles of supervision, training and performance evaluation',
Current technological and communication equipment and software applicable to the delivery of departmental services to
internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
Ability to:
Effectively direct, plan and organize the activities of a comprehensive city-wide full service police department;
Critically analyze problems, identify alternative solutions, and implement recommendations in support of goals;
Understand the needs of a tourism -based community and its impact on public safety,-
Promote
afety;Promote collaboration and innovation;
Provide a stabilizing influence during periods of change,-
Weigh
hange;Weigh risks and consequences and make clear decisions;
Equitably interpret and apply City policies, procedures, rules and regulations,-
Diffuse
egulations;Diffuse conflict and gain cooperation through discussion and persuasion;
Motivate, select, supervise, and evaluate personnel,
Promote fiscal responsibility in administering a departmental budget;
Develop and maintain effective partnerships with community groups;
Build loyalty within the organization and advocate accessibility and responsiveness to the community;
Effectively and persuasively communicate, both orally and in writing; and
Establish and maintain cooperative working relationships with those contacted in the course of work.
EXPERIENCE & EDUCATION AND LICENSE/CERTIFICATE:
A combination of experience and education that would likely provide the required knowledge and abilities may be qualifying. A
typical way to obtain the knowledge and abilities would be:
Experience: Seven years of increasingly responsible managerial and supervisory law enforcement experience, including having
achieved the rank of Captain, Deputy/Assistant Chief or above.
Educaiton: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration,
business administration, or a related field from an accredited colle�� or university. A Master's degree is desirable.
age
4/1/2019
City of Newport Beach - Class Specification Bulletin
License/Certificate: Due to the performance of some field duties which require the operation of a personal or City vehicle, a
valid and appropriate California driver's license and an acceptable driving record are required.
Possession of P.O.S.T. Management Certificate at time of appointment.
Possession of P.O.S.T Executive Certificate desirable.
Completion of Federal Bureau of Investigation's National Academy is desirable.
Additional Requirement: Prior to employment, the prospective candidate must successfully complete a thorough background
review, including being fingerprinted by Newport Beach Police Department.
Disaster Service Worker: In accordance with Government Code Section 3100, City of Newport Beach Employees, in the
event of a disaster, are considered disaster service workers and may be asked to respond accordingly.
Page 16
Exhibit B
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
1. PARTIES
This Agreement of Separation, Severance, and General Release (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 JON LEWIS, an individual (hereinafter referred to as "EMPLOYEE").
2. RECITALS
2.1. EMPLOYEE was hired by THE CITY as an at -will chief of police effective April
12, 2016 serving at the pleasure of the City Manager of THE CITY pursuant to a
written contract, a copy of which is attached hereto as Exhibit "A" ("THE
CONTRACT").
EMPLOYEE is currently years old.
2.2. THE CITY and EMPLOYEE desire that EMPLOYEE resign and enter into a
severance agreement whereby EMPLOYEE receives severance compensation
in exchange for executing 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 voluntary separation as of ,
2.3. 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.
2.4. 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. EMPLOYEE shall receive payment to him at the time of his voluntary 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 law or THE CONTRACT or any other agreement
with THE CITY.
3.2. In exchange for the waivers and releases set forth herein, THE CITY shall also
cause to be paid to EMPLOYEE an additional compensatory payment by means
Page 17
of severance, settlement and release in the form of a lump sum amount of
and _ cents ($ .00), as set forth in
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 thirty (30) business days after the EFFECTIVE DATE
(as defined below) of this AGREEMENT.
3.3. In exchange for the severance 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 (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 age, race, color, sex, religion, handicap or disability, national origin 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 §§12, 900 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.
Page 18
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 he 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 he 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, his rights under the ADEA
and OWBPA, and of the legal significance of his waiver of any possible claims he
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 he may have under the ADEA, the OWBPA and similar age discrimination
laws; but may, in the exercise of his 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 he 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, his counsel of choice, and that he does not need any additional
time within which to review and consider this AGREEMENT;
g) EMPLOYEE has seven (7) days following his 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
("EFFECTIVE DATE").
Page 19
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE
understands 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 favor at the
time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
EMPLOYEE hereby waives the protection of California Civil Code section 1542.
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
Page 20
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 he
shall be exclusively liable for the payment of all taxes for which he is responsible,
if any, as a result of his 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. EMPLOYEE shall
provide THE CITY with consultation services (including deposition or trial
testimony) in any litigation involving THE CITY which is reasonably related to
acts or occurrences transpiring during his employment. Said services shall be
provided as needed by THE CITY at a rate of $100.00 per hour.
7.8. Return of Confidential Information and Property: Prior to the separation date,
EMPLOYEE shall submit a written inventory of, and 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 his employment with THE CITY.
7.9. No Pending Claims and/or Actions: EMPLOYEE represents that he has not filed
any complaints or charges against THE CITY or THE CITY PARTIES with any
local, state or federal agency or court; that he 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
Page 21
such complaint or charge against THE CITY or THE CITY PARTIES on behalf
of EMPLOYEE, whenever or where ever filed, he will request such agency or
court to withdraw from the matter forthwith.
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. 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. THE CITY denies any liability in connection
with any claim and intends hereby solely to avoid potential claims and/or litigation
and buy its peace.
8.2. Governing Law: 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.
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 it 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,
Page 22
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 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 Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Page 23
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.
EMPLOYEE
DATED: By:
Jon Lewis
THE CITY
DATED: By:
ATTEST:
City Clerk
APPROVED AS TO FORM:
In
[EMPLOYEE's LAW FIRM]
In
[Counsel]
City Manager
Page 24