HomeMy WebLinkAboutC-7032-1 - Third Amended and Restated Employment Agreement - City ClerkTHIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of February 23, 2016 and is entered into by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer"
or "City") and LEILANI I. BROWN ("Employee"), an individual (sometimes collectively
referred to herein as "the Parties").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. Employee has been continuously employed by City as City Clerk since November
22, 2008. Employee is currently employed under a Second Amended and
Restated Employment Agreement dated November 25, 2014 ("Employment
Agreement")
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and that upon execution of this Agreement, the
Employment Agreement shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term
This Agreement shall become effective February 23, 2016 ("Effective Date"). Subject to
City's right to terminate Employee's employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
City's election not to extend this Agreement shall not entitle Employee to severance
pursuant to Section 7 of this Agreement.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Clerk, to exercise the powers and
authority and to perform the functions and duties specified in the Newport Beach City
Charter, the Municipal Code and all relevant resolutions, rules, regulations, procedures,
applicable job description(s) and state codes, as they currently or may in the future
exist. Employee shall exercise such power and authority and perform such other
functions and duties, not inconsistent with this Agreement, as Employer, by its City
Council, may legally assign.
SECTION 3: Compensation and Performance Evaluation
A. Employer agrees to pay Employee at the rate of an annual base salary of
$145,550.00 (ONE HUNDRED FORTY-FIVE THOUSAND FIVE HUNDRED AND
FIFTY DOLLARS AND NO/100), subject to deduction and withholding of any and
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all sums required for federal or state income tax, pension contributions, and all
other taxes, deductions or withholdings required by then current state, federal or
local law, prorated and paid on Employer's normal paydays for the City Manager,
City Attorney, City Clerk, and any Department Directors not covered by collective
bargaining agreements ("Executive Management Employees"). Employer shall
also deduct sums Employee is obligated to pay because of participation in plans
or programs described in Section 4 of this Agreement. The annual base salary of
Employee is within the approved salary range adopted by resolution of the City
Council. This Agreement shall be deemed amended whenever the City Council
adopts a resolution changing the base salary of Executive Management
Employees or the manner (but not the amount) by which Executive Management
Employees are paid.
B. Employer also agrees to pay Employee a one-time merit payment of $13.65 per
paid work day from the date of adoption of this Agreement back to the beginning
of the Pay Period including November 25, 2015.
C. Employer, by the City Council, and Employee shall promptly set mutually -agreed
upon objectives for each year under this Agreement. Employer, by the City
Council, may elect to conduct an evaluation of Employee's performance at any
time or times during the period in which this Agreement remains in effect.
D. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except as
expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in her
employment service between the Employment Agreement and this Agreement.
All of Employee's accrued leave and other benefit balances shall carry over, and
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her leave and benefit balances shall continue to accrue under the terms of
applicable City policies and this Agreement.
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 9.69 hours per Pay Period.
Employee's maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. For calendar year 2016, and each calendar year
thereafter, Employee shall be entitled to 80 (eighty) hours of Administrative
Leave. Administrative Leave will not accrue from calendar year to calendar year
and must be used or lost at the conclusion of each calendar year. Consistent
with the Compensation Plan, there is no right to sell back any accumulated
Administrative Leave.
D. Additional Benefits. Except as expressly provided herein, Employee shall
receive the same health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and long term disability
plans, life insurance plans, and deferred compensation plans, as are available
under the Compensation Plan. This Agreement shall be deemed amended as to
these benefits, and these benefits only, whenever the City Council adopts a
resolution or takes action changing these benefits under the Compensation Plan.
E. Annual Physical Exam. Employee may undergo an annual physical examination
and City shall reimburse Employee for the actual cost of the examination up to a
maximum of $1,000.00 (one thousand dollars no cents).
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
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G. Amendment of Benefits. Employees benefits provided under this Section 4 are
not tied to the compensation of any other City employee or group of City
employees except as expressly provided in this Section.
H. PERS. Pursuant to the terms of the Second Amended and Restated
Employment Agreement, Employee contributed 12.35% of compensation
earnable towards Employee's retirement benefit. Effective the pay period that
includes January 1, 2016, Employee shall contribute an additional .35% of
compensation earnable for a total employee contribution of 12.70% broken down
as follows: 8.0% of the required member contribution; and 2.42% and 2.28% as
cost sharing in accordance with Government Code sections 20516(a) and
20516(f) respectively. Effective the pay period that includes January 1, 2017,
Employee shall contribute an additional .30% of compensation earnable for a
total employee contribution of 13.00% broken down as follows: 8.0% of the
required member contribution; and 2.42% and 2.58% as cost sharing in
accordance with Government Code sections 20516(a) and 20516(f) respectively.
Also, the Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution. In the event the City Council
adopts a Compensation Plan in which retirement contributions for non -safety
members of the Key & Management Group exceeds 13.00%, this Agreement
shall be deemed amended and Employee will be subject to the same formula or
percentage contribution as it is applied to the non -safety members of the Key &
Management Group covered under the Compensation Plan and for the same
duration. In no event shall the Employee's retirement contribution be less than
13.00%. Employee retirement contributions that are in addition to the normal
PERS Member Contribution shall be calculated on base pay, special pays, and
other pays normally reported as TERSable" compensation, and will be made on
a pre-tax basis through payroll deduction, to the extent allowable by the
Government Code.
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SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees to either pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Council. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. City shall reimburse Employee for expenses incurred in her attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of her duties.
C. The expenses to be budgeted and paid in the Section 5, Paragraphs A and B
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed
by, and serves at the pleasure of, the City Council. Nothing in this Agreement
shall prevent, limit or otherwise interfere with the right of Employer to terminate
this Agreement and the employment of Employee at any time, with or without
Cause (as defined below), and with or without notice. Employer shall pay
Employee for all services through the Effective Date of termination and Employee
shall have no right to any additional compensation or payment, except as
provided in Section 7, Severance and Benefit Payoff at Termination, and General
Release Agreement, below.
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B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from her employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of her resignation.
SECTION 7: Severance and Benefit Payoff at Termination, and General Release
Agreement
A. If Employer terminates this Agreement (thereby terminating Employee's
Employment) without Cause, as determined by the affirmative votes of a majority
of the members of the City Council at a meeting of the City Council, and if
Employee signs, delivers to the City Council, and does not revoke, the General
Release Agreement in the form attached hereto as Exhibit A, Employer shall pay
Employee a lump sum benefit equal to six (6) months of her then applicable base
salary, and shall provide six (6) months of medical benefits as provided under the
Compensation Plan beginning on the Effective Date of termination (collectively
"Severance").
B. If Employer terminates this Agreement (thereby terminating Employee's
Employment) with Cause, as determined by the affirmative votes of a majority of
the members of the City Council at a Regular Meeting of the City Council,
Employee shall not be entitled to any additional compensation or payment,
including Severance. If the City Council intends to terminate with Cause, based
on a reason or reasons set forth in subpart 5 or 6, immediately below, the
Council shall first deliver to Employee a written Notice of Intent to Terminate,
stating the reason or reasons for the proposed termination, and providing a thirty
(30) day period for Employee to cure. If, in the City Council's independent
judgment, Employee cures the identified reason or reasons for Cause
termination, Employee shall not be terminated therefor. As used in this
Agreement, Cause shall mean any of the following:
1. Conviction of a felony;
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2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City Council
made by the City Council as a body; and
6. Any grossly negligent action or inaction by Employee that materially and
adversely: (a) impedes or disrupts the operations of Employer or its
organizational units; (b) is detrimental to employees or public safety; or (c)
violates properly established rules or procedures of Employer.
C. In no event may Employee be terminated within ninety (90) days after any
municipal election for the selection or recall of one or more of the members of the
City Council.
D. If Employee terminates this Agreement (thereby terminating Employee's
employment), Employee shall not be entitled to any additional compensation or
payment, including Severance.
E. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accrued
but unused Administrative Leave.
SECTION 8: Employee's Obligations and Hours of Work
A. Employee shall devote her full energies, interest, abilities and productive time to
the performance of this Agreement and utilize her best efforts to promote
Employer's interests. Employee's duties may involve expenditures of time in
excess of the regularly established workday or in excess of a forty (40) hour
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workweek and may also include time outside normal office hours (including
attendance at City Council meetings). Employee's base salary includes
compensation for all hours worked and Employee shall be classified as an
exempt employee for purposes of overtime and shall not be entitled to any form
of compensation for overtime. In recognition of the significant time Employee will
need to devote outside normal office hours to business activities of Employer and
the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at City Hall, Monday through Friday during normal
business hours, subject to paragraph B of this Section, below.
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1)
of the Employee Policy Manual and referred to in Miscellaneous Section (D) of
the Compensation Plan.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of her employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, the city management staff, nor the Employee shall make any written,
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oral, or electronic statement to any member of the public, the press, or any City
employee concerning the Employee's termination except in the form of a joint
press release or statement, which is mutually agreeable to City and Employee.
The joint press release or statement shall not contain any text or information that
is disparaging to either Party. Either Party may verbally repeat the substance of
the joint press release or statement in response to any inquiry.
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with her duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee, in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
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defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Manager
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Leilani I. Brown
at the home address then shown in Employer's files
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable in civil judicial practice. Notice shall be deemed given
as of the date of personal service or as of the date of deposit of such written notice in
the course of transmission in the United States Postal Service as provided by law.
SECTION 14: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive
agreement between Employer and Employee relating to the employment of
Employee by Employer. Any prior discussions or representations by or between
the Parties are merged into this Agreement or are otherwise rendered null and
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void. The Parties, by mutual written agreement, may amend any provision of this
Agreement during the life of the Agreement. Such amendments shall be
incorporated and made a part of this Agreement. The foregoing notwithstanding,
Employee acknowledges that, except as expressly provided in this Agreement,
her employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and her employment is, and will continue to be, at the
will of the City Council.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee in the same manner as
applied to other management employees, provided, however, in the event of a
conflict between the provisions of this Agreement and the City Charter, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement.
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F. Employee's Independent Review: Employee acknowledges that she has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that she has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that she has been advised to obtain, and has availed herself of,
legal advice with respect to the terms and provisions of this Agreement.
[Signatures on Next Page.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
(N—IL
Diane B. Dixon, Mayor
Date: o�C� ` I
APPROVED AS TO FORM:
CITY ATTO EY'S OFFICE
By:
off—
Aaron t. Harp, City Attorney
Date: z / I I /J5
ATTEST:
By: 61—y—d ra--, - .
Cristal McDonald
Deputy City Clerk
Date: )"'. Z5-. /P
EMPLOYEE,
An Individual
Dater,-
[End of Signatures]
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GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
LEILANI BROWN ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light
of the following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that she has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with her legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), she may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to her through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether she signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee
acknowledges that the Severance referenced in paragraph 2 of this Agreement is in
excess of all amounts that are due and owing to her as a result of her employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to her, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the Third Amended and Restated Employment
Agreement dated ,February 23, 2016, less applicable deductions, and shall provide the
months of medical benefits as provided in that same Section 7 ("Severance").
Employee acknowledges that the Severance is in excess of all amounts due and owing
her as a result of her employment by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
EXHIBIT A — Page 1
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
her employment with Employer which she now has, or ever had, including but not
limited to any rights, claims, causes of action or damages arising under Title VII of the
Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee
Retirement Income Security Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Older Workers Benefits Protection Act, the
Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the
California Labor Code, the Private Attorneys General Act of 2004, the California Moore -
Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California
Fair Employment and Housing Act, any other federal, state, or local employment
practice legislation, or any federal or state common law, including wrongful discharge,
breach of express or implied contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which she does not know or suspect to exist in her favor.
Employee further acknowledges that she has read this General Release and that
she understands that this is a general release, and that she intends to be legally bound
by the same.
4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover her/its reasonable attorneys' fees and costs.
[Signatures on Next Page.]
EXHIBIT A — Page 2
Dated , 20 CITY OF NEWPORT BEACH
Dated: , 20
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By:
Aaron C. Harp, City Attorney
Date:
ATTEST:
By:
Deputy City Clerk
Date:
Leilani Brown
EXHIBIT A — Page 3