HomeMy WebLinkAbout2018-22 - Approving and Authorizing the Mayor to Execute the Sixth Amended and Restated Employment Agreement Between the City of Newport Beach and Dave KiffRESOLUTION NO. 2018-22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING AND
AUTHORIZING THE MAYOR TO EXECUTE THE SIXTH
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH AND DAVE KIFF, CITY MANAGER
WHEREAS, Newport Beach Charter Article V establishes provisions regarding the
compensation, powers, and duties of the City Manager of the City of Newport Beach
("City"), which is a position appointed by the City Council;
WHEREAS, the specific terms and conditions of the City Manager's employment
are defined by his employment agreement. Certain other benefits for the City Manager,
including cafeteria allowances, paid leaves, disability, and life insurance, are tied to the
terms of the prevailing Key and Management Compensation Plan;
WHEREAS, on September 12, 2009, the City Council appointed Dave Kiff as City
Manager, and Mr. Kiff has continuously been employed as City Manager since that date.
Since his initial appointment, the terms and conditions of Mr. Kiff's employment as City
Manager have been amended and restated five times, with the City Council most recently
approving a Fifth Amended and Restated Employment Agreement on April 25, 2017;
WHEREAS, Mr. Kiff recently announced his plans to retire after twenty years with
the City. The Sixth Amended and Restated Employment Agreement, attached hereto as
Exhibit "A" and incorporated herein by this reference, reflects the terms and conditions
under which the City and Mr. Kiff intend and desire to continue Mr. Kiff's employment until
his retirement date; and
WHEREAS, by adopting this resolution, the City Council intends to approve and
authorize the Mayor to execute the Sixth Amended and Restated Employment Agreement
with Mr. Kiff.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council does hereby approve and authorize the Mayor to
execute the attached Sixth Amended and Restated Employment Agreement with Mr. Kiff.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this resolution
is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this resolution. The City Council
hereby declares that it would have passed this resolution, and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Resolution No. 2018-22
Page 2 of 2
Section 4: The City Council finds the adoption of this resolution is not subject to
the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 10th day of April, 2018.
ATTEST:
Ifr
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C.
AttorneyCity
'1Gl6� r•,
Marshall "Duffy" Duffield
Mayor
Attachment(s): Sixth Amended and Restated Employment Agreement
SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
CITY OF NEWPORT BEACH CITY MANAGER
This SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of April 10, 2018 ("Effective Date") and is entered
into by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and Charter City ("Employer" or "City") and DAVID KIFF ("Employee") an
individual (sometimes collectively referred to herein as "the Parties").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is
now being conducted under the statutes of the State of California and the
Charter of City.
B. Employee has been continuously employed by City as City Manager since
September 12, 2009. Employee is currently employed under a Fifth Amended
and Restated Employment Agreement dated April 25, 2017 ("Fifth Amended
Agreement"). The term of the Fifth Amended Agreement expires on April 24,
2019.
C. Employee informed the Mayor for the City of Newport Beach of his desire to
separate from employment with the City in the near future. In exchange for the
promises and provisions contained herein, Employee and the City mutually
agreed that his employment with the City would terminate effective August 31,
2018, rather than on April 24, 2019 as contemplated by the Fifth Amended
Agreement. To that end and in conformance with the parties discussions, the
City publically announced Employee's intention to separate from the City
effective August 31, 2018.
D. The Parties mutually agree that this Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment until August 31, 2018, and thereafter amicably part ways in a
manner mutually beneficial to both Employee and the City. Except as
Page 1
expressly provided herein, the Parties agree that there are no other
agreements between them, oral, written or implied.
E. The Parties mutually agree that they intend for this Agreement to supersede all
prior Employment Agreements, and that, except as expressly provided herein,
upon execution of this Agreement, any prior Employment Agreements shall
have no force or effect.
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term
This Agreement shall become effective April 10, 2018. The Parties have mutually
agreed that Employee's employment shall conclude on August 31, 2018, which shall
be deemed Employee's separation date for purposes of employment with the City.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Manager to exercise the powers and
authority and to perform the functions and duties specified in the Newport Beach City
Charter, the Municipal Code and all relevant resolutions, rules, regulations,
procedures, applicable job description(s) and state codes, as they currently or may in
the future exist ("City Manager Duties"). Employee shall exercise such power and
authority and perform such other functions and duties, not inconsistent with this.
Agreement, as Employer, by its City Council, may legally assign.
SECTION 3: Compensation and Performance Evaluation
A. Employer agrees to continue to pay Employee an annual base salary of
$265,680 (Two hundred sixty five thousand and six hundred and eighty dollars)
("Base Salary"), subject to deductions and withholding of any and all sums
Page 2
required for federal or state income tax, pension contributions, and all other
taxes, deductions or withholdings required by then current state, federal or
local law, prorated and paid on Employer's normal paydays for the City
Manager, City Attorney, City Clerk, and any Department Directors not covered
by collective bargaining agreements ("Executive Management Employees").
Employer shall also deduct sums Employee is obligated to pay because of
participation in plans or programs described in Section 4 of this Agreement.
The annual Base Salary of Employee is within the approved salary range
adopted by resolution of the City Council. This Agreement shall be deemed
amended whenever the City Council adopts a resolution changing the Base
Salary of Executive Management Employees or the manner (but not the
amount) by which Executive Management Employees are paid.
B. Employer, by the City Council, and Employee may set mutually agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
may elect to conduct an evaluation of Employee's performance at any time or
times during the period in which this Agreement remains in effect.
C. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except
as expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in his
employment service between the prior Employment Agreement and this
Agreement. All of Employee's accrued leave and other benefit balances shall
carry over as agreed, and his leave and benefit balances shall continue to
accrue under the terms of applicable City policies and this Agreement.
Page 3
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's
Key and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 9.69 hours per Pay Period.
Employee's Maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to use up to 80 (eighty) hours
of paid Administrative Leave each calendar year. Administrative Leave will not
accrue from calendar year to calendar year and must be used each calendar
year or no additional entitlement shall arise or occur. Upon separation,
Employee shall be entitled to payment of any hours remaining of the 80 (eighty)
entitled hours that were not used in the then current calendar year.
D. Additional Benefits. Except as expressly provided herein, Employee shall
receive the same health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and long-term disability
plans, life insurance plans, and deferred compensation plans, as are available
under the Compensation Plan. This Agreement shall be deemed amended as
to these benefits, and these benefits only, whenever the City Council adopts a
resolution or takes action changing these benefits under the Compensation
Plan.
E. Deferred Compensation. Employee shall receive one percent (1%) of
Employee's Base Salary in the form of an Employer paid deferred
compensation contribution to Employer's approved deferred compensation
plan. Additionally, in exchange for the releases contained in the General
Release Agreement attached hereto as Exhibit "A", within ten (10) business
days following the effective date of the General Release Agreement the City
shall make a one-time deferred compensation contribution in the amount of
Page 4
twenty thousand dollars ($20,000) to Employee's account in Employer's
approved deferred compensation plan or if that contribution exceeds allowable
contribution limits then the balance shall be paid in a lump sum payment to
Employee.
F. Annual Physical Exam. Employee may undergo an annual physical
examination and City shall reimburse Employee for the actual cost of the
examination up to a maximum of $1,250 (One thousand two hundred fifty
dollars).
G. Automobile Allowance. Employee's duties require him to be available and
respond to demands of City business at all times and outside of regular
business hours, including weekends. Employer shall, therefore, pay to
Employee $500 (Five hundred dollars) per month as an automobile allowance
so that Employee may respond to these demands of City business.
H. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
I. Amendment of Benefits. Employee's benefits provided under this Section 4 are
not tied to the compensation of any other City employee or group of City
employees except as expressly provided in this Section.
J. Attorneys' Fees & Costs. The City shall reimburse Employee for the
reasonable legal fees and costs incurred by Employee for the preparation of
this Agreement, up to $5,000.
K. PERS. Employee contributes thirteen percent (13%) of compensation earnable
towards Employee's retirement benefit, which is designated as follows: 8% of
Employee/Members total PERSable salary as the Employee/Member
Page 5
Contribution; and 2.42% and 2.58% of the Employer Contribution Rate as cost
sharing in accordance with Government Code sections 20516(a) and 20516(f)
respectively.
The Parties agree that the City will not report as special compensation the
value of any Employer Paid Member Contribution. In the event the City Council
adopts a Compensation Plan in which retirement contributions for non -safety
members of the Key & Management Group exceeds 13.00%, this Agreement
shall be deemed amended and Employee will be subject to the same formula
or percentage contribution as it is applied to the non -safety members of the
Key & Management Group covered under the Compensation Plan and for the
same duration. In no event shall the Employee's retirement contribution be less
than 13.00%. Employee retirement contributions that are in addition to the
normal PERS Member Contribution shall be calculated on Base Salary, special
pays, and other pays normally reported as "PERSable" compensation, and will
be made on a pre-tax basis through payroll deduction, to the extent allowable
by the Government Code.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
B. Employer agrees to either pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Council. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
Page 6
C. Employer agrees to budget and pay for professional dues, membership and
subscriptions of Employee necessary for continuation and participation in the
International City/County Management Association (CMA), Cal-ICMA, the
California City Manager's Foundation (CCMF), and state and national League of
Cities and such other organizations as Employer and Employee may agree from
time to time. Employer also agrees to pay the cost of a corporate surety bond as
contemplated by section 503 of the City Charter.
D. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually agreed
upon goals, and which are related to Employee's duties or Employer's operations
and held in the continental United States. For purposes of this paragraph,
reasonable expenses are limited to the reasonable and actual cost of registration,
coach -class airfare (where applicable), ground transportation and meals.
Reasonable expenses will also include the reasonable and actual cost of lodging
for meetings outside of Orange County.
E. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or events
in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed
by, and serves at the pleasure of, the City Council. Nothing in this Agreement shall
Page 7
prevent, limit or otherwise interfere with the right of Employer to terminate this
Agreement and the employment of Employee at any time, with Cause (as defined
below), and with or without notice. Employer shall pay Employee for all services
through the effective date of separation and Employee shall have no right to any
additional compensation or payment, except as provided in Section 7, below.
B. This Agreement provides for Employee's employment with the City until August 31,
2018, and Employee may not be terminated, without cause, prior to that date.
However, upon the appointment of a new City Manager or Acting City Manager, by
the City Council, Employee shall be relieved of all City Manager Duties and placed
on paid and benefited Administrative Leave until August 31, 2018. Also, the City
Council may, in their sole discretion, elect at any time to place Employee on paid
and benefited Administrative Leave until August 31, 2018. While on paid and
benefited Administrative Leave, Employee shall continue to have a duty to respond
to questions from the City and provide assistance as required by the new City
Manager or Acting City Manager, but shall not do so in his official capacity as City
Manager, having been relieved of all official duties while on such leave.
C. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of
Employee to resign from his employment with Employer, subject only to Employee
providing forty-five (45) calendar days prior written notice to Employer of the
effective date of his resignation. Upon the effective date of resignation, Employee
forfeits all compensation and benefits owing for the remainder of the term of this
Agreement, including Employee's right to the one-time lump sum payment of
eighty-four thousand dollars ($84,000.00) as described in Section 7(B) of this
Agreement.
Page 8
SECTION 7: General Release Agreement and Final General Release Agreement;
Termination for Cause
A. General Release Agreement. In consideration for the releases and waivers
contained in the General Release Agreement attached hereto as Exhibit "A", the
City shall make a one-time deferred compensation contribution in the amount of
twenty thousand dollars ($20,000) to Employee's account in the City's approved
deferred compensation plan, or a one-time cash payment to Employee in the
amount of twenty thousand dollars ($20,000) in the event such contribution would
exceed IRS contribution limits. Such contribution shall be made within ten (10)
business days following the effective date of the General Release Agreement. In
the event Employee does not execute the General Release Agreement by April 4,
2018, or revokes the General Release Agreement within seven (7) days of his
execution of the same such that it is of no force and effect, then this Agreement
shall also be null and void and of no further force and effect. In such event, the
Fifth Amended Agreement shall be considered Employee's operative employment
agreement.
B. Final General Release Agreement. Within five (5) business days following the
conclusion of Employee's employment with the City on August 31, 2018,
Employee shall execute the Final General Release Agreement attached hereto as
Exhibit B. In consideration for the releases and waivers contained in the Final
General Release Agreement and in lieu of any form of severance payment
contemplated in the Fifth Amended Agreement, the City will provide Employee a
one-time lump sum payment in the amount of eighty-four thousand dollars
($84,000.00) within ten (10) business days following the effective date of the Final
General Release Agreement ("Final Compensation Payment").
Page 9
C. If Employer terminates this Agreement (thereby terminating Employee's
Employment) with Cause, as determined by the affirmative votes of a majority of
the members of the City Council at a meeting of the City Council, Employee shall
not be entitled to the Final Compensation Payment. As used in this Agreement,
Cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4; or
4. Willful abandonment of duties.
D. In no event may Employee be terminated within ninety (90) days after any
municipal election for the selection or recall of one or more of the members of the
City Council.
E. If Employee terminates this Agreement (thereby terminating Employee's
employment), Employee shall not be entitled to the Final Compensation Payment
as described in Section 7(B) of this Agreement.
F. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused sick leave, special sick leave, as well as any accrued but
unused Flex Leave and unused administrative leave for the current calendar year.
Page 10
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the
regularly established workday or in excess of a forty (40) hour workweek and may
also include time outside normal office hours (including attendance at City Council
meetings). Employee's base salary includes compensation for all hours worked and
Employee shall be classified as an exempt employee for purposes of overtime and
shall not be entitled to any form of compensation for overtime. In recognition of the
significant time Employee will need to devote outside normal office hours to business
activities of Employer and the exempt, salaried nature of the employment, employee
is permitted to exercise a flexible work schedule. However, consistent with this
flexibility and Employee's participation in activities out of the office, Employee will
generally be expected to keep office hours at City Hall, Monday through Friday during
normal business hours.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express written
consent of City.
Page 11
B. City and Employee agree that for two years following the last signature on this
Agreement, no member of the City Council, or the City Management Staff on the
one hand, nor the Employee on the other hand, shall make any written, oral or
electronic statement about one of the others to any member of the public, the
press, or any City employee, that disparages him or her or harms his or her
reputation in any way. Each person bound by this provision retains the right to
make any truthful statement. The term "City Management Staff," as used in this
Section 9.6. is defined to include any City Manager, Acting or Interim City
Manager, Deputy or Assistant City Manager, Assistant to the City Manager, and all
Department Heads, including the City Attorney.
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with,
incompatible with or inimical to, or which materially interferes with his duties and
responsibilities to Employer. (Cal. Govt. Code §§1125, et seq.)
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and
indemnify Employee, using legal counsel of Employer's choosing, against expense or
legal liability for acts or omissions by Employee occurring within the course and scope
of Employee's employment under this Agreement. In the event Employer determines
there is a conflict of interest between Employer and Employee and independent
counsel is required for Employee, Employer may select the independent counsel after
having considered the input of Employee and shall pay the reasonable fees of such
Page 12
independent counsel consistent with City litigation guidelines and standard rates
received by City from its chosen special counsel. (Cal. Govt. Code §§ 995, at seq.)
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving
an abuse of his office or position, to fully reimburse the City for: (1) any paid leave
salary offered by the City to the Employee; (2) any funds provided for the legal
criminal defense of the Employee; (3) any cash settlement related to the termination
that Employee may receive; and (4) any other payments received by Employee from
City that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement
or applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in
the custody of the United States Postal Service, postage prepaid, addressed as
follows:
(1 ) EMPLOYER: City of Newport Beach
c/o City Clerk
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: David Kiff
at the home address then shown in Employer's files
Page 13
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable in civil judicial practice. Notice shall be deemed
given as of the date of personal service or five days after the date of mailing.
SECTION 14: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive agreement
between Employer and Employee relating to the employment of Employee by
Employer, except as expressly provided herein. Any prior discussions or
representations by or between the parties are merged into this Agreement or are
otherwise rendered null and void. The Parties by mutual written agreement may
amend any provision of this Agreement. Such amendments shall be incorporated
and made a part of this Agreement. The foregoing notwithstanding, Employee
acknowledges that, except as expressly provided in this Agreement, his
employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently or
may in the future exist, and his employment is, and will continue to be, at the will of
the City Council.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives and
successors in interest.
C. Choice of Law and Venue: This Agreement shall be interpreted and construed
pursuant to and in accordance with the laws of the State of California and all
applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions.
Any litigation related to this Agreement shall be venued in the County of Orange,
State of California.
Page 14
D. Severability: If any provision of this Agreement is held invalid or unenforceable, the
remainder of this Agreement shall nevertheless remain in full force and effect. If
any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee in the same manner as
applied to other management employees, provided, however, in the event of a
conflict between the provisions of this Agreement and the City Charter, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement.
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this Agreement.
(Signatures on Following Page)
Page 15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH,
A Municipal Corporation
M
Marshall "Duffy" Duffield, Mayor
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By: /I �— C - #c-,1
Aaron C. Harp, City Attorney
Date: If f C.( .1 l
ATTEST:
By:
Leilani Brown,
City Clerk
Date:
EMPLOYEE,
David Kiff,
An Individual
Davi Kiff
Date:_ _4141 Ig
[End of Signatures]
Page 16
EXHIBIT "A"
GENERAL RELEASE AGREEMENT
1. PARTIES
This General Release Agreement (hereinafter referred to as the "AGREEMENT") is
entered into by and between the City of Newport Beach, a charter city and municipal
corporation (hereinafter referred to as "THE CITY"), and DAVID KIFF, an individual
(hereinafter referred to as "EMPLOYEE").
2. RECITALS
2.1. EMPLOYEE was hired by THE CITY as an at -will city manager
effective on or about September 12, 2009 serving at the pleasure of the City Council of
THE CITY pursuant to a written employment contract. EMPLOYEE is over 40 years of
age.
2.2. The written employment contract governing the terms and
conditions of EMPLOYEE's employment was amended from time to time during
EMPLOYEE's tenure as city manager. The Fifth Amended and Restated Employment
Agreement ("FIFTH AMENDED AGREEMENT") became effective April 25, 2017.
2.3. The Sixth Amended and Restated Employment Agreement ("THE
CONTRACT") became effective April 10, 2018. A copy of THE CONTRACT is attached
hereto as Exhibit "A".
2.4. Pursuant to THE CONTRACT, THE CITY and EMPLOYEE have
mutually agreed to amicably part ways in a manner mutually beneficial to both
EMPLOYEE and THE CITY, such that EMPLOYEE's final day of employment with THE CITY
shall be August 31, 2018. To effectuate an amicable conclusion of EMPLOYEE's
employment with THE CITY on August 31, 2018, THE CITY and EMPLOYEE have agreed to
enter into this AGREEMENT whereby EMPLOYEE receives a one-time deferred
compensation contribution in the amount of twenty thousand dollars ($20,000) (as
described in Section 3 below) in exchange for executing a general release and waiver of
any and all claims that EMPLOYEE may have to date against THE CITY, including but not
limited to its elected and non -elected officials, employees, attorneys, and agents.
2.5. In accordance with this AGREEMENT and with applicable state and
federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's
post -employment rights, including but not limited to, EMPLOYEE's rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee
Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance Portability
and Accountability Act of 1996 ("HIPAA").
3. CONSIDERATION
3.1. In exchange for the waivers and releases set forth herein, THE CITY
shall provide to EMPLOYEE a one-time deferred compensation contribution in the
amount of twenty thousand dollars ($20,000) to EMPLOYEE's account in THE CITY's
approved deferred compensation plan or if that contribution exceeds allowable
contribution limits then the balance shall be paid in a lump sum payment to Employee
within ten (10) business days after the EFFECTIVE DATE (as defined below) of this
AGREEMENT. The deferred compensation contribution shall be subject to applicable
state and federal withholdings as determined appropriate by THE CITY.
3.2 In exchange for the deferred compensation contribution and/or
lump sum payment related thereto as provided for herein, EMPLOYEE, and on behalf of
EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases,
acquits, and forever discharges THE CITY, and each of its predecessors, successors,
assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons
and entities acting by, through, under, or in concert with any of them, and each of them
(hereinafter referred to as "THE CITY PARTIES"), from any and all claims, charges,
complaints, contracts, understandings, liabilities, obligations, promises, benefits,
agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of
action, suits, rights, and demands of any nature whatsoever, known or unknown,
suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or
which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence,
condition, event, transaction, or thing which was done, omitted to be done, occurred or
was in effect at any time from the beginning of time up to and including the date of
EMPLOYEE's execution of this AGREEMENT (hereinafter referred to collectively as
"CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or
local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE
expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically
include, but are not limited to, claims based upon any alleged breach of THE CONTRACT
or any other agreement of employment, any demand for wages, overtime or benefits,
any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of
any duty arising out of contract or tort, any alleged wrongful termination in violation of
public policy, any alleged breach of any express or implied contract for continued
employment, any alleged employment discrimination or unlawful discriminatory act, or
any claim or cause of action including, but not limited to, any and all claims whether
arising under any federal, state or local law prohibiting breach of employment contract,
wrongful termination, or employment discrimination based upon race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, military and veteran status, or any other protected category or
characteristic, and any and all rights or claims arising under the California Labor Code or
Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the
California Fair Employment and Housing Act, California Government Code §§12900 et
seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the
Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local
human rights, civil rights, or employment discrimination or employee rights statute, rule,
or regulation. Nothing herein shall be interpreted as a release or waiver of any workers'
compensation claims or in any way prohibit or prevent EMPLOYEE from participating in
any claims or administrative action brought by a state or federal agency. Furthermore,
nothing herein shall be interpreted as a release or waiver of the THE CITY's statutory
obligations relative to providing defense and indemnification of public employees, if any,
including but not limited to Government Code Sections 825-825.6 and Sections 995-
996.6.
3.3 For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, THE CITY hereby releases, acquits, and forever discharges
EMPLOYEE from any and all claims, charges, complaints, contracts, understandings,
liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts,
expenses, damages, actions, causes of action, suits, rights, and demands of any nature
whatsoever, known or unknown, suspected or unsuspected, which THE CITY now has or
may acquire in the future, or which THE CITY ever had, relating to or arising out of any
act, omission, occurrence, condition, event, transaction, or thing which was done,
omitted to be done, occurred or was in effect at anytime from the beginning of time up
to and including the date of THE CITY's execution of this AGREEMENT (hereinafter
referred to collectively as "CITY CLAIMS"), without regard to whether such CITY CLAIMS
arise under the federal, state, or local constitutions, statutes, rules or regulations, or the
common law.
4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA
AND OWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as
the "ADEA") makes it illegal for an employer to discharge any individual or otherwise
discriminate with respect to the nature and privileges of an individual's employment
on the basis that the individual is age forty (40) or older. The Older Workers Benefit
Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et seq., Pub L
101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of
any right or claim under the ADEA, unless the waiver is knowing and voluntary. By
entering into this AGREEMENT, EMPLOYEE acknowledges that EMPLOYEE knowingly
and voluntarily, for just compensation in addition to anything of value to which
EMPLOYEE was already entitled, waives and releases any rights he may have under
the ADEA and/or OWBPA. EMPLOYEE further acknowledges that EMPLOYEE has been
advised and understands, pursuant to the provisions of the ADEA and OWBPA, that:
EMPLOYEE;
(a) This waiver/release is written in a manner understood by
(b) EMPLOYEE is aware of, and/or has been advised of, EMPLOYEE's
rights under the ADEA and OWBPA, and of the legal significance of EMPLOYEE's waiver
of any possible claims EMPLOYEE currently may have under the ADEA, OWBPA and/or
similar age discrimination laws;
(c) EMPLOYEE is entitled to a reasonable time of at least twenty-one
(21) days within which to review and consider this AGREEMENT and the waiver and
release of any rights EMPLOYEE may have under the ADEA, the OWBPA and similar
age discrimination laws; but may, in the exercise of EMPLOYEE's own discretion, sign
or reject this AGREEMENT at any time before the expiration of the twenty-one (21)
days;
(d) The waivers and releases set forth in this AGREEMENT shall not
apply to any rights or claims that may arise under the ADEA and/or OWBPA after the
EFFECTIVE DATE of this AGREEMENT;
(e) EMPLOYEE has been advised by this writing that EMPLOYEE
should consult with an attorney prior to executing this AGREEMENT;
(f) EMPLOYEE has discussed this waiver and release with, and been
advised with respect thereto by, EMPLOYEE's counsel of choice or at least had the
opportunity to do so, and EMPLOYEE represents by signing this AGREEMENT that
EMPLOYEE does not need any additional time within which to review and consider this
AGREEMENT;
(g) EMPLOYEE has seven (7) days following EMPLOYEE's execution
of this AGREEMENT to revoke the AGREEMENT;
(h) Notice of revocation within the seven (7) day revocation period
must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must
state, "I hereby revoke my acceptance of our Agreement of Severance and General
Release;" and
(i) This AGREEMENT shall not be effective until all parties have
signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution of
same ("EFFECTIVE DATE").
5. UNKNOWN CLAIMS- WAIVER OF CIVIL CODE SECTION 1542
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE
and THE CITY understand that California Civil Code section 1542 reads as follows:
"General Release --Claims Extinguished"
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him
or her must have materially affected his or her settlement
with the debtor."
EMPLOYEE and THE CITY hereby waive the protection of California Civil Code section
1542.
tyQA(i
EMPLOYEE Initials THE CITY Initials
6. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might require
a more detailed specification of the claims being released pursuant to the provisions of
Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to, and agrees
with, each other party as follows:
7.1. Advice of Counsel: The parties hereto have received independent
legal advice from their respective attorneys concerning the advisability of entering into
and executing this AGREEMENT or have been given the opportunity to obtain such
advice. The parties acknowledge that they have been represented by counsel of their
own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT;
that they have had this AGREEMENT fully explained to them by such counsel, or have
had such opportunity to do so and that they are fully aware of the contents of this
AGREEMENT and of its legal effect.
7.2. No Fraud in Inducement: No party (nor any officer, agent,
employee, representative, or attorney of or for any party) has made any statement or
representation or failed to make any statement or representation to any other party
regarding any fact relied upon in entering into this AGREEMENT, and neither party relies
upon any statement, representation, omission or promise of any other party in executing
this AGREEMENT, or in making the settlement provided for herein, except as expressly
stated in this AGREEMENT.
7.3. Independent Investigation: Each party to this AGREEMENT has
made such investigation of the facts pertaining to this settlement and this AGREEMENT
and all the matters pertaining thereto, as it deems necessary.
7.4. Mistake Waived: In entering into this AGREEMENT, each party
assumes the risk of any misrepresentation, concealment or mistake. If any party should
subsequently discover that any fact relied upon by it in entering into this AGREEMENT
was untrue, or that any fact was concealed from it, or that its understanding of the facts
or of the law was incorrect, such party shall not be entitled to any relief in connection
therewith, including without limitation on the generality of the foregoing any alleged
right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to
be, and is, final and binding between the parties, regardless of any claims of
misrepresentation, promise made without the intent to perform, concealment of fact,
mistake of fact or law, or any other circumstance whatsoever.
7.5. Later Discovery: The parties are aware that they may hereafter
discover claims or facts in addition to or different from those they now know or believe
to be true with respect to the matters related herein. Nevertheless, it is the intention of
the parties that EMPLOYEE fully, finally and forever settle and release all such matters,
and all claims relative thereto, which do now exist, may exist or have previously existed
against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases
given here shall be, and remain, in effect as full and complete releases of all such
matters, notwithstanding the discovery or existence of any additional or different claims
or facts relative thereto.
7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless
THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or
liabilities sustained by them as a direct result of the violation or breach of the covenants,
warranties, and representations undertaken pursuant to the provisions of this
AGREEMENT. EMPLOYEE understands and agrees that EMPLOYEE shall be exclusively
liable for the payment of all taxes for which EMPLOYEE is responsible, if any, as a result
of EMPLOYEE's receipt of the consideration referred to in Paragraph 3 of this
AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY
PARTIES harmless for payment of tax obligations as may be required by any federal, state
or local taxing authority, at any time, as a result of the payment of the consideration set
forth in Paragraph 3 of this AGREEMENT.
7.7. No Pending Claims and/or Actions: EMPLOYEE represents that
EMPLOYEE has not filed any complaints or charges against THE CITY or THE CITY PARTIES
with any local, state or federal agency or court; that EMPLOYEE will not do so at any time
hereafter for any claim arising up to and including the EFFECTIVE DATE of this
AGREEMENT; and that if any such agency or court assumes jurisdiction of any such
complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE,
whenever or where ever filed, EMPLOYEE will request such agency or court to withdraw
from the matter forthwith. Nothing herein shall be interpreted as a release or waiver of
any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from
participating in any claims or administrative action brought by a state or federal agency.
7.8. Ownership of Claims: EMPLOYEE represents and warrants as a
material term of this AGREEMENT that EMPLOYEE has not heretofore assigned,
transferred, released or granted, or purported to assign, transfer, release or grant, any of
the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE
further warrants and represents that none of the CLAIMS released by EMPLOYEE
thereunder will in the future be assigned, conveyed, or transferred in any fashion to any
other person and/or entity.
7.9. Enforcement Fees and Costs: Should any legal action be required to
enforce the terms of this AGREEMENT, the prevailing party shall not be entitled to
reasonable attorneys' fees and costs.
7.10. Authority: Each party represents to the other that it has the right to
enter into this AGREEMENT, and that it is not violating the terms or conditions of any
other AGREEMENT to which they are a party or by which they are bound by entering into
this AGREEMENT. The parties represent that they will obtain all necessary approvals to
execute this AGREEMENT. It is further represented and agreed that the individuals
signing this AGREEMENT on behalf of the respective parties have actual authority to
execute this AGREEMENT and, by doing so, bind the party on whose behalf this
AGREEMENT has been signed.
8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an
admission by THE CITY of any liability of any kind.
8.2. Governing Law and Venue: This AGREEMENT has been executed
and delivered within the State of California, and the rights and obligations of the parties
shall be construed and enforced in accordance with, and governed by, the laws of the
State of California. Any litigation related to this AGREEMENT shall be venued in the
County of Orange, State of California.
8.3. Full Integration: This AGREEMENT is the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This AGREEMENT may
be amended only by a further agreement in writing, signed by the parties hereto.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall
inure to the benefit of the parties hereto, their respective agents, spouses, employees,
representatives, officials, attorneys, assigns, heirs, and successors in interest.
8.5. Joint Drafting: Each party agrees that it has cooperated in the
drafting and preparation of this AGREEMENT. Hence, in any construction to be made of
this AGREEMENT, the parties agree that same shall not be construed against any party.
8.6. Severabilitv: In the event that any term, covenant, condition,
provision or agreement contained in this AGREEMENT is held to be invalid or void by any
court of competent jurisdiction, the invalidity of any such term, covenant, condition,
provision or agreement shall in no way affect any other term, covenant, condition,
provision or agreement and the remainder of this AGREEMENT shall still be in full force
and effect.
8.7. Titles: The titles included in this AGREEMENT are for reference only
and are not part of its terms, nor do they in any way modify the terms of this
AGREEMENT.
8.8. Counterparts: This AGREEMENT may be executed in counterparts,
and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other signed
counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective
as to all parties. ,
8.9. Notice: Any and all notices given to any party under this
AGREEMENT shall be given as provided in this paragraph. All notices given to either
party shall be made by certified or registered United States mail, or personal delivery,
at the noticing party's discretion, and addressed to the parties as set forth below.
Notices shall be deemed, for all purposes, to have been given and/or received on the
date of personal service or three (3) consecutive calendar days following deposit of
the same in the United States mail.
As to EMPLOYEE:
At EMPLOYEE's home address on file with THE CITY.
As to THE CITY:
City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and
executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has
signed and executed this AGREEMENT, and the attorneys for THE CITY and EMPLOYEE,
if any, have approved as to form as of the dates written below.
DATED: 41 q1 It EMPLOYEE
By:
David Kiff
DATED;
ATTEST:
Leilani Brown, City Clerk
APPROVED AS TO FORM:
THE CITY
m
Aaron Harp, City Attorney
EXECUTIVE LAW GROUP,
a
R. CratR Scott
THE CITY
Marshall "Duffy" Duffield, Mayor
EXHIBIT "B"
FINAL GENERAL RELEASE AGREEMENT
1. PARTIES
This Final General Release Agreement (hereinafter referred to as the
"AGREEMENT") is entered into by and between the City of Newport Beach, a charter city
and municipal corporation (hereinafter referred to as "THE CITY"), and DAVID KIFF, an
individual (hereinafter referred to as "EMPLOYEE").
2. RECITALS
2.1. EMPLOYEE was hired by THE CITY as an at -will city manager
effective on or about September 12, 2009 serving at the pleasure of the City Council of
THE CITY pursuant to a written employment contract. EMPLOYEE is over 40 years of
age.
2.2. The written employment contract governing the terms and
conditions of EMPLOYEE's employment was amended from time to time during
EMPLOYEE's tenure as city manager. The Fifth Amended and Restated Employment
Agreement ("FIFTH AMENDED AGREEMENT") became effective April 25, 2017.
2.3. The Sixth Amended and Restated Employment Agreement ("THE
CONTRACT") became effective April 10, 2018. A copy of the Sixth Amended and
Restated Employment Agreement is attached hereto as Exhibit "A". Under the terms of
THE CONTRACT, THE CITY and EMPLOYEE agreed that in order to effectuate an amicable
conclusion to EMPLOYEE's employment with THE CITY on August 31, 2018, THE CITY
would provide EMPLOYEE a one-time deferred compensation contribution in the
amount of twenty thousand dollars ($20,000) and/or lump sum payment related thereto
in exchange for certain releases contained in a General Release Agreement ("GENERAL
RELEASE AGREEMENT").
2.4. THE CITY and EMPLOYEE further agreed under THE CONTRACT that
in lieu of any form of severance in exchange for certain releases as provided for in the
FIFTH AMENDED AGREEMENT, the conclusion of EMPLOYEE's employment with THE
CITY would instead be subject to the terms and conditions of the GENERAL RELEASE
AGREEMENT and this AGREEMENT.
2.5. Pursuant to THE CONTRACT, THE CITY and EMPLOYEE mutually
agreed to amicably part ways in a manner mutually beneficial to both EMPLOYEE and
THE CITY, such that EMPLOYEE's final day of employment with THE CITY is August 31,
2018. To effectuate an amicable conclusion of EMPLOYEE's employment with THE CITY
on August 31, 2018, THE CITY and EMPLOYEE desire to enter into an agreement whereby
EMPLOYEE receives a one-time lump sum payment in the amount of eighty-four
thousand dollars ($84,000.00) in exchange for executing this AGREEMENT which
contains a general release and waiver of any and all claims that EMPLOYEE may have
against THE CITY, including but not limited to its elected and non -elected officials,
employees, attorneys, and agents. Accordingly, the parties hereto intend by this
AGREEMENT to mutually conclude any and all employment relationships between THE
CITY and EMPLOYEE by means of EMPLOYEE's separation effective August 31, 2018. This
AGREEMENT sets forth the full and complete terms and conditions concluding
EMPLOYEE's employment relationship with the CITY and any obligations related thereto,
including any provided under THE CONTRACT.
2.6. In accordance with this AGREEMENT and with applicable state and
federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's
post -employment rights, including but not limited to, EMPLOYEE's rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee
Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance Portability
and Accountability Act of 1996 ("HIPAA").
3. CONSIDERATION AND MUTUAL RELEASES
3.1 EMPLOYEE shall receive payment to him at the time of his
separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT,
and/or all other wage compensation/benefits owed to EMPLOYEE upon separation of
employment, as required by state, federal or municipal law or THE CONTRACT or any
other agreement with THE CITY.
3.2. In exchange for the waivers and releases set forth herein, and in
lieu of any form of severance contemplated in the FIFTH AMENDED AGREEMENT, THE
CITY shall cause to be paid to EMPLOYEE a one-time lump sum payment of eighty-four
thousand dollars and no cents ($84,000.00), as set forth in Section 7(B) of THE
CONTRACT in the form of a check made payable to EMPLOYEE to be mailed to
EMPLOYEE at EMPLOYEE's home address via certified mail return receipt requested
within ten (10) business days after the EFFECTIVE DATE (as defined below) of this
AGREEMENT. The lump sum payment shall be subject to applicable state and federal
withholdings as determined appropriate by THE CITY.
3.3 In exchange for the lump sum payment provided for herein,
EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and
assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its
predecessors, successors, assigns, officials, employees, representatives, agents, insurers,
attorneys, and all persons and entities acting by, through, under, or in concert with any
of them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and
all claims, charges, complaints, contracts, understandings, liabilities, obligations,
promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages,
actions, causes of action, suits, rights, and demands of any nature whatsoever, known or
unknown, suspected or unsuspected, which EMPLOYEE now has or may acquire in the
future, or which EMPLOYEE ever had, relating to or arising out of any act, omission,
occurrence, condition, event, transaction, or thing which was done, omitted to be done,
occurred or was in effect at any time from the beginning of time up to and including the
date of EMPLOYEE'S execution of this AGREEMENT (hereinafter referred to collectively
as "CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or
local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE
expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically
include, but are not limited to, claims based upon any alleged breach of THE CONTRACT
or any other agreement of employment, any demand for wages, overtime or benefits,
any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of
any duty arising out of contract or tort, any alleged wrongful termination in violation of
public policy, any alleged breach of any express or implied contract for continued
employment, any alleged employment discrimination or unlawful discriminatory act, or
any claim or cause of action including, but not limited to, any and all claims whether
arising under any federal, state or local law prohibiting breach of employment contract,
wrongful termination, or employment discrimination based upon race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, military and veteran status, or any other protected category or
characteristic, and any and all rights or claims arising under the California Labor Code or
Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the
California Fair Employment and Housing Act, California Government Code §§12900 et
seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the
Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local
human rights, civil rights, or employment discrimination or employee rights statute, rule,
or regulation. Nothing herein shall be interpreted as a release or waiver of any workers'
compensation claims or in any way prohibit or prevent EMPLOYEE from participating in
any claims or administrative action brought by a state or federal agency. Furthermore,
nothing herein shall be interpreted as a release or waiver of the THE CITY's statutory
obligations relative to providing defense and indemnification of public employees, if any,
including but not limited to Government Code Sections 825-825.6 and Sections 995-
996.6.
3.4 For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, THE CITY hereby releases, acquits, and forever discharges
EMPLOYEE from any and all claims, charges, complaints, contracts, understandings,
liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts,
expenses, damages, actions, causes of action, suits, rights, and demands of any nature
whatsoever, known or unknown, suspected or unsuspected, which THE CITY now has or
may acquire in the future, or which THE CITY ever had, relating to or arising out of any
act, omission, occurrence, condition, event, transaction, or thing which was done,
omitted to be done, occurred or was in effect at any time from the beginning of time up
to and including the date of THE CITY's execution of this AGREEMENT (hereinafter
referred to collectively as "CITY CLAIMS"), without regard to whether such CITY CLAIMS
arise under the federal, state, or local constitutions, statutes, rules or regulations, or the
common law.
4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA
AND OWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as
the "ADEA") makes it illegal for an employer to discharge any individual or otherwise
discriminate with respect to the nature and privileges of an individual's employment
on the basis that the individual is age forty (40) or older. The Older Workers Benefit
Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et seq., Pub L
101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of
any right or claim under the ADEA, unless the waiver is knowing and voluntary. By
entering into this AGREEMENT, EMPLOYEE acknowledges that EMPLOYEE knowingly
and voluntarily, for just compensation in addition to anything of value to which
EMPLOYEE was already entitled, waives and releases any rights he may have under
the ADEA and/or OWBPA. EMPLOYEE further acknowledges that EMPLOYEE has been
advised and understands, pursuant to the provisions of the ADEA and OWBPA, that:
(a) This waiver/release is written in a manner understood by
EMPLOYEE;
(b) EMPLOYEE is aware of, and/or has been advised of, EMPLOYEE's
rights under the ADEA and OWBPA, and of the legal significance of EMPLOYEE's waiver
of any possible claims EMPLOYEE currently may have under the ADEA, OWBPA and/or
similar age discrimination laws;
(c) EMPLOYEE is entitled to a reasonable time of at least twenty-one
(21) days within which to review and consider this AGREEMENT and the waiver and
release of any rights EMPLOYEE may have under the ADEA, the OWBPA and similar
age discrimination laws; but may, in the exercise of EMPLOYEE's own discretion, sign
or reject this AGREEMENT at any time before the expiration of the twenty-one (21)
days;
(d) The waivers and releases set forth in this AGREEMENT shall not
apply to any rights or claims that may arise under the ADEA and/or OWBPA after the
EFFECTIVE DATE of this AGREEMENT;
(e) EMPLOYEE has been advised by this writing that EMPLOYEE
should consult with an attorneyrp for to executing this AGREEMENT;
(f) EMPLOYEE has discussed this waiver and release with, and been
advised with respect thereto by, EMPLOYEE's counsel of choice or at least had the
opportunity to do so, and EMPLOYEE represents by signing this AGREEMENT that
EMPLOYEE does not need any additional time within which to review and consider this
AGREEMENT;
(g) EMPLOYEE has seven (7) days following EMPLOYEE's execution
of this AGREEMENT to revoke the AGREEMENT;
(h) Notice of revocation within the seven (7) day revocation period
must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must
state, "I hereby revoke my acceptance of our Agreement of Severance and General
Release;" and
(i) This AGREEMENT shall not be effective until all parties have
signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution of
same ("EFFECTIVE DATE").
S. UNKNOWN CLAIMS- WAIVER OF CIVIL CODE SECTION 1542
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE
and THE CITY understand that California Civil Code section 1542 reads as follows:
"General Release --Claims Extinguished"
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him
or her must have materially affected his or her settlement
with the debtor."
EMPLOYEE and THE CITY hereby waive the protection of California Civil Code section
1542.
EMPLOYEE Initials THE CITY Initials
6. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might require
a more detailed specification of the claims being released pursuant to the provisions of
Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to, and agrees
with, each other party as follows:
7.1. Advice of Counsel: The parties hereto have received independent
legal advice from their respective attorneys concerning the advisability of entering into
and executing this AGREEMENT or have been given the opportunity to obtain such
advice. The parties acknowledge that they have been represented by counsel of their
own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT;
that they have had this AGREEMENT fully explained to them by such counsel, or have
had such opportunity to do so and that they are fully aware of the contents of this
AGREEMENT and of its legal effect.
7.2. No Fraud in Inducement: No party (nor any officer, agent,
employee, representative, or attorney of or for any party) has made any statement or
representation or failed to make any statement or representation to any other party
regarding any fact relied upon in entering into this AGREEMENT, and neither party relies
upon any statement, representation, omission or promise of any other party in executing
this AGREEMENT, or in making the settlement provided for herein, except as expressly
stated in this AGREEMENT.
7.3. Independent Investigation: Each party to this AGREEMENT has
made such investigation of the facts pertaining to this settlement and this AGREEMENT
and all the matters pertaining thereto, as it deems necessary.
7.4. Mistake Waived: In entering into this AGREEMENT, each party
assumes the risk of any misrepresentation, concealment or mistake. If any party should
subsequently discover that any fact relied upon by it in entering into this AGREEMENT
was untrue, or that any fact was concealed from it, or that its understanding of the facts
or of the law was incorrect, such party shall not be entitled to any relief in connection
therewith, including without limitation on the generality of the foregoing any alleged
right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to
be, and is, final and binding between the parties, regardless of any claims of
misrepresentation, promise made without the intent to perform, concealment of fact,
mistake of fact or law, or any other circumstance whatsoever.
7.5. Later Discovery: The parties are aware that they may hereafter
discover claims or facts in addition to or different from those they now know or believe
to be true with respect to the matters related herein. Nevertheless, it is the intention of
the parties that EMPLOYEE fully, finally and forever settle and release all such matters,
and all claims relative thereto, which do now exist, may exist or have previously existed
against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases
given here shall be, and remain, in effect as full and complete releases of all such
matters, notwithstanding the discovery or existence of any additional or different claims
or facts relative thereto.
7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless
THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or
liabilities sustained by them as a direct result of the violation or breach of the covenants,
warranties, and representations undertaken pursuant to the provisions of this
AGREEMENT. EMPLOYEE understands and agrees that EMPLOYEE shall be exclusively
liable for the payment of all taxes for which EMPLOYEE is responsible, if any, as a result
of EMPLOYEE's receipt of the consideration referred to in Paragraph 3 of this
AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY
PARTIES harmless for payment of tax obligations as may be required by any federal, state
or local taxing authority, at any time, as a result of the payment of the consideration set
forth in Paragraph 3 of this AGREEMENT.
7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute
all such further and additional documents as shall be reasonable, convenient, necessary
or desirable to carry out the provisions of this AGREEMENT. Following the conclusion of
EMPLOYEE's employment with THE CITY on August 31, 2018, EMPLOYEE shall provide
THE CITY with consultation services (including deposition, hearing, or trial testimony) in
any litigation involving THE CITY which is reasonably related to acts or occurrences
transpiring during EMPLOYEE's employment. Said services shall be only be provided if
requested by the City Attorney and EMPLOYEE shall be paid at a rate of $100.00 per
hour, up to a maximum of $10,000.00, for any services so requested. Additionally, if
EMPLOYEE relocates from the County of Orange, THE CITY shall pay for EMPLOYEE's
coach air travel if THE CITY requests that EMPLOYEE attend any deposition, hearing or
trial related to his employment with THE CITY.
7.8. Return of Confidential Information and Property: Prior to August
31, 2018, EMPLOYEE shall return to the City Clerk, all City keys, equipment, computer
identification cards or codes, and other equipment or materials or confidential
documents provided to or obtained by EMPLOYEE during the course of EMPLOYEE's
employment with THE CITY.
7.9 No Pending Claims and/or Actions: EMPLOYEE represents that
EMPLOYEE has not filed any complaints or charges against THE CITY or THE CITY PARTIES
with any local, state or federal agency or court; that EMPLOYEE will not do so at any time
hereafter for any claim arising up to and including the EFFECTIVE DATE of this
AGREEMENT; and that if any such agency or court assumes jurisdiction of any such
complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE,
whenever or where ever filed, EMPLOYEE will request such agency or court to withdraw
from the matter forthwith. Nothing herein shall be interpreted as a release or waiver of
any workers' compensation claims or in any way prohibit or prevent EMPLOYEE from
participating in any claims or administrative action brought by a state or federal agency.
7.10. Ownership of Claims: EMPLOYEE represents and warrants as a
material term of this AGREEMENT that EMPLOYEE has not heretofore assigned,
transferred, released or granted, or purported to assign, transfer, release or grant, any of
the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE
further warrants and represents that none of the CLAIMS released by EMPLOYEE
thereunder will in the future be assigned, conveyed, or transferred in any fashion to any
other person and/or entity.
7.11 Enforcement Fees and Costs: Should any legal action be required to
enforce the terms of this AGREEMENT, the prevailing party shall not be entitled to
reasonable attorneys' fees and costs.
7.12 Authority: Each party represents to the other that it has the right to
enter into this AGREEMENT, and that it is not violating the terms or conditions of any
other AGREEMENT to which they are a party or by which they are bound by entering into
this AGREEMENT. The parties represent that they will obtain all necessary approvals to
execute this AGREEMENT. It is further represented and agreed that the individuals
signing this AGREEMENT on behalf of the respective parties have actual authority to
execute this AGREEMENT and, by doing so, bind the party on whose behalf this
AGREEMENT has been signed.
8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an
admission by THE CITY of any liability of any kind.
8.2. Governing Law and Venue: This AGREEMENT has been executed
and delivered within the State of California, and the rights and obligations of the parties
shall be construed and enforced in accordance with, and governed by, the laws of the
State of California. Any litigation related to this AGREEMENT shall be venued in the
County of Orange, State of California.
8.3. Full Integration: This AGREEMENT is the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This AGREEMENT may
be amended only by a further agreement in writing, signed by the parties hereto.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall
inure to the benefit of the parties hereto, their respective agents, spouses, employees,
representatives, officials, attorneys, assigns, heirs, and successors in interest.
8.5. Joint Drafting: Each party agrees that it has cooperated in the
drafting and preparation of this AGREEMENT. Hence, in any construction to be made of
this AGREEMENT, the parties agree that same shall not be construed against any party.
8.6. Severability: In the event that any term, covenant, condition,
provision or agreement contained in this AGREEMENT is held to be invalid or void by any
court of competent jurisdiction, the invalidity of any such term, covenant, condition,
provision or agreement shall in no way affect any other term, covenant, condition,
provision or agreement and the remainder of this AGREEMENT shall still be in full force
and effect.
8.7. Titles: The titles included in this AGREEMENT are for reference only
and are not part of its terms, nor do they in any way modify the terms of this
AGREEMENT.
8.8. Counterparts: This AGREEMENT may be executed in counterparts,
and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other signed
counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective
as to all parties.
8.9. Notice: Any and all notices given to any party under this
AGREEMENT shall be given as provided in this paragraph. All notices given to either
party shall be made by certified or registered United States mail, or personal delivery,
at the noticing party's discretion, and addressed to the parties as set forth below.
Notices shall be deemed, for all purposes, to have been given and/or received on the
date of personal service or three (3) consecutive calendar days following deposit of
the same in the United States mail.
As to EMPLOYEE:
At EMPLOYEE's home address on file with THE CITY.
As to THE CITY:
City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and
executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has
signed and executed this AGREEMENT, and the attorneys for THE CITY and EMPLOYEE,
if any, have approved as to form as of the dates written below.
DATED:
DATED:
ATTEST:
Leilani Brown, City Clerk
EMPLOYEE
By:
David Kiff
THE CITY
By:
Marshall "Duffy" Duffield, Mayor
APPROVED AS TO FORM:
THE CITY
By:
L::U
Qz
Aaron Harp, City Attorney
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2018-22 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 101h day of April, 2018; and the same was so passed and adopted by the
following vote, to wit:
AYES: Council Member Herdman, Council Member Kevin Muldoon, Council Member Diane
Dixon, Council Member Scott Peotter, Council Member Brad Avery, Mayor Pro Tem Will
O'Neill, Mayor Duffy Duffield
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 11th day of April, 2018.
X�ri AW /
Leilani I. Brown
City Clerk
Newport Beach, California