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HomeMy WebLinkAboutC-4578 - Employment Agreement - Police Chief, Post Retirement Temporary Employment Agreement for Interim Police Chief ServicesCo r POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT WITH JAY R. JOHNSON FOR INTERIM POLICE CHIEF SERVICES U THIS AGREEMENT FOR POST RETIREMENT TEMPORARY EMPLOYMENT ("Agreement") is made effective as of the 13th day of January 2016 ("Effective Date'), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Jay R. Johnson ("Employee") an individual (sometimes collectively referred to as "the Parties") with reference to the following: 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. City's appointment of Employee as Interim Police Chief is for a temporary and limited duration due to the vacancy of this position as of December 23, 2015. This Agreement is necessary for the continued leadership of the City's Police Department during the City's recruitment and appointment of a permanent Police Chief. C. On January 12, 2016, the City Council adopted Resolution No. 2016-8 finding that a recruitment to permanently fill the vacant position has begun and that Employee has the prior experience and specialized skills to assist the operation of the Police Department and serve as Interim Police Chief. D. In accordance with Government Code Section 21221(h), Employee's services under this Agreement are being retained on an interim basis as a result of the existing vacancy during the recruitment and appointment process for a period not to exceed one (1) year. E. The City desires to employ Employee on a provisional "at will" basis and to enter into an Agreement with Employee to serve as the Interim Police Chief ("Position") upon the terms and conditions in this Agreement. F. Employee has agreed to enter into this Agreement to serve as the Interim Police Chief during the City's recruitment process and accepts such temporary employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on January 13, 2016, and shall end no later than January 13, 2017, unless terminated earlier as provided herein. 2. SERVICES TO BE PERFORMED BY EMPLOYEE Jay R. Johnson Page 1 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, 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' 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. 3. COMPENSATION 3.1 As consideration for the performance of specified services under this Agreement Employee shall be compensated as follows: 3.1.1 Pay of One Hundred and Eleven Dollars and 031100 ($111.03) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to deduction and withholding of any all sums required for federal or state income tax prorated and paid on Citys normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). 3.1.2 $111.03 shall be considered just compensation and Employee will not receive any additional benefits or compensation in lieu of benefits or other form of compensation in addition to this hourly pay rate. 3.1.3 Employee shall maintain and submit complete records of time expended pursuant to this Agreement and corresponding to City's payroll schedule. 4. HOURS 4.1 Hours of work are not guaranteed. 4.2 It is expressly understood that Employee is a nonexempt Employee and employment is for a temporary, "at will" position. 4.3 Employee shall not work more than 960 hours each fiscal year in accordance with CalPERS post retirement employment guidelines. The Employee shall be responsible for monitoring the hours worked during these time periods to insure full compliance. 5. REIMBURSEMENT The parties recognize that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by Jay R. Johnson Page 2 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. 6. ADMINISTRATION This Agreement shall be administered by the City Manager. 7. NOTICES 7.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally or on the third business day after deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. 7.2 All notices, demands, requests or approvals from Employee to City shall be addressed to City at: City of Newport Beach Attn: Dave Kiff, City Manager 100 Civic Center Drive Newport Beach, CA 92660 With copy to: Barbara J. Salvini Human Resources Director 100 Civic Center Drive Newport Beach, CA 92660 7.3 All notices, demands, requests or approvals from City to Employee shall be addressed to Employee at: Jay R. Johnson At the home address then shown in City's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. 8. TERMINATION 8.1 Employee's employment is temporary and "at will" which means that Employee's employment with City may be terminated at any time, with or without cause, by either parry by giving 24 hours prior written notice to the other party. 8.2 This Agreement shall be terminated once the City appoints a Police Chief and the vacant position has been permanently filled. Jay R. Johnson Page 3 8.3 Employee's employment status cannot be changed except in writing on a form signed by the City Manager, the City Attorney and Employee. 8.4 Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from the temporary position with the City. 8.5 Upon termination of this Agreement, the City shall pay to Employee that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 9. EFFECT OF PRIOR AGREEMENTS As of the Effective Date, this Agreement supersedes any prior agreement between the City and the Employee 10. CONFIDENTIALITY Employee shall hold and safeguard confidential information in trust for the City and shall not, without the prior written consent of the City, misappropriate or disclose or make available to anyone for use outside the City at any time, either during his employment with the City or subsequent to the termination of his employment with the City for any reason, including, without limitation, termination by the City for cause or without cause, any confidential information, whether or not developed by Employee, except as required in the performance of Employee's duties to the City. All documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 11. CONFLICTS OF INTEREST 11.1 The Employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 11.2 If subject to the Act, Employee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. 12. OUTSIDE ACTIVITIES 12.1 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. 12.2 Employee may obtain and/or maintain employment with persons or entities other than the City or self-employment (outside employment) subject to written Jay R. Johnson Page 4 approval by the City Manager. 13. STANDARD PROVISIONS 13.1 Recitals. City and Employee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 13.2 Compliance with all Laws. Employee shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Employee shall conform to applicable City, county, state and federal laws, rules, regulations and permit regulations and be subject to approval of the Department Director and City. 13.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Job Description or any other attachments attached hereto, the terms of this Agreement shall govern. 13.4 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 13.5 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 13.7 Amendments. This Agreement may be modified or amended only by a written document executed by both the Employee and City and approved as to form by the City Attorney. 13.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 13.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 13.10 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. Jay R. Johnson Page 5 13.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates below. CITY OF NEWPORT BEACH, A California municipal corporation Date: t l i Lo l4 By: Dave iff City Manager APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: d �(I 2ff71 l0 By:`i/'-a� Aaron C. Harp, City Attorney /_til*11F Date: V 13, J By: ALS 4h—�-/ Leilani I. Brown City Clerk Temporary Employment Agreement EMPLOYEE: Jay R. Johnson Date: 1 -13 -IL --o By: C4� Jay1R. Johpr so'n [END OF SIGNATURES] Attachments: Exhibit A: Job Description Exhibit B: Post Retirement Temporary Employment Certification Jay R. Johnson Page 6 EXHIBIT A JOB DESCRIPTION Jay R. Johnson Page A-1 CITY OF NEWPORT BEACH POLICE CHIEF DEFINITION: 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. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties 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 19-14 ngs; • 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 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 civic events; and • Performs 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. Knowledae 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 Federal, State and local laws, ordinances, codes and regulations; FRatiy 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 collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; 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. 19-16 EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is 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 at least three years at the rank of Captain or above. Training: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A Master's degree or Juris Doctorate is desirable. LICENSE OR CERTIFICATE: Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Possession of a valid California driver's license. 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. Key and Management Group — Executive Management Revised BR 2/2007 Revised MWD: 2/17/2010 & CSB Approved 3/1/10 19-17 POST RETIREMENT TEMPORARY EMPLOYMENT CERTIFICATION The City of Newport Beach ("City") and Jay R. Johnson ("Employee") are contemplating entering a post-retirement temporary employment agreement ("Agreement") for interim Police Chief during the City's recruitment and appointment of a permanent Police Chief. Employee acknowledges that he will adhere to the following temporary employment requirements: • Employee shall not work more than 960 hours each fiscal year and the term of the Agreement, which term shall not exceed twelve months in accordance with CalPERS post retirement employment guidelines. • The Employee shall be responsible for monitoring the hours worked during these time periods to insure full compliance. Further, the Employee certifies the following: "I, Jay R. Johnson, certify that I have not received any unemployment insurance compensation arising out of prior employment with a public employer during the last twelve (12) months. I understand that if I am receiving a pension benefit from a public retirement system and have received any unemployment insurance compensation arising out of prior employment with a public employer during the last twelve (12) months, I am not eligible to serve or be employed by the City of Newport Beach pursuant to Government Code Section 7522.56(e)(1)." Jay R. Johnson, Temporary Employee Date Jay R. Johnson Page B-1 EXHIBIT B POST RETIREMENT TEMPORARY EMPLOYMENT CERTIFICATION The City of Newport Beach ("City") and Jay R. Johnson ("Employee") are contemplating entering a post-retirement temporary employment agreement ("Agreement") for interim Police Chief during the City's recruitment and appointment of a permanent Police Chief. Employee acknowledges that he will adhere to the following temporary employment requirements: • Employee shall not work more than 960 hours each fiscal year and the term of the Agreement, which term shall not exceed twelve months in accordance with CalPERS post retirement employment guidelines. • The Employee shall be responsible for monitoring the hours worked during these time periods to insure full compliance. Further, the Employee certifies the following: "I, Jay R. Johnson, certify that I have not received any unemployment insurance compensation arising out of prior employment with a public employer during the last twelve (12) months. I understand that if I am receiving a pension benefit from a public retirement system and have received any unemployment insurance compensation arising out of prior employment with a public employer during the last twelve (12) months, I am not eligible to serve or be employed by the City of Newport Beach pursuant to Government Code Section 7522.56(e)(1)." -az,22 - -1-13-16 Jayo. lohnson, Temporary Employee Date Jay R. Johnson Page B-1 PO CITY OF z NEWPORT BEACH Cq G�p� P City Council Staff Report January 12, 2016 Agenda Item No. 19 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager - 949-644-3001, dkiff@newportbeachca.gov PREPARED BY: Barbara J. Salvini, Human Resources Director PHONE: 949-644-3259, bsalviniC@newportbeachca.gov TITLE: Appointment of Jay Johnson as Interim Police Chief ABSTRACT: After serving the City for five years, Police Chief Jay Johnson retired effective December 24, 2015. The Council is requested to confirm the appointment of Jay Johnson as an Interim Police Chief effective January 13, 2016 in accordance with Government Code Section 21221(h). This interim appointment will coincide with the recruitment of a permanent Police Chief. RECOMMENDATION: a) Adopt Resolution No. 2016-8, A Resolution of the City Council of the City of Newport Beach, California, Confirming Appointment of Jay R. Johnson as Interim Police Chief in Accordance with Government Code Section 21221(h) (effective January 13, 2016), and Certifying the Exception to the 180 Day Wait Period Under Government Code Section 7522.56(f)(4), and certifying that the position of Police Chief is a critical position within the City structure; and b) Authorize the City Manager to execute the proposed Post Retirement Temporary Employment Agreement with Jay Johnson. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this appointment. It will be expensed to the Office of the Chief account in the Police Department, Budget Unit 1810. Jay Johnson will be compensated in accordance with Government Code Section 21221(h) which requires that he receive on an hourly basis the equivalent of the position's published monthly salary without any benefits. This will provide the City with a savings during the period when there is no full time, benefitted Police Chief. 19-1 Appointment of Jay Johnson as Interim Police Chief January 12, 2016 Page 2 DISCUSSION: The City of Newport Beach maintains a fully operational police department requiring direction from a seasoned professional with specialized skills to assist in the operation of the department. With the retirement of Jay Johnson, the department is in need of continued leadership while recruiting for the permanent position. Jay Johnson is agreeable to assisting the department during the recruitment and appointment of a permanent Police Chief. In accordance with Government Code Section 21221(h), the proposed resolution (Attachment A) states that Council may appoint a retired annuitant to an interim position without loss or interruption of benefits during recruitment for the permanent position if it is deemed to require specialized skills, provided that the appointment does not exceed 960 hours in a fiscal year or a total of twelve months. The appointment of a retired annuitant to an interim position must be made by the governing body. Pursuant to Government Code Section 7522.56(f)(4), Council is not required to waive the 180 -day wait period since Jay Johnson is a retired public safety officer hired to perform a function regularly performed by a public safety officer. The proposed contract (Attachment B) establishes that Jay Johnson shall be compensated on an hourly basis and is not eligible to receive any benefits. The contract further outlines that as a retired annuitant he cannot work more than 960 hours in a fiscal year and his appointment cannot exceed a total of twelve months. The Police Chief recruitment has already begun, and it is anticipated that the position will be filled in approximately six months. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). 19-2 Appointment of Jay Johnson as Interim Police Chief January 12, 2016 Page 3 ATTACHMENTS: Attachment A — Resolution No. 2016-8 Confirming Appointment of Jay Johnson as Interim Police Chief Attachment B — Post Retirement Temporary Employment Agreement with Jay R. Johnson for Interim Police Chief Services 19-3 ATTACHMENT A RESOLUTION NO. 2016-8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA CONFIRMING APPOINTMENT OF JAY R. JOHNSON AS INTERIM POLICE CHIEF IN ACCORDANCE WITH GOVERNMENT CODE 21221(h) AND CERTIFYING THE EXCEPTION TO THE 180 DAY WAIT PERIOD UNDER GOVERNMENT CODE SECTION 7522.56(f)(4) WHEREAS, Jay R. Johnson, Chief of Police, retired from the City of Newport Beach effective December 23, 2015 after serving in the Police Department for five years; and WHEREAS, the City is conducting an active, publicly posted recruitment to permanently fill the Police Chief position but there has not been adequate time to fill this critical position; and WHEREAS, the City requires direction and leadership of its Police Department from a seasoned professional with specialized skills to assist in the operation of the Police Department; and WHEREAS, Government Code Section 2122(h) allows a retired employee to continue to work for a public employer for a term not to exceed 960 hours per fiscal year under certain conditions and also provides for the maximum levels of compensation; and WHEREAS, Government Code Section 2122(h) requires that the interim appointment must be made by the City Council; and WHEREAS, Jay R. Johnson is a retired public safety officer as defined in Government Code Section 3301 (peace officer) and under this appointment will perform peace officer functions such that his interim appointment is exempt from the 180 -day wait period pursuant to Government Code Section 7522.56(f)(4); and WHEREAS, the City Council and Jay R. Johnson certify that Jay R. Johnson has not and will not receive a Golden Handshake or any other retirement -related incentive; and WHEREAS, this Section 21221(h) appointment shall only be made once and therefore will end no later than January 13, 2017; and 19-4 WHEREAS, a Temporary Employment Agreement between the City and Jay R. Johnson has been reviewed by this body; and WHEREAS, no matters, issues, terms or conditions related to this employment and appointment of Jay R. Johnson as Interim Police Chief have been placed on a consent calendar; and NOW THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: Section 1: The recitals provided above are true and correct and are incorporated into the operative part of this resolution. Section 2: Jay R. Johnson is a retired public safety officer as defined in Government Code Section 3301 (peace officer) who will perform peace officer functions during his appointment as Interim Police Chief Section 3: It is necessary to immediately appoint Jay R. Johnson to this position on an interim basis by virtue of his police leadership experience and specialized skills that are needed while the City's recruitment to fill the permanent Police Chief position and, therefore, this action meets the requirements set forth in Government Code 21221(h). 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 day of 12016. 19-5 Diane B. Dixon Mayor ATTEST: Leilani I. Brown City Clerk 19-6 ATTACHMENT B POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT WITH JAY R. JOHNSON FOR INTERIM POLICE CHIEF SERVICES THIS AGREEMENT FOR POST RETIREMENT TEMPORARY EMPLOYMENT ("Agreement") is made effective as of the day of , 20_ ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Jay R. Johnson ("Employee") an individual (sometimes collectively referred to as "the Parties") with reference to the following: 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. City's appointment of Employee as Interim Police Chief is for a temporary and limited duration due to the vacancy of this position as of December 23, 2015. This Agreement is necessary for the continued leadership of the City's Police Department during the City's recruitment and appointment of a permanent Police Chief. C. On , 2016, the City Council adopted Resolution No. 2016 -XXX finding that a recruitment to permanently fill the vacant position has begun and that Employee has the prior experience and specialized skills to assist the operation of the Police Department and serve as Interim Police Chief. D. In accordance with Government Code Section 21221(h), Employee's services under this Agreement are being retained on an interim basis as a result of the existing vacancy during the recruitment and appointment process for a period not to exceed one (1) year. E. The City desires to employ Employee on a provisional "at will" basis and to enter into an Agreement with Employee to serve as the Interim Police Chief ("Position") upon the terms and conditions in this Agreement. F. Employee has agreed to enter into this Agreement to serve as the Interim Police Chief during the City's recruitment process and accepts such temporary employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: The term of this Agreement shall commence on January 13, 2016, and shall end no later than January 13, 2017, unless terminated earlier as provided herein. 2. SERVICES TO BE PERFORMED BY EMPLOYEE Jay R. Johnson Page 1 19-7 ATTACHMENT B 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, 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" 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. 3. COMPENSATION 3.1 As consideration for the performance of specified services under this Agreement Employee shall be compensated as follows: 3.1.1 Pay of One Hundred and Eleven Dollars and 03/100 ($111.03) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to deduction and withholding of any all sums required for federal or state income tax prorated and paid on City's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). 3.1.2 $111.03 shall be considered just compensation and Employee will not receive any additional benefits or compensation in lieu of benefits or other form of compensation in addition to this hourly pay rate. 3.1.3 Employee shall maintain and submit complete records of time expended pursuant to this Agreement and corresponding to City's payroll schedule. 4. HOURS 4.1 Hours of work are not guaranteed. 4.2 It is expressly understood that Employee is a nonexempt Employee and employment is for a temporary, "at will" position. 4.3 Employee shall not work more than 960 hours each fiscal year in accordance with CaIPERS post retirement employment guidelines. The Employee shall be responsible for monitoring the hours worked during these time periods to insure full compliance. 5. REIMBURSEMENT The parties recognize that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by Jay R. Johnson Page 2 19-8 ATTACHMENT B 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. 6. ADMINISTRATION This Agreement shall be administered by the City Manager. 7. NOTICES 7.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally or on the third business day after deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. 7.2 All notices, demands, requests or approvals from Employee to City shall be addressed to City at: City of Newport Beach Attn: Dave Kiff, City Manager 100 Civic Center Drive Newport Beach, CA 92660 With copy to: Barbara J. Salvini Human Resources Director 100 Civic Center Drive Newport Beach, CA 92660 7.3 All notices, demands, requests or approvals from City to Employee shall be addressed to Employee at: Jay R. Johnson At the home address then shown in City's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. 8. TERMINATION 8.1 Employee's employment is temporary and "at will" which means that Employee's employment with City may be terminated at any time, with or without cause, by either party by giving 24 hours prior written notice to the other party. 8.2 This Agreement shall be terminated once the City appoints a Police Chief and the vacant position has been permanently filled. Jay R. Johnson Page 3 19-9 ATTACHMENT B 8.3 Employee's employment status cannot be changed except in writing on a form signed by the City Manager, the City Attorney and Employee. 8.4 Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from the temporary position with the City. 8.5 Upon termination of this Agreement, the City shall pay to Employee that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 9. EFFECT OF PRIOR AGREEMENTS As of the Effective Date, this Agreement supersedes any prior agreement between the City and the Employee 10. CONFIDENTIALITY Employee shall hold and safeguard confidential information in trust for the City and shall not, without the prior written consent of the City, misappropriate or disclose or make available to anyone for use outside the City at any time, either during his employment with the City or subsequent to the termination of his employment with the City for any reason, including, without limitation, termination by the City for cause or without cause, any confidential information, whether or not developed by Employee, except as required in the performance of Employee's duties to the City. All documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 11. CONFLICTS OF INTEREST 11.1 The Employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 11.2 If subject to the Act, Employee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. 12. OUTSIDE ACTIVITIES 12.1 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. 12.2 Employee may obtain and/or maintain employment with persons or entities other than the City or self-employment (outside employment) subject to written Jay R. Johnson Page 4 19-10 ATTACHMENT B approval by the City Manager. 13. STANDARD PROVISIONS 13.1 Recitals. City and Employee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 13.2 Compliance with all Laws. Employee shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Employee shall conform to applicable City, county, state and federal laws, rules, regulations and permit regulations and be subject to approval of the Department Director and City. 13.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Job Description or any other attachments attached hereto, the terms of this Agreement shall govern. 13.4 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 13.5 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 13.7 Amendments. This Agreement may be modified or amended only by a written document executed by both the Employee and City and approved as to form by the City Attorney. 13.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 13.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 13.10 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. Jay R. Johnson Page 5 19-11 13.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates below. CITY OF NEWPORT BEACH, A California municipal corporation Date: Dave Kiff City Manager APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date. L' By:5m , Aaron C. Harp, City Attorney ATTEST: Date: Leilani I. Brown City Clerk Temporary Employment Agreement EMPLOYEE: Jay R. Johnson Date: Jay R. Johnson [END OF SIGNATURES] Attachments: Exhibit A: Job Description Exhibit B: Post Retirement Temporary Employment Certification 19-12 Jay R. Johnson Page 6 ATTACHMENT B EXHIBIT A JOB DESCRIPTION Jay R. Johnson Page A-1 19-13 ATTACHMENT B CITY OF NEWPORT BEACH POLICE CHIEF DEFINITION: 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. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties • 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 19-14 ATTACHMENT B 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 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 civic events; and • Performs 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 Federal, State and local laws, ordinances, codes and regulations; 19-15 ATTACHMENT B 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 collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; 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. 19-16 ATTACHMENT B EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is 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 at least three years at the rank of Captain or above. Training: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A Master's degree or Juris Doctorate is desirable. LICENSE OR CERTIFICATE: Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Possession of a valid California driver's license. 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. Key and Management Group — Executive Management Revised BR 2/2007 Revised MWD: 2/17/2010 & CSB Approved 3/1/10 19-17 ATTACHMENT B EXHIBIT B POST RETIREMENT TEMPORARY EMPLOYMENT CERTIFICATION The City of Newport Beach ("City") and Jay R. Johnson ("Employee") are contemplating entering a post-retirement temporary employment agreement ("Agreement") for interim Police Chief during the City's recruitment and appointment of a permanent Police Chief. Employee acknowledges that he will adhere to the following temporary employment requirements: Employee shall not work more than 960 hours each fiscal year and the term of the Agreement, which term shall not exceed twelve months in accordance with CalPERS post retirement employment guidelines. The Employee shall be responsible for monitoring the hours worked during these time periods to insure full compliance. Further, the Employee certifies the following: "I, Jay R. Johnson, certify that I have not received any unemployment insurance compensation arising out of prior employment with a public employer during the last twelve (12) months. I understand that if I am receiving a pension benefit from a public retirement system and have received any unemployment insurance compensation arising out of prior employment with a public employer during the last twelve (12) months, I am not eligible to serve or be employed by the City of Newport Beach pursuant to Government Code Section 7522.56(e)(1)." Jay R. Johnson, Temporary Employee Date Jay R. Johnson Page B-1 19-18 FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of November 10, 2015 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city, , ("Employer" or "City") and JAY R. JOHNSON, ("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 July 3, 2010 under an Employment Agreement dated that same date ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede the Employment Agreement, and that upon execution of this Agreement, the Employment Agreement shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1: Term Unless sooner terminated as provided in this Agreement, this Agreement shall be effective November 10, 2015 ("Effective Date") and shall continue until Employer or Employee terminate this Agreement under the terms provided herein. SECTION 2: 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, 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' 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 3: Compensation A. Employer agrees to pay Employee an Annual Base Salary of $230,940.00 (Two Hundred and Thirty Thousand, Nine Hundred Forty Dollars and 00/100), subject to deduction and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner in which Executive Management Employees are paid. B. Uniform Allowance. Employer shall provide Employee an annual allowance of One Thousand, Three Hundred Fifty Dollars ($1,350.00) toward the cost of Employee's official Newport Beach Police Department police uniforms and related equipment, which amount shall be allocated to Employee in equal installments included in his biweekly paycheck and which shall be reported to PERS as special compensation paid to Employee. This Agreement shall be deemed amended whenever the City approves a new uniform allowance via a Memorandum of Understanding or Side Letter Agreement with the PMA. C. If Employee is required to sere as a juror, Employee shall be entitled to leave with pay and all benefits for a period of up to sixty (60) days so long as his presence is legally required. D. Employer, by the City Manager, shall conduct annual evaluations on or about July 3, or consistent with that of other management team members. SECTION 4: 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 current rate of 9.69 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed a total of 755.82 hours, and no Flex Leave shall further accrue beyond the maximum total of 755.82 hours. The right to sell back accumulated Flex Leave shall be consistent with the "Leave Sellback" provision of the Compensation Plan. Employees may use up to '/ of Flex Leave accrued per year to provide care for any member of the employee's immediate family in need of care due to illness or injury. 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) Leave Sellback. B. Administrative Leave. Employee shall be entitled to eighty (80) hours of administrative leave per calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Holidays. As has been the practice since the beginning of his employment, consistent with the Chiefs obligation to work on multiple holidays, and consistent with the Police Management Association's Holiday Pay and practices, employee shall accrue holiday time at the rate of three point seven (3.7) hours per pay period. Holiday compensation shall continue to be paid in cash along with the employee's regular bi-weekly check, and will continue to be reported to PERS as a special compensation in addition to employee's bi-weekly base salary. D. Other Leaves. Employee shall be entitled to the same Bereavement Leave, Worker's Compensation Leave, and Medical Treatment for Industrial Injuries Leave as received by members of the PMA. This Agreement shall be deemed amended whenever the City alters said leaves via a Memorandum of Understanding or Side Letter Agreement with the PMA. E. Except as expressly set forth herein, Employee shall receive the medical, dental and vision insurance benefits, LIUNA Supplemental Pension, Retiree Medical Benefits, and be entitled to participate in plans and programs such as IRS Section 125 Flexible Spending Accounts, Employee Assistance Program, short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to Executive Management employees of the City, as provided in the Compensation Plan. Specifically: 1. City has implemented an IRS qualified Cafeteria Plan for certain benefits. City's contribution towards the Cafeteria Plan for Employee shall be the equivalent of what is provided to employees within the Police Management Association (PMA) or the Key and Management group, whichever is greater. Employee shall have the option of allocating Cafeteria Plan contributions towards the City's existing medical, dental and vision insurance/programs. Unused Cafeteria Plan funds shall be payable to the employee as taxable cash back. Employee shall be allowed to change coverage in accordance with plan rules and during regular open enrollment periods. If Employee does not want to enroll in any medical plan offered by the City, Employee must provide evidence of group medical insurance coverage, and execute an opt -out agreement releasing the City from any responsibility or liability to provide medical insurance coverage, on an annual basis. 2. Employee shall be eligible to participate in the LIUNA Supplemental Pension program noted in section C (3) of the "Benefits" portion of the Compensation Plan. 3. Employee shall be eligible to participate in the Retirement Health Savings Plan or ("RHS") formerly known as the Medical Expense Reimbursement Plan (MERP) noted in section D of the "Benefits" portion of the Compensation Plan as a Category 1 employee hired after January 1, 2006. 4. City shall provide term life insurance for Employee in the face value of Fifty Thousand Dollars ($50,000.00). 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. F. Employee shall be eligible for the "3% at 50" retirement formula noted in Section 4, D, (1) of the "Benefits" portion of the PMA Memorandum of Understanding. Employee shall pay a total of 12.80% of the Employee's retirement costs (9% employee normal member contribution ["EE side"], 3.8% payment pursuant to Government Code Section 20516(f) ["ER side"] on a pre-tax basis pursuant to IRS Code Section 414(h)(2). The Parties agree that the City will not report the value of an Employer Paid Member Contribution as special compensation. G. Annual Physical Exam. Employee shall 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 One Thousand Dollars ($1,000.00). H. 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. City to Provide Cell Phone. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. J. 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. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City 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. 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 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City 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 6: 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 M 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 shall have no right to any additional compensation or payment, except as provided in Section 7, 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. SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without cause, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar day's written notice and, if Employee signs, delivers to the City, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit B, Employer shall pay Employee a lump sum benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination (collectively "Severance"). B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the 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; 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 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. C. Any dispute as to whether severance is excused under Section 7, Paragraph B above, shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under POBRA. D. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including 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 Newport Beach Police Department, Monday through Friday during normal business hours. SECTION 9: Confidentialitv 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. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Emolovment 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 With a courtesy copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Jay Johnson at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By:- Davi iff, City Manager Date:1T115 EMPLOYEE By: �, w Jay R. J nson Date: 11 —1 3 ,_ 1 APPROVED AS TO FORM Office o the City Atto ey Aaron C. Harp, City Attorney Date: II el S� ATTEST: ,4 O By: Leilani Brown, City Clerk CAL, Attachments: Exhibit A, Police Chief Job Description Exhibit B, General Release Agreement EXHIBIT A CITY OF NEWPORT BEACH POLICE CHIEF DEFINITION: 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 professionalladministrative 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 Managers 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. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties • 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 S18-16 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 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 civic events; and • Performs 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. Knowledae 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 Federal, State and local laws, ordinances, codes and regulations; S18-17 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 collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; 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. 3J EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is 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 at least three years at the rank of Captain or above. Training: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A Master's degree or Juris Doctorate is desirable. LICENSE OR CERTIFICATE: Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Possession of a valid California driver's license. 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. Key and Management Group — Executive Management Revised BR 2/2007 Revised MWD: 2/17/2010 & CSB Approved 3/1/10 S18-19 Exhibit B GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between JAY JOHNSON ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknow- ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the First Amended and Restated Employment Agreement effective November 10, 2015, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover his/its reasonable attorneys' fees and costs. Dated 20_ CITY OF NEWPORT BEACH 0 Dated: , 20 DAVID KIFF APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE In Aaron C. Harp, City Attorney Date: ATTEST: In Leilani Brown, City Clerk Date: Q ��W PpRT CITY OF s NEWPORT BEACH cIt,FORCity Council Staff Report November 10, 2015 Agenda Item No. S18 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, City Manager 949-644-3001, dkiff@newportbeachca.gov PREPARED BY: Dave Kiff, City Manager TITLE: Contract Updates: Police Chief Jay Johnson and Fire Chief Scott Poster ABSTRACT: The contracts of the Police Chief and Fire Chief should be updated and approved by the City Council to reflect the results of recent comments from Cal -PERS as to: (1) how holiday work requirements are considered (whether they are deemed special compensation); and (2) reflect a lower limit on the value of the uniform allowance reported as special compensation for Chief Poster. RECOMMENDATION: Authorize the City Manager to execute the first amended and restated contracts for the Fire Chief and Police Chief. FUNDING REQUIREMENTS: The Council's approval of the contract language does not change the assumptions we have been working within for either Chief's pay or the PERS-ability of said pay. DISCUSSION: When Police Chief Jay Johnson and Fire Chief Scott Poster were hired by the City (July 3, 2010 and February 6, 2012 respectively), the employment agreements included certain holiday pay and uniform allowance provisions. Both Chief Johnson and Chief Poster have received paid holidays (twelve per year) since their date of hire, similar to that of other city employees. S18-1 Police Chief and Fire Chief Contracts November 10, 2015 Page 2 The Police Chief's initial employment negotiations included an assumption that the Chief, like his predecessors as well as the members of his line and command staff, is generally required to work on holidays. Therefore, he selected and was assigned a payroll practice of having holiday hours apportioned per paycheck, and is directed to take time off typically using flex time or administrative leave. As with other employees in the Police Department (and prior chiefs), the holiday pay has been considered "special compensation" by the City and is considered part of his "PERS-able" wages. This was not the same understanding management had with the Fire Chief's employment. The Police Chief's holiday requirement and pay practice is consistent with the practice of the Police Management Association (PMA), whereby sergeants and lieutenants typically receive holiday compensation paid in cash along with the employee's regular bi-weekly check. The PMA MOU requires that this amount be reported to PERS as special compensation (Section 2, Part G of the MOU). A recent audit by the Cal -PERS system noted that the PERS-ability of holiday pay must be specifically designated in the Chief's contract, and approved by the City Council. A second finding in the audit related to the Fire Chief and a cap on the amount of reportable Uniform Allowance the Fire Chief receives, resulting in the need for the City to reduce the amount of allowance reported to PERS as special compensation for the Fire Chief. Therefore, this agenda item would ask for Council approval of the current practices for both chiefs, regarding holiday pay being considered as special compensation for the Police Chief (and PERS-able), and lowering the amount reported to PERS for the Uniform Allowance for the Fire Chief. The contracts are provided in modified redline — the underlined sections are sections that were changed, including: To reflect the chiefs' current salaries in base wages (older contracts had the initial pay amount). The salary noted has not gone up via the approval of this contract. 2. To address a lower level of the Uniform Allowance's PERS-ability in the Fire Chief's contract, but not to reduce the amount of Uniform Allowance he receives. S18-2 Police Chief and Fire Chief Contracts November 10, 2015 Page 3 3. To note a fixed amount of pension contributions made so that the chiefs are no longer tied to PMA or FMA actions — this is important because the PMA and FMA contracts have or may have salary increases associated with greater pension pickup, and those salary increases may put the chiefs above the salary range for the positions. Therefore, we determined that any increases in pay or pickup should be done solely via the chiefs' contract amendment each time, at which time the salary ranges could be changed. 4. To reflect new addresses of the Civic Center. ENVIRONMENTAL REVIEW: Staff recommends the City Council find that this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A - Proposed First Amended and Restated Employment Agreement — Police Chief Jay Johnson Attachment B - Proposed First Amended and Restated Employment Agreement — Fire Chief Scott Poster Attachment C - Existing Employment Agreement — Police Chief Jay Johnson Attachment D - Existing Employment Agreement — Fire Chief Scott Poster S18-3 Attachment A FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of November, 2015 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city, ("Employer" or "City") and JAY R. JOHNSON, ("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 July 3, 2010 under an Employment Agreement dated that same date ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede the Employment Agreement, and that upon execution of this Agreement, the Employment Agreement shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1: Term Unless sooner terminated as provided in this Agreement, this Agreement shall be effective November 10, 2015 ("Effective Date") and shall continue until Employer or Employee terminate this Agreement under the terms provided herein. SECTION 2: 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, 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' 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. S18-4 SECTION 3: Compensation A. Employer agrees to pay Employee an Annual Base Salary of $230,940.00 (Two Hundred and Thirty Thousand, Nine Hundred Forty Dollars and 00/100), subject to deduction and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner in which Executive Management Employees are paid. B. Uniform Allowance. Employer shall provide Employee an annual allowance of One Thousand, Three Hundred Fifty Dollars ($1,350.00) toward the cost of Employee's official Newport Beach Police Department police uniforms and related equipment, which amount shall be allocated to Employee in equal installments included in his biweekly paycheck and which shall be reported to PERS as special compensation paid to Employee. This Agreement shall be deemed amended whenever the City approves a new uniform allowance via a Memorandum of Understanding or Side Letter Agreement with the PMA. C. If Employee is required to serve as a juror, Employee shall be entitled to leave with pay and all benefits for a period of up to sixty (60) days so long as his presence is legally required. D. Employer, by the City Manager, shall conduct annual evaluations on or about July 3, or consistent with that of other management team members. SECTION 4: 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 current rate of 9.69 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed a total of 755.82 hours, and no Flex Leave shall further accrue beyond the maximum total of 755.82 hours. The right to sell back accumulated Flex Leave shall be consistent with the "Leave Sellback" provision of the Compensation Plan. Employees may use up to Y2 of Flex Leave accrued per year to provide care for S18-5 any member of the employee's immediate family in need of care due to illness or injury. 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) Leave Sellback. B. Administrative Leave. Employee shall be entitled to eighty (80) hours of administrative leave per calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Holidays. As has been the practice since the beginning of his employment, consistent with the Chief's obligation to work on multiple holidays, and consistent with the Police Management Association's Holiday Pay and practices, employee shall accrue holiday time at the rate of three point seven (3.7) hours per pay Period. Holiday compensation shall continue to be paid in cash along with the employee's regular bi-weekly check, and will continue to be reported to PERS as a special compensation in addition to employee's bi-weekly base salary. D. Other Leaves. Employee shall be entitled to the same Bereavement Leave, Worker's Compensation Leave, and Medical Treatment for Industrial Injuries Leave as received by members of the PMA. This Agreement shall be deemed amended whenever the City alters said leaves via a Memorandum of Understanding or Side Letter Agreement with the PMA. E. Except as expressly set forth herein, Employee shall receive the medical, dental and vision insurance benefits, LIUNA Supplemental Pension, Retiree Medical Benefits, and be entitled to participate in plans and programs such as IRS Section 125 Flexible Spending Accounts, Employee Assistance Program, short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to Executive Management employees of the City, as provided in the Compensation Plan. Specifically: 1. City has implemented an IRS qualified Cafeteria Plan for certain benefits. City's contribution towards the Cafeteria Plan for Employee shall be the equivalent of what is provided to employees within the Police Management Association (PMA) or the Key and Management group, whichever is greater. Employee shall have the option of allocating Cafeteria Plan contributions towards the City's existing medical, dental and vision insurance/programs. Unused Cafeteria Plan funds shall be payable to the employee as taxable cash back. Employee shall be allowed to change coverage in accordance with plan rules and during regular open enrollment periods. If Employee does not want to enroll in any medical plan offered by the City, Employee must provide evidence of group S18-6 medical insurance coverage, and execute an opt -out agreement releasing the City from any responsibility or liability to provide medical insurance coverage, on an annual basis. 2. Employee shall be eligible to participate in the LIUNA Supplemental Pension program noted in section C (3) of the "Benefits" portion of the Compensation Plan. 3. Employee shall be eligible to participate in the Retirement Health Savings Plan or ("RHS") formerly known as the Medical Expense Reimbursement Plan (MERP) noted in section D of the "Benefits" portion of the Compensation Plan as a Category 1 employee hired after January 1, 2006. 4. City shall provide term life insurance for Employee in the face value of Fifty Thousand Dollars ($50,000.00). 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. F. Employee shall be eligible for the "3% at 50" retirement formula noted in Section 4, D, (1) of the "Benefits" portion of the PMA Memorandum of Understanding. Employee shall pay a total of 12.80% of the Employee's retirement costs (9% employee normal member contribution ["EE side"l, 3.8% payment pursuant to Government Code Section 20516(f) f"ER sidel on a pre-tax basis pursuant to IRS Code Section 414(h)(2). The Parties agree that the City will not report the value of an Employer Paid Member Contribution as special compensation. G. Annual Physical Exam. Employee shall 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 One Thousand Dollars ($1,000.00). H. 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. S18-7 I. City to Provide Cell Phone. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. J. 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. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City 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. 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 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City 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 6: 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 shall have no right to any additional compensation or payment, except as provided in Section 7, 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. SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without cause, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar day's written notice and, if Employee signs, delivers to the City, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit B, Employer shall pay Employee a lump sum benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination (collectively "Severance"). B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the 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 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 S18-9 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. C. Any dispute as to whether severance is excused under Section 7, Paragraph B above, shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under POBRA. D. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including 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 Newport Beach Police Department, Monday through Friday during normal business hours. SECTION 9: 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 S18-10 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. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment S18-11 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 With a courtesy copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Jay Johnson at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. S18-12 B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE A Municipal Corporation By: By: David Kiff, City Manager Jay R. Johnson Date: Date: S18-13 APPROVED AS TO FORM Office of he City Attorney By: Ce �4 — Adrdn C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk Attachments: Exhibit A, Police Chief Job Description Exhibit B, General Release Agreement S18-14 EXHIBIT A S18-15 CITY OF NEWPORT BEACH POLICE CHIEF DEFINITION: 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. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties • 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 S18-16 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 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 civic events; and • Performs 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 Federal, State and local laws, ordinances, codes and regulations; S18-17 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 collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; 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. S18-18 EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is 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 at least three years at the rank of Captain or above. Training: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A Master's degree or Juris Doctorate is desirable. LICENSE OR CERTIFICATE: Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Possession of a valid California driver's license. 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. Key and Management Group — Executive Management Revised BR 2/2007 Revised MWD: 2/17/2010 & CSB Approved 3/1/10 S18-19 Exhibit B S18-20 GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between JAY JOHNSON ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknow- ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the First Amended and Restated Employment Agreement effective November 10, 2015, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). S18-21 Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. S18-22 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover his/its reasonable attorneys' fees and costs. Dated , 20 CITY OF NEWPORT BEACH Dated: , 20_ DAVID KIFF APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: C . Aaron C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk Date: S18-23 Attachment B FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of November 10, 2015 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city, ("Employer" or "City") and LAURENCE SCOTT POSTER, ("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 the Fire Chief since February 6, 2012 under an Employment Agreement dated that same date ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede the Employment Agreement, and that upon execution of this Agreement, the Employment Agreement shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1: Term Unless sooner terminated as provided in this Agreement, this Agreement shall be effective November 10, 2015 ("Effective Date") and shall continue until Employer or Employee terminate this Agreement under the terms provided herein. SECTION 2: Duties and Authority Employer agrees to employ Employee as Fire Chief 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, and state codes, as they currently or may in the future exist, specifically including but not limited to those set forth in the "Fire Chief' 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. S18-24 SECTION 3: Compensation A. Employer agrees to pay Employee an Annual Base Salary of Two Hundred Twenty Eight Thousand, Sixty Seven Dollars and 63/100 or $228,067.63) ("Base Sala subject to deduction and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner in which Executive Management Employees are paid; however, the Base Salary shall not be adjusted unless this Agreement is amended in writing. B. Uniform Allowance. Employer shall provide Employee an annual allowance of One Thousand, Seven Hundred Nineteen Dollars and No/Cents ($1,719.00) toward the cost of Employee's official Newport Beach Fire Department fire uniforms and related equipment, which amount shall be allocated to Employee in equal installments included in his biweekly paycheck. One Thousand, Five Hundred Nineteen Dollars and No/Cents ($1,519.00) shall be reported to PERS as special compensation paid to Employee. This Agreement shall be deemed amended whenever the City approves a new uniform allowance via a Memorandum of Understanding or Side Letter Agreement with the Fire Management Association ("FMA"). C. If Employee is required to serve as a juror, Employee shall be entitled to leave with pay and all benefits for a period of up to sixty (60) days so long as his presence is legally required. D. Employer, by the City Manager, shall conduct annual evaluations on or about February 6, or consistent with that of other management team members. SECTION 4: 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 current rate of 9.69 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed a total of 400 hours, and no Flex Leave shall further accrue beyond the maximum total of 400 hours. The right to sell back accumulated Flex Leave shall be consistent with the "Leave S18-25 Sellback" provision of the Compensation Plan. Employees may use up to Y2 of Flex Leave accrued per year to provide care for any member of the employee's immediate family in need of care due to illness or injury. 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) provisions related to the use of Flex Leave to provide dependent care; or (iii) Leave Sellback. B. Administrative Leave. Employee shall be entitled to a minimum of forty (40) hours and a maximum of eighty (80) hours of administrative leave per calendar year, as determined by the City Manager in his or her sole discretion. Administrative leave shall not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Holidays. Employee shall be entitled to eleven (11) paid holidays and one (1) floating holiday, for a total of twelve (12) paid holidays, per calendar year, as identified more specifically in section A of the Leaves provision of the Compensation Plan. D. Other Leaves. Employee shall be entitled to the same Bereavement Leave, Worker's Compensation Leave, and Medical Treatment for Industrial Injuries Leave as received by members of the FMA. This Agreement shall be deemed amended whenever the City alters said leaves via a Memorandum of Understanding or Side Letter Agreement with the FMA. E. Except as expressly set forth herein, Employee shall receive the medical, dental and vision insurance benefits, LIUNA Supplemental Pension, Retiree Medical Benefits, and be entitled to participate in plans and programs such as IRS Section 125 Flexible Spending Accounts, Employee Assistance Program, short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to Executive Management employees of the City, as provided in the Compensation Plan. Specifically: 1. City has implemented an IRS qualified Cafeteria Plan for certain benefits. City's contribution towards the Cafeteria Plan for Employee shall be the equivalent of what is provided to employees FMA or the Key and Management group, whichever is greater. Employee shall have the option of allocating Cafeteria Plan contributions towards the City's existing medical, dental and vision insurance/programs. Unused Cafeteria Plan funds shall be payable to the employee as taxable cash back. Employee shall be allowed to change coverage in accordance with plan rules and S18-26 during regular open enrollment periods. If Employee does not want to enroll in any medical plan offered by the City, Employee must provide evidence of group medical insurance coverage, and execute an opt -out agreement releasing the City from any responsibility or liability to provide medical insurance coverage, on an annual basis. 2. Employee shall be eligible to participate in the LIUNA Supplemental Pension program noted in section C (3) of the "Benefits" portion of the Compensation Plan. 3. Employee shall be eligible to participate in the Retirement Health Savings Plan or ("RHS") formerly known as the Medical Expense Reimbursement Plan ("MERP") noted in section D of the "Benefits" portion of the Compensation Plan as a Category 1 employee hired after January 1, 2006. 4. City shall provide term life insurance for Employee in the face value of Fifty Thousand Dollars ($50,000.00). 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. F. Employee shall be eligible for the "3% at 50" retirement formula noted in Section 4, C, (1) of the "Fringe Benefits" portion of the FMA Memorandum of Understanding. Employee shall pay 9% of the Employee's Normal retirement costs pursuant to Government Code Section 20678 on a pre-tax basis pursuant to IRS Code Section 414(h)(2). The Parties agree that the City will not report the value of an Employer Paid Member Contribution as special compensation. G. Annual Physical Exam. Employee shall 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 One Thousand Dollars ($1,000.00). H. 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 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. S18-27 City to Provide Cell Phone. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. J. 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. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City 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. 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 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City 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 6: 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 S18-28 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 shall have no right to any additional compensation or payment, except as provided in Section 7, below. Nothing herein shall be construed to limit the rights and obligations of City and Employee provided in the Firefighters Procedural Bill of Rights Act, codified at Government Code section 3250, et seq. ("FPBRA"). B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer. SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without cause, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar day's written notice and, if Employee signs, delivers to the City, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit B, Employer shall pay Employee a lump sum benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the effective date of termination (collectively "Severance"). B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the City Manager, Employee shall not be entitled to any severance. As used in this Agreement, cause shall mean any of the following: 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 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 S18-29 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. C. Any dispute as to whether severance is excused under Section 7, Paragraph B above, shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under FPBRA. D. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including 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 Newport Beach Fire Department, Monday through Friday during normal business hours. SECTION 9: 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 S18-30 written consent of City. All Confidential Information shall be promptly returned to the City immediately upon the effective date of any severance of employment. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. S18-31 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 With a courtesy copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Laurence Scott Poster at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently S18-32 or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE A Municipal Corporation By: David Kiff, City Manager Laurence Scott Poster Date: Date: S18-33 APPROVED AS TO FORM Office of e City Attorney By: — Aaron C. Harp, City Attorney Date: ATTEST: In Leilani Brown, City Clerk Attachments: Exhibit A, Fire Chief Job Description Exhibit B, General Release Agreement S18-34 EXHIBIT A S18-35 CITY OF NEWPORT BEACH DEFINITION: To serve as the executive director of the Fire Department; to plan, organize, direct and coordinate the fire suppression and prevention, emergency medical services, ocean safety, hazardous waste mitigation, and disaster preparedness programs and activities of the department; 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 direct supervision over management, supervisory, professional, technical and clerical personnel. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties • Plan, direct, and review the operation, services and activities of the Fire Department, including fire suppression, hazardous material mitigation, fire and life safety code compliance, emergency medical services, ocean lifeguards, citywide disaster preparedness and response; administer the overall operation of the department, including hiring, personnel administration, budgeting, and community relations; assess community service expectations and requirements and develop appropriate methods to meet service requirements; ensure the maximum utilization of manpower, equipment, and supplies; • Develop, plan and implement departmental goals and objectives; develop, recommend and administer approved policies and procedures; coordinate departmental activities with those of other City departments and outside agencies and organizations; provide professional and technical advice and assistance to the City Manager and City Council on matters related to departmental functions; Prepare and present staff reports and answer questions; • Plan, organize, select and supervise the work of departmental staff; coach, motivate, monitor, correct and evaluate staff performance; serve as the second level supervisor of staff supervised by division managers and review performance evaluations prepared by subordinate managers; develop and implement staff training programs and plans; recommend employee recognition, discipline and termination; ensure that City personnel policy and employee agreements are implemented and applied consistently within the department; S18-36 Fire Chief Page 2 City of Newport Beach • Supervise and participate in the development of the departmental budget; participate in the forecast of revenue, expenses and additional funds needed for staffing, equipment, materials, and supplies; administer the approved departmental budget and guide subordinate managers in developing and administering division and unit budgets; • Represent the City and participate in professional and public meetings and organizations, as appropriate; attend staff meetings; participate in mandated training and staff development; respond to and meet with property owners, homeowner groups, business districts, and the public; meet with, provide information and negotiate with various regulatory agencies to satisfy their requirements; represent the City as a witness in legal actions; • Oversee and direct departmental office operations; maintain appropriate records and files; coordinate workflow; prepare reports, agenda items memoranda, letters and other forms of correspondence; and • Perform related duties as assigned. QUALIFICATIONS: Knowledge of: Advanced principles and practices of fire suppression and prevention, emergency medical services, disaster preparedness, training, and ocean lifeguard programs and services; Principles and practices of organization, administration and personnel management and leadership, particularly as applied to the analysis and evaluation of programs, policies and operational needs; Principles and techniques of budget development and administration; 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. S18-37 Fire Chief Page 3 Ability to: City of Newport Beach Direct, plan and organize the activities of a comprehensive citywide Fire Department, including fire suppression and prevention, emergency medical services, disaster preparedness, personnel training, and ocean lifeguard programs and services; Analyze problems; identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals; Interpret and apply City policies, procedures, rules and regulations; Develop and administer sound departmental policies and procedures; Stay abreast of new trends, innovations, standards and guidelines in the fields of fire suppression and prevention, emergency medical services, disaster preparedness, hazardous material mitigation and ocean lifeguard services and safety; Provide leadership to a diverse work force; meeting City objectives while maintaining positive employee morale; Gain cooperation through discussion and persuasion; Select, supervise, train and evaluate personnel; Prepare and administer a departmental budget; Maintain confidentiality of medical and other privileged information; Communicate clearly and concisely, both orally and in writing; Appear for work on time; Follow directions from a supervisor; Understand and follow posted work rules and procedures; Accept constructive criticism; and Establish and maintain cooperative working relationship with those contacted in the course of work. This position may be required to work overtime hours as needed. S18-38 Fire Chief Page 4 City of Newport Beach EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is qualifying. A typical way to obtain the knowledge and abilities would be: Experience: Ten years of increasingly responsible fire suppression and prevention experience, including at least five years of responsible management and supervisory experience. Training: Completion of coursework leading to a bachelor's degree in fire administration or a closely related field. A master's degree in public administration, fire administration or a related field is desirable. LICENSE OR CERTIFICATE: Possession of, or ability to obtain, a valid and appropriate California driver's license is required. Key and Management Group — Executive Management Revised 10/31/02 S18-39 Exhibit B S18-40 GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between LAURENCE SCOTT POSTER ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknow- ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the First Amended and Restated Employment Agreement effective November 10, 2015, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). S18-41 Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. S18-42 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover his/its reasonable attorneys' fees and costs. Dated .20 CITY OF NEWPORT BEACH LM Dated: , 20_ DAVID KIFF APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE C B -1Y: Aaron C. Harp, City Attorney Date: /-1lkr**f By: Leilani Brown, City Clerk Date: S18-43 Attachment C EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of July 3, 2010 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city, ("Employer" or "City") and JAY R. JOHNSON, ("Employee") an individual. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of Califomia and the Charter of City. B. Pursuant to Sections 504(a) and 600 of the City Charter, and in accordance with Newport Beach Municipal Code ("NBMC") section 2.24.100, the City Manager has directed an open recruitment and screened all qualified applicants and other qualified persons known by the City Manager to be available for the position of Chief of Police. C. Following an open recruitment and an extensive competitive examination, interviewing, and screening process of numerous candidates, the City Manager believes Employee to be the best qualified on the basis of executive and administrative qualifications, with special reference to the experience and knowledge of accepted practice with respect to the duties of the Chief of Police as contemplated by and in conformity with NBMC section 2.24.100 and Civil Service Board Rules & Regulations ("CSBR&R") section 701. D. The City desires to employ Employee as Chief of Police and to enter into an Agreement with Employee upon the terms and conditions in this Agreement. E. Employee is willing to accept such employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1: Term Unless sooner terminated as provided in this Agreement, this Agreement shall be effective from July 3, 2010 ("Effective Date") and shall continue until Employer or Employee terminate this Agreement under the terms provided herein. SECTION 2: 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, 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 description attached hereto as Exhibit A and incorporated herein by this reference. Employee shalt 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 3: Compensation A. Effective July 3, 2010, Employer agrees to pay Employee an Annual Base Salary of $204,500.00 (Two Hundred and Four Thousand, Five Hundred Dollars). In the event that the Newport Beach Police Management Association ("PMA") agrees to a pre-tax payroll deduction for retirement contribution, that deduction shall apply to Employee in the same percentage of base pay as it does to PMA employees and for the same duration. This deduction from Employee's Annual Base Salary is contemplated as an offset to a portion of the Employee's share paid by the City to the California Public Employee Retirement System ("PERS" or "CaIPERS") for the "3% at 50" retirement plan. This pre-tax payroll deduction is made pursuant to IRS Code Section 414(h)(2). As currently contemplated, the deduction is proposed at three and one-half percent (3.5%) of Annual Base Salary. Three and one-half percent of Employee's Annual Base Salary amounts to $7,157.50 per year, resulting in an Annual Base Salary of $197,342.50 after the 3.5% pre- tax payroll deduction described herein ("Adjusted Pre -Tax Salary'), Adjusted Pre -Tax Salary shall also be subject to deduction and withholding of any and all sums required for federal or state income tax, social security tax 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 other 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. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner (but not the amount) in which management employees are paid. B. Employer, by the City Manager, shall conduct an initial evaluation of Employee's performance promptly following the six (6) month anniversary of the Effective Date of this Agreement, with annual evaluations beginning at the one year anniversary of the Effective Date of this Agreement. SECTION 4: Employee Benefits A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the current rate of 30 days per year or 9.23 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed a total of 648.18 hours, and no Flex Leave shall further accrue beyond the maximum total of 648.18 hours. The right to sell back accumulated Flex Leave Page 2 of 10 18-45 shall be consistent with the "Leave Sellback" provision of the Compensation Plan. B. Administrative Leave. Employee shall be entitled to eighty (80) hours of administrative leave per calendar year. For the 2010 calendar year only, Employee shall be entitled to forty (40) hours of administrative leave. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Holidays. Employee shall be entitled to twelve (12) paid holidays and one (1) floating holiday per calendar year, as identified more specifically in section A of the Leaves provision of the Compensation Plan. D. Additional Benefits. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to Executive Management employees of the City, as provided in the Compensation Plan. Specifically: 1. City has implemented an IRS qualified Cafeteria Plan for certain benefits as provided in section A of the "Benefits" portion of the Compensation Plan. City's contribution towards the Cafeteria Plan for Employee shall be One Thousand, Forty -Nine Dollars ($1,049.00) per month. In addition, if Employee elects to participate in a City - sponsored medical plan, Employee shall be entitled to the minimum CaIPERS participating employer contribution toward medical insurance, currently set at One Hundred and Five Dollars ($105.00) per month for the 2010 calendar year, subject to annual adjustment on January 1 of each succeeding year. 2. Employee shall be eligible for the "3% t@ 50" retirement formula noted in section C(1) of the `Benefits" portion of the Compensation Plan. 3. Employee shall be eligible to participate in the LIUNA Supplemental Pension program noted in section C(2) of the "Benefits" portion of the Compensation Plan. 4. Employee shall be eligible to participate in the Medical Expense Reimbursement Plan (MERP) noted in section D of the `Benefits" portion of the Compensation Plan as a Category 1 employee hired after January 1, 2006. 5. City shall provide term life insurance for Employee in the face value of Fifty Thousand Dollars ($50,000.00). Page 3 of 10 This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. Annual Physical Exam. Employee shall 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 One Thousand Dollars ($1,000.00). F. Uniform Allowance. Employer shall provide Employee an annual allowance of One Thousand, Three Hundred Fifty Dollars ($1,350.00) toward the cost of Employee's official Newport Beach Police Department police uniforms and related equipment, which amount shall be allocated to Employee in equal installments included in his biweekly paycheck and which shall be reported to PERS as additional compensation paid to Employee. 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. City to Provide Cell Phone. City shall provide a City -owned cell phone for Employee's use for City -related business purposes, which shall be similar to cell phones and use plans provided to City's Key and Management employees. Employee acknowledges that City may change the manner in which it provides cell phone access to Key and Management employees, which may include a change in policy to provide a cell phone allowance to such employees, and Employee understands that he will be subject to any such change in City's policy. I. Key and Management Group, Executive Management Category. Employee shall be 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. Page 4 of 10 18-47 SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City 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. 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 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City 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 6: 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 shall have no right to any additional compensation or payment, except as provided in Section 7, 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. ("POBAR"). B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer. Page 5 of 10 SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without cause, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar days written notice and shall pay Employee severance as follows: If termination is effective on or before July 3, 2012, Employer shall pay Employee a lump sum severance benefit equal to twelve (12) months of his then applicable Annual Base Salary, and provide twelve (12) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. 2. If termination is effective on July 4, 2012 or any date thereafter, Employer shall pay Employee a lump sum severance benefit equal to six (6) months of his then applicable Annual Base Salary, and provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the City Manager, Employee shall not be entitled to any severance. As used in this Agreement, cause shall mean any of the following: 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. Willful abandonment of duties; 4. 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 5. 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. Page 6 of 10 C. Any dispute as to whether severance is excused under Section 7, Paragraph B above, shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under POBAR. D. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accred but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including 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 Newport Beach Police Department, Monday through Friday during normal business hours. SECTION 9: 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. B. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. Page 7 of 10 18-50 SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. 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 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658-8915 With a courtesy copy to: City Attorney City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658-8915 Page 8 of 10 18-51 (2) EMPLOYEE: Jay Johnson at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. 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. 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 Page 9 of 10 18-52 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: C'Z' Davi iff, City Manager Date: (j:) , 3 C' — arorC5 APPROVED AS TO FORM Office of the City Attorney By: yne . Begorney champ, Assistant City Date:6 bo ATTEST: By: lc s -,C , ofy--- Leilani Brown, City Clerk A10-00033 - Johnson Employment 06.26. 10 CLEAN MDB/CM EMPLOYEE i i' ' f By: __ _ Joh Date: Co_ygd Page 10 of 10 Exhibit A Police Chief Description CITY OF NEWPORT BEACH POLICE CHIEF DEFINITION: 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. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties • 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 18-54 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 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 civic events; and • Performs 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 including criminal investigation anc control, records management, care environmental protection; of crime prevention and law enforcement, identification, patrol, traffic control, animal and custody of persons and property and 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 Federal, State and local laws, ordinances, codes and regulations; 18-55 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 collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; 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. 18-56 EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is 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 at least three years at the rank of Captain or above. Training: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A Master's degree or Juris Doctorate is desirable. LICENSE OR CERTIFICATE: Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Possession of a valid California driver's license. 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. Key and Management Group — Executive Management Revised BR 2/2007 Revised MWD: 2/17/2010 & CSB Approved 3/1/10 18-57 Attachment D EMPLOYMENT AGREEMENT FOR LAURENCE SCOTT POSTER This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of February 6, 2012 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city ("Employer" or "City") and LAURENCE SCOTT POSTER ("Employee"), an individual. 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. Pursuant to Sections 504(a) and 600 of the City Charter, and in accordance with Newport Beach Municipal Code ("NBMC") section 2.24.100, the City Manager has directed an open recruitment and screened all qualified applicants and other qualified persons known by the City Manager to be available for the position of Fire Chief. C. Following an open recruitment and an extensive competitive examination, interviewing, and screening process of numerous candidates, the City Manager believes Employee to be the best qualified on the basis of executive and administrative qualifications, with special reference to the experience and knowledge of accepted practice with respect to the duties of the Fire Chief as contemplated by and in conformity with NBMC section 2.24.100 and Civil Service Board Rules & Regulations ("CSBR&R") section 701. D. The City desires to employ Employee as its Fire Chief and to enter into an Agreement with Employee upon the terms and conditions in this Agreement. E. Employee is willing to accept such employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1: Term Unless sooner terminated as provided in this Agreement, this Agreement shall be effective from February 6, 2012 ("Effective Date") and shall continue until Employer or Employee terminate this Agreement under the terms provided herein. S18-58 SECTION 2: Duties and Authority Employer agrees to employ Employee as the Fire Chief to exercise the powers and authority and to perform the functions and duties of that position as specified in the City Charter and NBMC and all relevant resolutions, rules, regulations, procedures, and state codes, as they currently or may in the future exist, specifically including but not limited to those set forth in the "Fire Chief' 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 3: Compensation A. On the Effective Date of this Agreement, Employer agrees to pay Employee an Annual Base Salary of $204,984.00 (Two Hundred and Four Thousand, Nine Hundred Eighty Four Dollars and Zero Cents). In the event the Newport Beach Fire Management Association ("FMA") agrees to any contribution toward retirement greater than the three and one-half percent (3.5%) referenced below including, but not limited to, contributions made toward the CalPERS benefit pursuant to Government Code Section 20678, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it applies to FMA employees and for the same duration. This deduction from Employee's Annual Base Salary is contemplated as an offset to a portion of the Employee's share paid by the City to the California Public Employee Retirement System ("PERS" or "CalPERS") for the "3% at 50" retirement plan. This pre-tax payroll deduction is made pursuant to IRS Code Section 414(h)(2). The deduction is currently at three and one-half percent (3.5%) of Employees Annual Base Salary. Three and one-half percent of Employee's Annual Base Salary amounts to $7,174.44 per year, resulting in an Annual Base Salary of $197,809.56 after the 3.5% pre-tax payroll deduction described herein ("Adjusted Pre -Tax Salary"). ' Adjusted Pre -Tax Salary shall also be subject to deduction and withholding of any and all sums required for federal or state income tax, social security tax 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 other 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. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner (but not the amount) in which management employees are paid. B. Employer, by the City Manager, shall conduct an initial evaluation of Employee's performance promptly following the six (6) month anniversary of the Effective Date of this Agreement, with annual evaluations beginning at the one year anniversary of the Effective Date of this Agreement. Laurence Scott Poster Employment Agreement Page 2 S18-59 SECTION 4: Employee Benefits A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the current rate of 30 days per year or 9.23 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed a total of four hundred (400) hours, and no Flex Leave shall further accrue beyond the maximum total of four hundred (400) hours. Upon Employee's first day of employment with the City, Employee will receive a bank of one hundred (100) Flex Leave hours. The right to sell back accumulated Flex Leave shall be consistent with the Leave Sellback" provision of the Compensation Plan. B. Administrative Leave. Employee shall be entitled to a minimum of forty (40) hours and a maximum of eighty (80) hours of administrative leave per calendar year, as determined by the City Manager in his or her sole discretion. For calendar year 2012, Employee shall be allocated seventy-four (74) hours of administrative leave. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Holidays. Employee shall be entitled to eleven (11) paid holidays and one (1) floating holiday, for a total of twelve (12) paid holidays, per calendar year, as identified more specifically in section A of the Leaves provision of the Compensation Plan. D. Additional Benefits. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to Executive Management employees of the City, as provided in the Compensation Plan. Specifically: 1. City has implemented an IRS qualified Cafeteria Plan for certain benefits as provided in section A of the "Benefits" portion of the Compensation Plan. City's contribution towards the Cafeteria Plan for Employee shall be One Thousand, Two Hundred Forty -Nine Dollars ($1,249.00) per month. Any unused Cafeteria Plan funds shall be payable to Employee as taxable cash back. If Employee does not want to enroll in any health insurance plan offer by the City, Employee shall provide evidence of group medical insurance coverage that is acceptable to the City and execute an opt -out agreement releasing the City from any responsibility or liability to provide health insurance coverage on an annual basis. In addition, if Employee elects to participate in a City -sponsored medical plan, Employee shall be entitled to the minimum CalPERS participating employer contribution toward medical insurance, currently set at One Hundred and Twelve Laurence Scott Poster Employment Agreement Page 3 S18-60 Dollars ($112.00) per month for the 2012 calendar year, subject to annual adjustment on January 1 of each succeeding year in accordance with the Compensation Plan. The City's contributions set forth in this paragraph shall adjust automatically to correspond to the City's contributions to Executive Management as set forth in the Compensation Plan. 2. Employee shall be eligible for the "3% @ 50" retirement formula noted in section C(1) of the "Benefits" portion of the Compensation Plan. 3. Employee shall be eligible to participate in the LIUNA Supplemental Pension program noted in section C(2) of the "Benefits" portion of the Compensation Plan. 4. Employee shall be eligible to participate in the Medical Expense Reimbursement Plan (MERP) noted in section D of the "Benefits" portion of the Compensation Plan as a Category 1 employee hired after January, 1, 2006. 5. City shall provide term life insurance for Employee in the face value of Fifty Thousand Dollars ($50,000.00). This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. Annual Physical Exam. Employee shall 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 One Thousand Dollars ($1,000.00). F. Uniform Allowance. Employer will pay the entire costs of providing, each component of the uniform and will report the value of the same as One Thousand, Seven Hundred Nineteen Dollars ($1,719.00) to PERS as additional compensation paid to Employee. 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 shall periodically assess the condition of the assigned vehicle and, if warranted, City will replace the assigned vehicle. 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. Laurence Scott Poster Employment Agreement Page 4 S18-61 H. City Cell Phone Stipend. Employee shall be eligible to receive a cell phone stipend pursuant to City's Administrative Procedure AP -004 — Cell Phone Stipend Program Policy. Key and Management Group, Executive Management Category. Employee shall be 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. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City 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. 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 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City 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 6: At -Will Employment Relationship A. Consistent with Section 504 of the City Charter and NBMC Chapter 2.12, 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 Laurence Scott Poster Employment Agreement Page 5 S18-62 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 shall have no right to any additional compensation or payment, except as provided in Section 7, below. In addition to the basis listed in Section 7, Paragraph B below, cause shall also include a failure to implement the goals or policies, or both, of the City, as determined by the City Council or City Manager, or for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration. Nothing herein shall be construed to limit the rights and obligations of City and Employee provided in the Firefighters Procedural Bill of Rights Act, codified at Government Code section 3250, et seq. ("FPBRA"). B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer. SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating. Employee's Employment) for any reason other than one or more of those reasons listed in Section 7, Paragraph B below, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar days written notice and shall pay Employee a lump sum severance benefit equal to six (6) months of his then applicable Annual Base Salary, and provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) for any reason or reasons listed below, as determined by the City Manager, Employee shall not be entitled to any severance. 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 Laurence Scott Poster Employment Agreement Page 6 S18-63 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. C. Any dispute as to whether severance is excused under Section 7, Paragraph B above, shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under FPBRA. D. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at the Newport Beach Fire Department, Monday through Friday during normal business hours. SECTION 9: 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 Laurence Scott Poster Employment Agreement Page 7 S18-64 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. B. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Assembly Bill 1344, adding Article 2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. Laurence Scott Poster Employment Agreement Page 8 S18-65 SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658-8915 With a courtesy copy to: City Attorney City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92668-8915 (2) EMPLOYEE: Laurence Scott Poster at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. 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. Laurence Scott Poster Employment Agreement Page 9 S18-66 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. 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. 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 By: David- iff, City Manager Date: I -- 1r3- D--0I'L APPROVED AS TO FORM City Attorney's Office By: Aaron C. Harp, City Attorney Date: HI ATTEST: 0 Ty -f/By: ,'`Leifani I. Brown, EMPLOYEE Laurence Scott Poster Date: i� I Laurence Scott Poster Employment Agreement Page 10 S18-67 City Clerk ATTACHMENTS: Exhibit A: Fire Chief Description A10-01358 — Scott Poster Employment Agreement Laurence Scott Poster Employment Agreement Page 11 S18-69 FIRE CHIEF DEFINITION: To serve as the executive director of the Fire Department; to plan, organize, direct and coordinate the fire suppression and prevention, emergency medical services, ocean safety, hazardous waste mitigation, and disaster preparedness programs and activities of the department; 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 direct supervision over management, supervisory, professional, technical and clerical personnel. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties Plan, direct, and review the operation, services and activities of the Fire Department, including fire suppression, hazardous material mitigation, fire and life safety code compliance, emergency medical services, ocean lifeguards, citywide disaster preparedness and response; administer the overall operation of the department, including hiring, personnel administration, budgeting, and community relations; assess community service expectations and requirements and develop appropriate methods to meet service requirements; ensure the maximum utilization of manpower, equipment, and supplies; Develop, plan and implement departmental goals and objectives; develop, recommend and administer approved policies and procedures; coordinate departmental activities with those of other City departments and outside agencies and organizations; provide professional and technical advice and assistance to the City Manager and City Council on matters related to departmental functions; Prepare and present staff reports and answer questions; Plan, organize, select and supervise the work of departmental staff; coach, motivate, monitor, correct and evaluate staff performance; serve as the second level supervisor of staff supervised by division managers and review performance evaluations prepared by subordinate managers; develop and implement staff training programs and plans; recommend employee recognition, discipline and termination; ensure that City personnel policy and employee agreements are implemented and applied consistently within the department; Supervise and participate in the development of the departmental budget; participate in the forecast of revenue, expenses and additional funds needed for staffing, equipment, materials, and supplies; administer the approved departmental budget and guide subordinate managers in developing and administering division and unit budgets; o Represent the City and participate in professional and public meetings and organizations, as appropriate; attend staff meetings; participate in mandated training and staff development; respond to and meet with property owners, homeowner groups, business Laurence Scott Poster Employment Agreement Page 13 S18-70 districts, and the public; meet with, provide information and negotiate with various regulatory agencies to satisfy their requirements; represent the City as a witness in legal actions; Oversee and direct departmental office operations; maintain appropriate records and files; coordinate workflow; prepare reports, agenda items memoranda, letters and other forms of correspondence; and V Perform related duties as assi QUALIFICATIONS: Knowledge of: Advanced principles and practices of fire suppression and prevention, emergency medical services, disaster preparedness, training, and ocean lifeguard programs and services; Principles and practices of organization, administration and personnel management and leadership, particularly as applied to the analysis and evaluation of programs, policies and operational needs; Principles and techniques of budget development and administration; 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: Direct, plan and organize the activities of a comprehensive citywide Fire Department, including fire suppression and prevention, emergency medical services, disaster preparedness, personnel training, and ocean lifeguard programs and services; Analyze problems; identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals; Interpret and apply City policies, procedures, rules and regulations; Develop and administer sound departmental policies and procedures; Laurence Scott Poster Employment Agreement Page 14 S18-71 Stay abreast of new trends, innovations, standards and guidelines in the fields of fire suppression and prevention, emergency medical services, disaster preparedness, hazardous material mitigation and ocean lifeguard services and safety; Provide leadership to a diverse work force; meeting City objectives while maintaining positive employee morale; Gain cooperation through discussion and persuasion; Select, supervise, train and evaluate personnel; Prepare and administer a departmental budget; Maintain confidentiality of medical and other privileged information; Communicate clearly and concisely, both orally and in writing; Appear for work on time; Fallow directions from a supervisor; Understand and follow posted work rules and procedures; Accept constructive criticism; and Establish and maintain cooperative working relationship with those contacted in the course of work. This position may be required to work overtime hours as needed. EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is qualifying. A typical way to obtain the knowledge and abilities would be: Experience: Ten years of increasingly responsible fire suppression and prevention experience, including at least five years of responsible management and supervisory experience. Training: Completion of coursework leading to a bachelor's degree in fire administration or a closely related field. A master's degree in public administration, fire administration or a related field is desirable. LICENSE OR CERTIFICATE: Possession of, or ability to obtain, a valid and appropriate California driver's license is required. Laurence Scott Poster Employment Agreement Page 15 S18-72 EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of July 3, 2010 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city, ("Employer" or "City") and JAY R. JOHNSON, ("Employee") an individual. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of Califomia and the Charter of City. B. Pursuant to Sections 504(a) and 600 of the City Charter, and in accordance with Newport Beach Municipal Code ("NBMC") section 2.24.100, the City Manager has directed an open recruitment and screened all qualified applicants and other qualified persons known by the City Manager to be available for the position of Chief of Police. C. Following an open recruitment and an extensive competitive examination, interviewing, and screening process of numerous candidates, the City Manager believes Employee to be the best qualified on the basis of executive and administrative qualifications, with special reference to the experience and knowledge of accepted practice with respect to the duties of the Chief of Police as contemplated by and in conformity with NBMC section 2.24.100 and Civil Service Board Rules & Regulations ("CSBR&R") section 701. D. The City desires to employ Employee as Chief of Police and to enter into an Agreement with Employee upon the terms and conditions in this Agreement. E. Employee is willing to accept such employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1: Term Unless sooner terminated as provided in this Agreement, this Agreement shall be effective from July 3, 2010 ("Effective Date") and shall continue until Employer or Employee terminate this Agreement under the terms provided herein. SECTION 2: 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 Municipal Code and all relevant resolutions, rules, regulations, procedures, 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' 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 3: Compensation A. Effective July 3, 2010, Employer agrees to pay Employee an Annual Base Salary of $204,500.00 (Two Hundred and Four Thousand, Five Hundred Dollars). In the event that the Newport Beach Police Management Association ("PMA") agrees to a pre-tax payroll deduction for retirement contribution, that deduction shall apply to Employee in the same percentage of base pay as it does to PMA employees and for the same duration. This deduction from Employee's Annual Base Salary is contemplated as an offset to a portion of the Employee's share paid by the City to the California Public Employee Retirement System ("PERS" or "CalPERS") for the "3% at 50" retirement plan. This pre-tax payroll deduction is made pursuant to IRS Code Section 414(h)(2). As currently contemplated, the deduction is proposed at three and one-half percent (3.5%) of Annual Base Salary. Three and one-half percent of Employee's Annual Base Salary amounts to $7,157.50 per year, resulting in an Annual Base Salary of $197,342.50 after the 3.5% pre- tax payroll deduction described herein ("Adjusted Pre -Tax Salary"). Adjusted Pre -Tax Salary shall also be subject to deduction and withholding of any and all sums required for federal or state income tax, social security tax 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 other 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. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the manner (but not the amount) in which management employees are paid. B. Employer, by the City Manager, shall conduct an initial evaluation of Employee's performance promptly following the six (6) month anniversary of the Effective Date of this Agreement, with annual evaluations beginning at the one year anniversary of the Effective Date of this Agreement. SECTION 4: Employee Benefits A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the current rate of 30 days per year or 9.23 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed a total of 648.18 hours, and no Flex Leave shall further accrue beyond the maximum total of 648.18 hours. The right to sell back accumulated Flex Leave Page 2 of 10 shall be consistent with the "Leave Sellback" provision of the Compensation Plan. B. Administrative Leave. Employee shall be entitled to eighty (80) hours of administrative leave per calendar year. For the 2010 calendar year only, Employee shall be entitled to forty (40) hours of administrative leave. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Holidays. Employee shall be entitled to twelve (12) paid holidays and one (1) floating holiday per calendar year, as identified more specifically in section A of the Leaves provision of the Compensation Plan. D. Additional Benefits. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to Executive Management employees of the City, as provided in the Compensation Plan. Specifically: 1. City has implemented an IRS qualified Cafeteria Plan for certain benefits as provided in section A of the "Benefits" portion of the Compensation Plan. City's contribution towards the Cafeteria Plan for Employee shall be One Thousand, Forty -Nine Dollars ($1,049.00) per month. In addition, if Employee elects to participate in a City - sponsored medical plan, Employee shall be entitled to the minimum CaIPERS participating employer contribution toward medical insurance, currently set at One Hundred and Five Dollars ($105.00) per month for the 2010 calendar year, subject to annual adjustment on January 1 of each succeeding year. 2. Employee shall be eligible for the "3% @ 50" retirement formula noted in section C(1) of the "Benefits" portion of the Compensation Plan. 3. Employee shall be eligible to participate in the LIUNA Supplemental Pension program noted in section C(2) of the "Benefits" portion of the Compensation Plan. 4. Employee shall be eligible to participate in the Medical Expense Reimbursement Plan (MERP) noted in section D of the "Benefits" portion of the Compensation Plan as a Category 1 employee hired after January 1, 2006. 5. City shall provide term life insurance for Employee in the face value of Fifty Thousand Dollars ($50,000.00). Page 3 of 10 This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. Annual Physical Exam. Employee shall 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 One Thousand Dollars ($1,000.00). F. Uniform Allowance. Employer shall provide Employee an annual allowance of One Thousand, Three Hundred Fifty Dollars ($1,350.00) toward the cost of Employee's official Newport Beach Police Department police uniforms and related equipment, which amount shall be allocated to Employee in equal installments included in his biweekly paycheck and which shall be reported to PERS as additional compensation paid to Employee. 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. City to Provide Cell Phone. City shall provide a City -owned cell phone for Employee's use for City -related business purposes, which shall be similar to cell phones and use plans provided to City's Key and Management employees. Employee acknowledges that City may change the manner in which it provides cell phone access to Key and Management employees, which may include a change in policy to provide a cell phone allowance to such employees, and Employee understands that he will be subject to any such change in City's policy. I. Key and Management Group, Executive Management Category. Employee shall be 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. Page 4 of 10 SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City 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. 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 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City 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 6: 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 shall have no right to any additional compensation or payment, except as provided in Section 7, 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. ("POBAR"). B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer. Page 5 of 10 SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without cause, as determined by the City Manager, Employer shall provide Employee with fourteen (14) calendar days written notice and shall pay Employee severance as follows: If termination is effective on or before July 3, 2012, Employer shall pay Employee a lump sum severance benefit equal to twelve (12) months of his then applicable Annual Base Salary, and provide twelve (12) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. 2. If termination is effective on July 4, 2012 or any date thereafter, Employer shall pay Employee a lump sum severance benefit equal to six (6) months of his then applicable Annual Base Salary, and provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the City Manager, Employee shall not be entitled to any severance. As used in this Agreement, cause shall mean any of the following: Conviction of a felony; Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Willful abandonment of duties; 4. 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 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. Page 6 of 10 C. Any dispute as to whether severance is excused under Section 7, Paragraph B above, shall be resolved consistent with then current City policies, rules and procedures and with Employer's and Employee's rights and obligations under POBAR. D. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including 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 Newport Beach Police Department, Monday through Friday during normal business hours. SECTION 8: 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. B. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. Page 7 of 10 SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. 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 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658-8915 With a courtesy copy to: City Attorney City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658-8915 01 Page 8 of 10 (2) EMPLOYEE: Jay Johnson at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employers generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. 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. 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 Page 9 of 10 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: -6✓i Davi iff, City Manager Date: (a— 30 —�o�� APPROVED AS TO FORM Office of the City Attorney By: yne . Be champ, Assistant City Morney ATTEST: By: V� ^ Leilani Brown, City Clerk EMPLOYEE WWWMA F� I M1 (,-28- 7.C)l© A 10-00033 —Johnson Employment 06.26.10 CLEAN MDB/CM Page 10 of 10 CITY OF NEWPORT BEACH POLICE CHIEF DEFINITION: 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. EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following: Essential Job Duties 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 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 civic events; and • Performs 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 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 collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; 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 AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is 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 at least three years at the rank of Captain or above. Training: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A Master's degree or Juris Doctorate is desirable. LICENSE OR CERTIFICATE: Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Possession of a valid California driver's license. 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. Key and Management Group - Executive Management Revised BR 212007 Revised MWD: 2/17/2010 & CSB Approved 311110