HomeMy WebLinkAbout2018-63 - Appointing Grace Leung City Manager Effective September 4, 2018 and Authorizing the Mayor to Execute the Employment Agreement between the City of Newport Beach and Grace LeungRESOLUTION NO. 2018-63
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPOINTING
GRACE LEUNG CITY MANAGER EFFECTIVE
SEPTEMBER 4, 2018 AND AUTHORIZING THE MAYOR
TO EXECUTE THE EMPLOYMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
GRACE LEUNG
WHEREAS, following the announcement of the retirement of City Manager Dave
Kiff, the City Council conducted an open, transparent, and competitive national
recruitment to fill the position;
WHEREAS, at the conclusion of the rigorous recruitment process, the City Council
selected Grace Leung to be the new City manager;
WHEREAS, the City of Newport Beach ("City") desires to enter into an
Employment Agreement with Grace Leung, which is attached hereto as Exhibit "A" and
incorporated herein by this reference;
WHEREAS, under the Employment Agreement, Grace Leung's base annual
salary shall be $265,000 (Two Hundred Sixty -Five Thousand Dollars), and Grace Leung
shall receive other benefits including, but not limited to, cafeteria allowances, paid leaves,
disability and life insurance, which are tied to the terms of the Key and Management
Compensation Plan; and
WHEREAS, by adopting this resolution, the City Council intends to approve and
authorize the Mayor to execute the attached Employment Agreement with Grace Leung.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council hereby appoints Grace Leung as the City Manager
of the City of Newport Beach pursuant to City Charter Section 500. The effective date of
the appointment of Grace Leung as the City Manager shall be September 4, 2018. The
City Council makes this appointment by a majority vote, and believes that Grace Leung
is the best qualified on the basis of his or her executive and administrative qualifications,
with special reference to his or her experience in, and his or her knowledge of, accepted
practice in respect to the duties of the office as set forth in the City Charter. The City
Manager shall serve at the pleasure of the City Council.
Section 2: The City Council does hereby authorize the Mayor to execute the
attached Employment Agreement between the City and Grace Leung.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Resolution No. 2018-63
Page 2 of 2
Section 4: 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.
Section 5: The City Council finds the appointment of the City Manager, the
execution of the Employment Agreement, and 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 6: 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 14th day of August, 2018.
ATTEST:
0&�J
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY
ATTORNEY'S OFFICE
C/L/Ill lit
Aaron C. Harp
City Attorney
Exhibit A: Employment Agreement
f �
Marshall "D ffy" Duffield
Mayor
CITY OF NEWPORT BEACH
CITY MANAGER EMPLOYMENT AGREEMENT
This CITY MANAGER EMPLOYMENT AGREEMENT ("Agreement") is made effective as
of September 4, 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 Grace Leung ("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. Pursuant to Section 500 of the Charter of the City, the City Manager is to be
appointed by the City Council. The Charter of the City further provides that "[i]n the
selection of a City Manager the City Council shall screen all qualified applicants and
other qualified persons known by the Council to be available. It shall appoint by a
majority vote, the person that it believes to be best qualified on the basis of his or her
executive and administrative qualifications, with special reference to his or her
experience in, and his or her knowledge of, accepted practice in respect to the duties
of the office as set forth in this Charter."
C. Following an open recruitment and an extensive interviewing and screening process
of numerous candidates, the City Council believes Employee to be the best qualified,
on the basis of Employee's experience, to serve as the City's City Manager and to
perform the duties of the City Manager set forth in Section 504 of the Charter of the
City and section 2.08.040 of the City's Municipal Code ("NBMC").
D. The City desires to employ Employee as City Manager and to enter into an
Agreement with Employee upon the terms and conditions in this Agreement.
E. Employee is willing to accept such employment on the terms and conditions set forth
in this Agreement.
Page 1
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties
as follows:
SECTION 1: Term and Notice of Non -Renewal
This Agreement shall become effective September 4, 2018 ("Effective Date"). Subject to
the 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 six (6) months prior to expiration of the original
Term or any subsequent automatic extension of the Term of this Agreement. 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 Authoritv
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 NBMC and all relevant resolutions, rules, regulations, procedures, applicable
job description(s) and state codes, as they currently or may in the future exist, specifically
including but not limited to those set forth in the "City Manager" job description attached
hereto as Exhibit A and incorporated herein by this reference. Employee shall exercise
such power and authority and perform such other functions and duties, not inconsistent
with this Agreement, as Employer, by 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 Two
Hundred and Sixty -Five Thousand Dollars ,($265,000.00) ("Base Salary"). The
Base Salary shall be subject to deduction and withholding of any and all sums
required for federal or state income tax, pension contributions, and all other taxes,
deductions or withholdings required by then current state, federal or local law,
prorated and paid on Employer's normal paydays for the City Manager, City
Attorney, City Clerk, and any Department Directors not covered by collective
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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.
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 anytime 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. Flex Leave. Upon the Effective Date of this Agreement, Employee will be provided
a one-time benefit of eighty (80) hours of Flex Leave. Thereafter, Employee shall
accumulate Flex Leave as provided in the City's Key and Management
Compensation Plan ("Compensation Plan"), Executive Management category,
Years of Continuous Service, less than fifteen (15) years, at the current rate of
8.77 hours per Pay Period. Employee's Maximum accrual for Flex Leave is limited
to four hundred (400) hours, and no Flex Leave shall further accrue beyond said
maximum. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
B. Administrative Leave. Upon the Effective Date of this Agreement, Employee shall
be provided eighty (80) hours of Administrative Leave. Thereafter, Employee shall
be entitled to eighty (80) hours of Administrative Leave per calendar year and shall
be credited with said leave the first pay period in January of 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 above eighty (80) hours
shall arise or occur. Upon separation from employment, Employee shall be entitled
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to payment of any hours remaining of the eighty (80) entitled hours that were not
used in the calendar year. Consistent with the Compensation Plan, there is no
right to sell back any accumulated Administrative Leave.
C. 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.
D. 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 One Thousand Two Hundred Fifty Dollars ($1,250).
E. Automobile Allowance. Employee's duties require Employee 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 Five
Hundred Dollars ($500) per month as an automobile allowance so that Employee
may respond to these demands of City business.
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management Employee.
G. Attorneys' Fees. Upon the submission of invoices acceptable to the City Attorney,
the City shall reimburse Employee for the reasonable, actual legal fees and costs
incurred by Employee for legal review of this Agreement, up to a maximum of Four
Thousand Dollars ($4,000).
H. Deferred Compensation. By October 31, 2018, Employer shall make a deferred
compensation contribution on Employee's behalf in the amount of Five Thousand
Three Hundred Dollars ($5,300) ("Deferred Compensation Contribution").
Page 4
Thereafter, provided Employee is employed by Employer on the anniversary date
of this Agreement (i.e. September 4), Employer shall make a Deferred
Compensation Contribution on Employee's behalf on or before October 31 of the
applicable year.
Amendment of Benefits. Except as expressly provided in this Section, Employee's
benefits provided under this Section 4 are not tied to the compensation of any other
City employee or group of City employees.
J. Retirement. Employee is a California Public Employees' Retirement System
("CaIPERS") classic member. Accordingly, Employee shall be entitled to
participate in the City's Tier 2 "Classic" CaIPERS retirement program. Employee
shall contribute 13.00% of compensation earnable towards Employee's retirement
benefit broken down as follows: 7% of the required member contribution; and 6%
as cost sharing in accordance with Government Code section 20516(f).
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.
Employer agrees either to pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Page 5
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. 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 (ICMA), 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.
C. 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.
D. 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.
Page 6
SECTION 6: At -Will Employment Relationship
A. Consistent with Article V of the City Charter, Section 500, 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,
below.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from Employee's employment with Employer, subject only
to Employee providing forty-five (45) calendar days prior written notice to Employer
of the effective date of Employee's resignation. Upon the effective date of
resignation, Employee forfeits all compensation and benefits owing for the
remainder of the term of this Agreement, as well as any potential "Severance" pay
per Section 7 below.
SECTION 7: Severance and Benefit Payoff at Termination, and Agreement of
Separation, Severance, and General Release
A. Termination without Cause. 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 Agreement of Separation, Severance, and General Release in the form
attached hereto as Exhibit B, then Employer shall pay Employee a lump sum
benefit equal to six (6) months of Employee's then applicable Base Salary, and six
(6) months of medical coverage as provided under the Compensation Plan and/or
EPM as long as Employee is already enrolled and receiving medical coverage
through the City medical benefits plan at the time of termination.
Page 7
In accordance with Government Code Section 53260 (a), in no event shall
Employee receive a cash settlement that is greater than the monthly Base Salary
of Employee multiplied by the number of months left on the unexpired term of the
Agreement.
The lump sum payment described in this Section 7 (A) shall be referred to herein
as "Severance".
B. Termination with Cause. 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 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 only mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. 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
Page 8
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 resigns or otherwise 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 and Administrative Leave.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote Employee's full energies, interest, abilities and productive time to
the performance of this Agreement and utilize Employee's 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.
Page 9
SECTION 9: Confidentiality and Non-Disaaranement
A. Employee acknowledges that in the course of Employee's 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, City management staff, nor the Employee shall make any written, oral, or
electronic statement to any member of the public, the press, or any City employee
concerning the Employee's termination except in the form of a joint press release
or statement, which is mutually agreeable to City and Employee. The joint press
release or statement shall not contain any text or information that is disparaging to
either Party. Either Party may verbally repeat the substance of the joint press
release or statement in response to any inquiry. Nothing herein shall prohibit any
Council Member or Employee from exercising their rights under the First
Amendment to the United States Constitution.
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 Employee's duties and responsibilities to Employer.
Page 10
SECTION 11: Indemnification
To the extent mandated by the California Government Code, the City shall defend, hold
harmless, and indemnify Employee against any tort, professional liability, claim or
demand, or other legal action arising out of an alleged act or omission occurring in the
performance of Employee's services under this Agreement. This section shall not apply
to any intentional tort or crime committed by Employee, to any action outside the course
and scope of the services provided by Employee under this Agreement, or any other
intentional or malicious conduct or gross negligence of Employee.
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 Employee's 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: Grace Leung
at the home address then shown in Employer's files
Page 11
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. 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, Employee's 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 Employee's 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.
Page 12
E. Conflict with City Charter or Municipal Code. In the event of a conflict between
the provisions of this Agreement and the City Charter, or this Agreement and the
NBMC, the City Charter or the NBMC shall prevail over this Agreement. All other
City personnel ordinances, resolutions, rules, and policies shall apply to Employee
in the same manner as applied to other Executive Management Employees.
F. Employee's Independent Review: Employee acknowledges that Employee has
had the opportunity and has conducted an independent review of the financial and
legal effects of this Agreement. Employee acknowledges that Employee 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 Employee has been advised to obtain, and has availed himself
or herself of, legal advice with respect to the terms and provisions of this
Agreement.
(Signatures on Following Page)
Page 13
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
arshall "Dyi " Duffield, Mayor
Date:
APPROVED AS TO FORM:
CITY ATTO EY'S OFFICE
By: —( ,
Aar n C. Harp, City Attorney
Date: D . 3 / b
ATTEST:
By:
bm�—
Leilani*Brov)n,
City Clerk
Date: K,1V 1 ff
EMPLOYEE,
An Individual
By:
G Leung
Date:— 1 �f (�
Page 14
Exhibit A
��,�wPORr
o� CITY MANAGER
Class Code:
}�+ 600019
e�'•` yr Bargaining Unit: Key b Management - Executive Management
SI FO Rr
CRY OF NE'wPCRT BEACH
Revision Date: 3A 30, 2014
SALARY RANGE
$15,684.93 - $23,526.53 Monthly
.$188,219.20 - $282,318.40 Annually
DEFINITION:
Responsible for the administrative branch of the City government and provides professional non-partisan administration within
the framework of law and policy as set by the City Council; serves the City Council, carries out their dictates and keeps them
informed on all important phases of City activities; responsible for appointment and effective coordination of the tasks of all
department heads; and is also responsible for enforcement of the laws of the state pertaining to the City, provisions of the
Charter and ordinances of the City.
SUPERVISION RECEIVED AND EXERCISED• Provides direct supervision to all department heads, except the City Clerk and
the City Attorney, and to the City Manager's immediate staff.
ESSENTIAL DUTIES,
Duties may include, but are not limited to, the following:
• Keep the Council informed on all significant matters relative to services and activities of the City; advise Council on the most
appropriate organizational structure for City services;
• Exercise general supervision over public facilities and properties;
• Provide leadership for civic movements when so authorized by the City Council;
• Exercise control over all administrative office and departments of the City except those appointed by the City Council;
• Appoint, suspend or remove, subject to provisions of the Charter, all department heads under his supervision; prepare the
annual budget for Council consideration and administer it after adoption;
• Assume general responsibility for public relations of the City and assure that all franchises, permits and contracts granted by
the City are faithfully observed; and
• Perform related duties as assigned.
OUALIFICATIONS:
To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below
are representative of the knowledge, skill, and/or ability required.
Ability to:
Deal with a wide variety of people in an effective manner:
Provide direction to a large municipal organization;
Make public appearances and prepare and deliver oral and written reports;
Analyze a wide range of complex issues and execute timely decisions;
Work effectively with higher levels of government;
Master complex financial matters; and
Maintain respect of others.
This position my be required to work overtime hours as needed
EXPERIENCE & TRAINING AND LICENSE/CERTIFICATE•
A combination of experience and training that would likely provide the required knowledge and abilities may be qualifying. A
typical way to obtain the knowledge and abilities would be:.
Experience: Eight years in the city management field with at least three as City Manager in another city and the remaining as
Assistant City Manager or Administrative Assistant.
Training: A graduate degree with major course work in public administration. GED Level 5.
License/Certificate: Possession of, or ability to obtain, an appropriate. valid California driver's license
Additional Requirement: Candidates deemed most qualified, as reflected in their application materials, will be invited to
continue in the recruitment process. At that time, background information will be requested from the candidates. Prior to
employment, the prospective candidate must successfully complete a thorough background review, including being
fingerprinted by the Newport Beach Police Department. The resulting report of your conviction history, (if any), will be
evaluated along with the other information received in connection with your application. Except as otherwise required by law, a
criminal conviction will not necessarily disqualify you from the position. The nature, date, surrounding circumstances, and the
relevance of the offense to the position applied for may, however, be considered.
Disaster Service Worker: In accordance with Government Code Section 3100, City of Newport Beach Employees, in the
event of a disaster, are considered disaster service workers and may be asked to respond accordingly.
EXHIBIT B
AGREEMENT OF SEPARATION, SEVERANCE AND GENERAL RELEASE
1. PARTIES
This Agreement of Separation, Severance, and General Release (hereinafter
referred to as the "AGREEMENT") is entered into by and between the City of Newport
Beach, a charter city and municipal corporation (hereinafter referred to as "THE CITY"), and
Grace Leung, an individual (hereinafter referred to as "EMPLOYEE").
2. RECITALS
2.1. EMPLOYEE was hired by THE CITY as an at -will City Manager
effective September 4, 2018 serving at the pleasure of the City Council of THE CITY
pursuant to a written contract, a copy of which is attached hereto as Exhibit "A" ("THE
CONTRACT"). EMPLOYEE is currently _ years old.
2.2. THE CITY and EMPLOYEE desire that EMPLOYEE resign and enter
into a severance agreement whereby EMPLOYEE receives severance compensation in
exchange for executing a general release and waiver of any and all claims that EMPLOYEE
may have against THE CITY, including but not limited to its elected and non -elected officials,
employees, attorneys, and agents. Accordingly, the parties hereto intend by this
AGREEMENT to mutually conclude any and all employment relationships between THE
CITY and EMPLOYEE by means of EMPLOYEE's voluntary separation as of
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.
2.3 In accordance with this AGREEMENT and with applicable state and
federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of
EMPLOYEE's post -employment rights, including but not limited to, EMPLOYEE's rights
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the
Employee Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA").
3. CONSIDERATION
3.1 EMPLOYEE shall receive payment at the time of EMPLOYEE's
voluntary separation, all earned salary, accrued fringe benefits as detailed in THE
CONTRACT, and/or all other wage compensation/benefits owed to EMPLOYEE upon
separation of employment, as required by law or THE CONTRACT or any other agreement
with THE CITY.
EXHIBIT B — Page 1
3.2. In exchange for the waivers and releases set forth herein, THE CITY
shall also cause to be paid to EMPLOYEE an additional compensatory payment by means
of severance, settlement and release in the form of a lump sum amount of
and _ cents ($ .00), as set forth in THE
CONTRACT in the form of a check made payable to EMPLOYEE to be mailed to
EMPLOYEE at EMPLOYEE's home address via certified mail return receipt requested
within ten (10) business days after the EFFECTIVE DATE (as defined below) of this
AGREEMENT.
3.3 In exchange for the severance payment provided for herein,
EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors,
and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its
predecessors, successors, assigns, officials, employees, representatives, agents, insurers,
attorneys, and all persons and entities acting by, through, under, or in concert with any of
them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and all
claims, charges, complaints, contracts, understandings, liabilities, obligations, promises,
benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions,
causes of action, suits, rights, and demands of any nature whatsoever, known or unknown,
suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or
which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence,
condition, event, transaction, or thing which was done, omitted to be done, occurred or was
in effect at anytime from the beginning of time up to and including
(hereinafter referred to collectively as "CLAIMS"), without regard to whether such CLAIMS
arise under the federal, state, or local constitutions, statutes, rules or regulations, or the
common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this
AGREEMENT specifically include, but are not limited to, claims based upon any alleged
breach of THE CONTRACT or any other agreement of employment, any demand for wages,
overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA,
any alleged breach of any duty arising out of contract or tort, any alleged wrongful
termination in violation of public policy, any alleged breach of any express or implied contract
for continued employment, any alleged employment discrimination or unlawful
discriminatory act, or any claim or cause of action including, but not limited to, any and all
claims whether arising under anyfederal, state or local law prohibiting breach of employment
contract, wrongful termination, or employment discrimination based upon age, race, color,
sex, religion, handicap or disability, national origin or any other protected category or
characteristic, and any and all rights or claims arising under the California Labor Code or
Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the
California Fair Employment and Housing Act, California Government Code §§12, 900 et
seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public
Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human
rights, civil rights, or employment discrimination or employee rights statute, rule, or
regulation.
EXHIBIT B — Page 2
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 EMPLOYEE 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 attorney )r rlor 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, and that EMPLOYEE
does not need any additional time within which to review and consider this AGREEMENT;
(g) EMPLOYEE has seven (7) days following _ execution of this
AGREEMENT to revoke the AGREEMENT;
EXHIBIT B — Page 3
(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, 1
hereby revoke my acceptance of our Agreement of Severance and General Release;" and
(i) This AGREEMENT shall not be effective until all parties have signed
the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution
("EFFECTIVE DATE").
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE
understands that California Civil Code section 1542 reads as follows:
"General Release --Claims Extinguished"
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his 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 hereby waives the protection of California Civil Code section 1542.
6. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might require
a more detailed specification of the claims being released pursuant to the provisions of
Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to, and agrees
with, each other party as follows:
7.1. Advice of Counsel: The parties hereto have received independent
legal advice from their respective attorneys concerning the advisability of entering into and
executing this AGREEMENT or have been given the opportunity to obtain such advice. The
parties acknowledge that they have been represented by counsel of their own choice in the
negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have
had this AGREEMENT fully explained to them by such counsel, or have had such
opportunity to do so and that they are fully aware of the contents of this AGREEMENT and
of its legal effect.
7.2. No Fraud in Inducement: No party (nor any officer, agent, employee,
representative, or attorney of or for any party) has made any statement or representation or
failed to make any statement or representation to any other party regarding any fact relied
upon in entering into this AGREEMENT, and neither party relies upon any statement,
representation, omission or promise of any other party in executing this AGREEMENT, or
EXHIBIT B — Page 4
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. EMPLOYEE shall provide THE
CITY with consultation services (including deposition or trial testimony) in any litigation
involving THE CITY which is reasonably related to acts or occurrences transpiring during
EMPLOYEE's employment. Said services shall be provided as needed by THE CITY at a
rate of $100.00 per hour.
EXHIBIT B — Page 5
7.8. Return of Confidential Information and Property: Prior to the
separation date, EMPLOYEE shall submit a written inventory of, and return to the City Clerk,
all City keys, equipment, computer identification cards or codes, and other equipment or
materials or confidential documents provided to or obtained by EMPLOYEE during the
course of 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.
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 be entitled to reasonable
attorneys' fees and costs in addition to any other relief to which that party may be entitled.
7.12 Authori : Each party represents to the other that it has the right to
enter into this AGREEMENT, and that it is not violating the terms or conditions of any other
AGREEMENT to which they are a party or by which they are bound by entering into this
AGREEMENT. The parties represent that they will obtain all necessary approvals to
execute this AGREEMENT. It is further represented and agreed that the individuals signing
this AGREEMENT on behalf of the respective parties have actual authority to execute this
AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has
been signed.
8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an
admission by THE CITY of any liability of any kind. THE CITY denies any liability in
connection with any claim and intends hereby solely to avoid potential claims and/or litigation
and buy its peace.
8.2. Governing Law: This AGREEMENT has been executed and delivered
within the State of California, and the rights and obligations of the parties shall be construed
and enforced in accordance with, and governed by, the laws of the State of California.
EXHIBIT B — Page 6
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 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.
EXHIBIT B — Page 7
As to THE CITY:
City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 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:
THE CITY
EMPLOYEE
Um
DATED: By:
ATTEST:
City Clerk
APPROVED AS TO FORM:
[OFFICE OF THE CITY ATTORNEY]
M
Aaron Harp, City Attorney
Grace Leung
Mayor
EXHIBIT B — Page 8
[EMPLOYEE's LAW FIRM]
m -
[Counsel] [Counsel]
EXHIBIT B — Page 9
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. 2018-63 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 141h day of August, 2018; and the same was so passed and adopted by the
following vote, to wit:
AYES: Council Member Herdman, Council Member Diane Dixon, Council Member Kevin
Muldoon, 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 251h day of July, 2018.
Leilani I. Br wn
City Clerk
Newport Beach, California