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HomeMy WebLinkAbout09 - First Amended and Restated Employment Agreement with the City of Newport Beach Police ChiefQ SEW Pp�T CITY OF z NEWPORT BEACH c�<,FORN'P City Council Staff Report February 25, 2025 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Grace K. Leung, City Manager - 949-644-3001, gleung@newportbeachca.gov PREPARED BY: Sarah Rodriguez, Human Resources Manager - 949-644-3301, srodriguez@newportbeachca.gov TITLE: First Amended and Restated Employment Agreement with the City of Newport Beach Police Chief ABSTRACT: The terms and conditions of the City of Newport Beach's Police Chief employment are set forth in their respective Employment Agreement with the City of Newport Beach. Following City Council discussion and direction at the February 11, 2025 meeting, the City Manager wishes to revisit the employment terms and make an adjustment to the compensation. RECOMMENDATIONS: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Authorize the City Manager to execute a First Amended and Restated Employment Agreement between the City of Newport Beach and David Miner for Police Chief Services. DISCUSSION: The terms and conditions of the City of Newport Beach's Police Chief employment are set forth in his Employment Agreement with the City which was approved by the City Council on February 11, 2025. The Employment Agreement provided in pertinent part for an annual base salary of $270,478; and base pay adjustments equal to any cost -of -living adjustments (COLAs) received by the Newport Beach Police Management Association (NBPMA) pursuant to an approved Memorandum of Understanding (MOU) or Side Letter Agreement (SLA) between the NBPMA and the City. The proposed terms of a First Amended and Restated Employment Agreement (Attachment A) include the following- 9-1 First Amended and Restated Employment Agreement with the City of Newport Beach Police Chief February 25, 2025 Page 2 • Annual — Base Salary Increase. Beginning in 2026, and each year thereafter, Employee shall receive a Base Salary increase in compensation equal to three percent (3%) of the Base Salary or, if a smaller increase in Base Salary will place Employee at the top of the salary schedule for the Police Chief position, Employee's Base Salary shall be increased to the maximum provided for the Police Chief position in the salary schedule adopted by the City Council. For example, if a two percent (2%) increase will place Employee at the top of the salary schedule for the Police Chief position, the increase provided in this subsection for that year would be two percent (2%). The increase shall be effective for the pay period that includes February 25. In no event shall the increases provided for in this subsection exceed the approved salary range adopted by resolution of the City Council. • Performance — Base Salary Increase. Employer, via the City Manager, shall conduct annual performance examinations on or about the anniversary date of the Effective Date of this Agreement, or, consistent with that of other Executive Management Employees. In addition to the automatic Base Salary increase provided for in Subsection 4 (B), if the City Manager determines that the Police Chief's performance is satisfactory, the City Manager may increase the Police Chief's Base Salary by a percentage the City Manager deems appropriate, provided that any increase shall not exceed the approved salary range for the Police Chief position adopted by resolution of the City Council. • Newport Beach Police Management Association Salary Schedule Adjustments — Base Salary Increase. Employee shall receive a Base Salary increase in compensation equal to the salary range adjustment(s) (percentage increase(s)) provided to the unit members of the Newport Beach Police Management Association (NBPMA), as set forth in an approved Memorandum of Understanding (MOU) or Side Letter Agreement (SLA) between the NBPMA and the City. Currently, the next salary range adjustment for the NBPMA is scheduled for July 12, 2025, in the amount of three percent (3%), and is reflected in the City Council adopted salary schedule. The Parties expressly agree that the salary range for the Police Chief, which is reflected in the Council approved salary schedule, shall be adjusted by the same percentage increase(s) as provided to unit members of the NBPMA, as set forth in an approved MOU or SLA. • Market Survey — Salary Schedule Adjustment. By February 26, 2026, Employer shall conduct a compensation survey for the position of Police Chief, using those agencies approved by the City Council as comparator agencies on November 19, 2024. If the compensation survey for the comparator agencies indicates the base salary for the position of Police Chief is below average, the City Manager shall propose an increase to the Newport Beach salary schedule for the position of Police Chief that reflects the base salary schedule range of the comparator agencies within two months of the completion of the salary survey. • Scholastic Achievement Pay and Uniform Allowance. Additional language added as follows: The Parties agree that the scholastic achievement pay/uniform allowance does not impact or limit the amount that may be paid as Base Salary. 9-2 First Amended and Restated Employment Agreement with the City of Newport Beach Police Chief February 25, 2025 Page 3 FUNDING REQUIREMENTS: The adopted budget includes sufficient funding for the Employment Agreement. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — First Amended and Restated Employment Agreement 9-3 ATTACHMENT A FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH POLICE CHIEF This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of February 25, 2025 ("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 MINER ("Employee"), an individual (sometimes individually referred to herein as "Party" or 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 under the statutes of the State of California and the City Charter. B. Employee has been continuously employed by Employer as Police Chief since February 22, 2025. Employee is currently employed under an Employment Agreement approved February 11, 2022 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede the prior Employment Agreement, and that upon execution of this Agreement, the prior Employment Agreement shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment, and that there are no other Agreements between them oral, written, or implied. 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 February 25, 2025 ("Effective Date) and shall terminate on February 28, 2030, subject to the City's right to terminate Employee's employment at any time as provided for in this Agreement, and Section 504 of the City Charter, The City's election not to extend this Agreement shall not entitle Employee to Severance pursuant to Section 8 of this Agreement. 1 SECTION 2: No Break in Service Employee has been continuously employed by the City since July 1, 2002. Entry into this Agreement shall not constitute a break in service. SECTION 3: Duties and Authority Employer agrees to employ Employee as Police Chief, 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, specifically, but not limited to, those set forth in the "Police Chief' job description attached hereto as Exhibit A and incorporated herein by this reference. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by the City Manager, may legally assign. SECTION 4: Compensation and Performance Evaluation A. Base Salary. Employer agrees to pay Employee an annual base salary of $270,478.00 (Two Hundred, Seventy Thousand, Four Hundred, Seventy -Eight Dollars and 00/100) ("Base Salary"), subject to deductions and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements (collectively, the "Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in benefit plans or programs described in Section 5 of this Agreement. The annual Base Salary of Employee is within the approved salary schedule adopted by resolution of the City Council of the City of Newport Beach ("City Council"). B. Adiustments to Compensation / SalarV Schedule. 1. Annual - Base Salary Increase. Beginning in 2026, and each year thereafter, Employee shall receive a Base Salary increase in compensation equal to three percent (3%) of the Base Salary or, if a smaller increase in Base Salary will place Employee at the top of the salary schedule for the Police Chief position, Employee's Base Salary shall be increased to the maximum provided for the Police Chief position in the salary schedule adopted by the City Council. For example, if a two percent (2%) increase will place Employee at the top of the salary schedule for the Police Chief position, the increase provided in this subsection for that year would be two percent (2%) rather than three percent (3%). The increase shall be 1►a 9-5 effective for the pay period that includes February 25. The Annual Base Salary Increase provided for in this subsection is intended to set a minimum amount that the Base Salary will be increased each year until Employee reaches the top of the salary schedule for the Police Chief position, as amended from time to time, and nothing in this subsection shall prevent the City Manager from increasing the Base Salary more than three percent (3%) in any year, provided that any increase shall not exceed the approved salary schedule for the Police Chief position adopted by resolution of the City Council. 2. Performance - Base Salary lncrease. Employer, via the City Manager, shall conduct annual performance examinations on or about the anniversary date of the Effective Date of this Agreement, or consistent with that of other Executive Management Employees. In addition to the Annual Base Salary increase provided for in Subsection 4(B)(1), if the City Manager determines that the Police Chief's performance is satisfactory, the City Manager may increase the Police Chief's Base Salary by a percentage the City Manager deems appropriate, provided that any increase shall not exceed the approved salary schedule for the Police Chief position adopted by resolution of the City Council. 3. Newport Beach Police Management Association Salary Schedule Adjustments — Base Salary Increase. Employee shall receive a Base Salary increase in compensation equal to the salary schedule adjustment(s) (percentage increase(s)) provided to the unit members of the Newport Beach Police Management Association ("NBPMA"), as set forth in an approved Memorandum of Understanding ("MOU") or Side Letter Agreement ("SLA") between the NBPMA and the City, on the date the salary schedule adjustment, which results in an increase in compensation, goes into effect for the NBPMA. Currently, the next salary schedule adjustment for the NBPMA is scheduled for July 12, 2025, in the amount of three percent (3%), and is reflected in the City Council adopted salary schedule for the Police Chief position. The Parties expressly agree that the salary schedule for the Police Chief position, which is reflected in the Council approved salary schedule, shall be adjusted by the same percentage increase(s) as provided to unit members of the NBPMA, as set forth in an approved MOU or SLA. 4. Market Survey - Salary Schedule Adjustment. By February 26, 2026, Employer shall conduct a compensation survey for the position of Police Chief, using those agencies approved by the City Council as comparator agencies on November 19, 2024 ("Comparator Agencies"). If the compensation survey for the Comparator Agencies indicates the base salary for the position of Police Chief is below average, the City Manager shall propose an increase to the Newport Beach salary schedule for the position of Police Chief that reflects the base salary schedule 3 range of the Comparator Agencies within two (2) months of the completion of the salary survey. For example, if Newport Beach's base salary schedule for the Police Chief position is $100,000 to $150,000, and the low average salary range for the Comparator Agencies is $110,000 and the high average salary range for the Comparator Agencies is $160,000, the City Manager shall present to the City Council for its consideration a resolution adjusting the salary schedule for the Police Chiefs position from $100,000 - $150,000 to $110,000 - $160,000. C. Scholastic Achievement Pay. As provided in the City's Key and Management Compensation Plan, as amended, ("Compensation Plan") and the NBPMA MOU, safety employees are paid scholastic achievement pay for various levels of scholastic achievement. Likewise, Employee shall be entitled to additional Scholastic Achievement Pay, contingent upon scholastic achievement, to the extent provided herein. Employee may apply for scholastic achievement pay when eligible and scholastic achievement pay shall be included in Employee's paycheck for the pay period immediately after approval by the City Manager. It is Employee's responsibility to apply for scholastic achievement pay. Employee is not entitled to receive scholastic achievement pay prior to the date the application is approved, even if Employee was eligible prior to City Manager approval. Additional compensation for Scholastic Achievement Pay for obtaining a Bachelor of Arts ("BA"), Bachelor of Science (°BS"), Master of Arts (" IVI ), Master of Science or Juris Doctor ("JD") degree is as follows: Degree Scholastic Pay Percentage BAIBS 7% MA/MS/JD 8.5% Employer and Employee agree that the pays are not cumulative. if there are future changes to the scholastic pay percentages offered to members of the NBPMA for obtaining BA, BS, MA, MS, or JD degree, as set forth in a council -approved MOU or SLA, the same percentage changes will be made for Employee. The Parties agree that to the extent permitted by law, the scholastic achievement pay in this section is special compensation and shall be reported to CaIPERS as such, pursuant to Title 2 California Code of Regulations, Section 571 (a)(2) and 571.1 (b)(2), Educational Incentive Pay. The Parties agree that scholastic achievement pay does not impact or limit the amount that may be paid as Base Salary. D. Uniform Allowance. As permissible by law and subject to the provisions and limitations under the Public Employees' Retirement Law (California Government Code § 20000 et seq.), as amended or superseded from time to time, the City shall report, biweekly, the E 9-7 value of provided uniforms at $1,350 (One Thousand, Three Hundred Fifty Dollars 00/100) per year, in accordance with California Public Employees' Retirement System ("CaIPERS") requirements. The Parties agree the reported value of uniforms is intended to reflect clothing such as pants, shirts, jackets, and related attire and excludes health and safety related equipment. If CaIPERS does not agree that the uniform allowance qualifies as special compensation, the City shall have no liability in this regard or duty to represent Employee in proceedings related to said determination. This Agreement shall be deemed amended whenever the City approves a new uniform allowance via a council -approved MOU or SLA with the NBPMA. The Parties agree that the uniform allowance does not impact or limit the amount that may be paid as Base Salary. E. Other City Employees/Groups. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 5: Employee Benefits A. Leave Benefit Balances Carried Over. All of Employee's accrued Flex Leave and other benefit balances shall carry over as set forth herein. Employee's Flex Leave shall continue to accrue under the terms of applicable City policies and the provisions in Section 5(B) immediately below. B. Flex Leave. Employee shalt/ accumulate Flex Leave as provided in the Compensation Plan, Executive Management category, Years of Continuous Service, 15 and over, at the rate of 9.69 hours per pay period. The amount of Employee's accrued Flex Leave may not exceed (i.e., no longer accrue) a total of 755.82 (Seven Hundred Fifty -Five and Eighty -Two Hundredths) hours. The right to sell back accumulated Flex Leave shall be consistent with the "Leave Sellback" provision of the Compensation Plan. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the Compensation Plan regarding: (i) the amount of Flex Leave accrued per pay period; (ii) the maximum allowable balance of Flex Hours that can be accrued; (iii) provisions related to the use of Flex Leave to provide dependent care; or (iv) Flex Leave Sellback. C. Administrative Leave. Employee may be granted administrative leave hours, if any, in the sole discretion of the City Manager, up to a maximum of eighty (80) hours per calendar year. Administrative Leave hours will be credited to Employee the first pay period in January of each calendar year. Consistent with the City's Key and 5 .; Management Compensation Plan, Administrative Leave does not accrue and cannot be carried over from year to year. D. Holidays. Employee will take time off for holidays in the same manner as Executive Management Employees ("Regular Holidays"). The City will not report Regular Holidays as special compensation. E. Other Leaves. Employee shall be entitled to the same Bereavement Leave, Jury Duty Leave, Workers' Compensation Leave and Medical Treatment for Industrial Injuries Leave, as received by Executive Management Employees as set forth in the Compensation Plan and/or Employee Policy Manual ("EPM"). This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the Compensation Plan or EPM regarding these leaves. F, Additional Benefits. Unless otherwise provided in this Agreement, Employee shall receive the same benefits as are available to Executive Management Employees under the Compensation Plan and/or EPM, including cafeteria benefits, LIUNA Supplemental Pension, IRS Section 125 Flexible Spending Accounts, short-term and long-term disability plans, life insurance plans, and deferred compensation plans. This Agreement shall be deemed amended whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan and/or EPM. G. 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 dollars ($1,000). H. City Provided Vehicle. Employee's duties require him to be available to respond to the demands of City business at all times and outside of regular business hours, including weekends. Therefore, City shall provide Employee with a vehicle that may be used for City -related purposes. The make and model of the vehicle shall remain within the City's sole discretion. City shall pay for reasonable maintenance of the vehicle and gasoline. It is contemplated by the parties that Employee will use the vehicle principally for City -related business, however, to the extent that Employee uses the vehicle for any incidental personal business, Employee shall pay for gasoline for all such personal use. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any of the Executive Management Employees. J. Key and Management Group,Executive Management Category. Except as expressly provided herein, Employee shall be treated as a member of the City's Key and Management Group, Executive Management category. As such, the benefits, terms X and conditions of the Compensation Plan shall apply to Employee as provided more specifically above, provided however, in the event of a conflict between the provisions of this Agreement and the Compensation Plan, this Agreement shall prevail. K. Retirement - CaIPERS. Employee shall be eligible for the "3% at 50" retirement formula (i.e., the same retirement formula set forth in Section 4 (D) (1) of the "Retirement Benefits" and Tier 1 ("Legacy") portion of the current NBPMA MOU). Employee shall contribute 13.1 % of compensation earnable towards Employee's retirement benefits, which is designated as follows: 9% of Employee/Member's total compensation earnable salary as the Employee/Member Contribution; and 4.1 % as cost sharing of the Employer Contribution Rate in accordance with Government Code Section 20516(f). Employee's retirement percentage contributions shall be tied to the retirement contributions required by Tier I safety employees covered by the NBPMA MOU. As such, Employee's retirement percentage contribution will increase to 14.6% effective the pay period that includes January 1, 2026. If there are changes to the retirement contributions required by Tier I safety employees covered by the NBPMA MOU, as set forth in a council --approved MOU of SLA, during the term of this Agreement, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it is applied to the Tier I safety NBPMA employees covered under the NBPMA MOU and for the same duration. L. LIUNA Supplemental Pension. Employee is a member of the LIUNA Supplemental Pension Fund ("Plan"). Effective the pay period which included January 1, 2019, the Plan is required to be funded exclusively by contributions from the members. The City will not make any contributions to the Plan. In addition, as there are increases (which typically occur annually) to the costs (whether identified as employer or employee contributions) to fund the Plan, they will be made by Employee (i.e., the participants in the Plan). The City is not responsible for, nor does it make any representation regarding, the payment of benefits to Employee. This Agreement shall be deemed ►A 9-10 amended whenever the City Council adopts a resolution changing the Compensation Plan or EPM regarding the Plan. Employee cannot receive the contributed amounts directly instead of having them paid to the Plan. Participation in the Plan will continue to be mandatory for Employee. Employees who leave City employment prior to vesting in the LIUNA pension plan will have no right to the return of amounts contributed, or other recourse against the City concerning LIUNA. SECTION 6: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job - related nature that are reasonably necessary to Employee's service to Employer. Employer agrees either to pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures, or such other procedure as may be designated by the City 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. Consistent with Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Manager, Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and participation in meetings, at institutes, training programs, conferences, conventions and similar gatherings that support leadership development and the advancement of Employer and Employee's mutually agreed upon goals, and which are related to Employee's duties or Employer's operations and held in the continental United States. For purposes of this paragraph, reasonable expenses are limited to the reasonable and actual cost of registration, airfare (where applicable), ground transportation and meals. Reasonable expenses will also include the reasonable and actual cost of lodging for meetings outside of Orange County. C. The expenses to be budgeted and paid in this Section 6, Subsection 6 (A) and (B) immediately above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Manager. Employer will separately budget and pay for 9-11 membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 7: At -Will Employment Relationship A. Consistent with Section 504 of the City Charter and NBMC Section 2.12.020, Employee is appointed by, and serves at the pleasure of, the City Manager. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without cause. Employer shall pay Employee for all services through the effective date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 8 "Severance and Benefit Payoff at Termination, and General Release Agreement" below. Nothing herein shall be construed to limit the rights and obligations of City and Employee as set forth in the Public Safety Officers Procedural Bill of Rights Act, codified at Government Code Section 3300, et seq. ("POBRA"). B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer, subject only to Employee providing a minimum of sixty (60) 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, as well as any potential "Severance" pay per Section 8 below. SECTION 8: Severance and Benefit Payoff at Termination, and General Release Agreement A. Termination Without Cause. By providing Employee at least fourteen (14) calendar days' prior written notice thereof, the City may terminate Employee without cause based upon management reasons such as implementing the City's goals or policies, including but not limited to: (i) change of administration, or (ii) incompatibility of management styles. In the event Employee is terminated without cause, Employee expressly agrees that he shall not be entitled to any Severance pay as the result of the termination of this Agreement except as provided in this Section 8(A). If Employer terminates Employee without cause, and if Employee signs, delivers to the City, and does not revoke, the Agreement of Separation, Severance and General Release, in substantially the form attached hereto as Exhibit B, subject to modification/approval by the City Attorney, then Employer shall pay Employee a lump sum benefit equal to six (6) months of his then applicable Base Salary, and six (6) months of medical coverage as provided under the Compensation Plan and/or EPM as Long as Employee 0 9-12 is already enrolled and receiving medical coverage through the City medical benefits plan at the time of termination. In accordance with Government Code Section 53260 (a), in no event shall Employee receive a cash settlement that is greater than the monthly Base Salary of Employee multiplied by the number of months left on the unexpired term of the Agreement. The lump sum payment described in this Section 8(A) shall be referred to herein as "Severance". To comply with the requirements of California Government Code section 3304 (c), termination by the City Manager for a reason other than cause shall be conducted in accordance with the following procedures: 1. The City reserves the right to place Employee on paid administrative leave for all or a portion of the fourteen (14) calendar day written notice period provided under this Section 8(A). 2. Employee may request to appear before the City Council prior to the effective date of the termination to challenge the reasons for the termination or to raise mitigating circumstances regarding the termination, however, in such event shall waive any right to Severance pay under this Section 8(A). B. Termination With Cause. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the City Manager, Employee shall not be entitled to any Severance. As used in this Agreement, cause shall mean any of the following: 1. Conviction of a felony; 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code Section 53243.4-1 4. Willful abandonment of duties; 5. A pattern of repeated, willful and intentional failure to carry out materially significant and legally constituted direction of the City Manager or the policy decisions of the City Council made by the City Council as a body; and/or 6. Any other intentional or grossly negligent action or inaction by Employee that materially and substantially: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to Employee or public safety; (c) violates 10 9-13 properly established rules or procedures of Employer causing a material and substantial adverse impact on Employer; or (d) has a material and substantial adverse effect on Employer's interests as clearly defined and delineated by properly established City Council action taken by the Council as a body, policy, regulations, ordinances, or Charter provisions of Employer. Within five (5) calendar days of receipt of written notice of termination for cause under this Section 8(B), Employee may submit a request in writing to the City Manager for an administrative appeal. Such appeal shall not prohibit or otherwise delay the termination of Employee prior to the administrative appeal. Failure to timely file such a request shall be deemed a waiver of the right to do so. Upon Employee's written appeal request, the City Manager shall appoint an independent hearing officer to conduct an administrative hearing and issue an advisory decision, which shall then be reviewed and considered and either adopted, modified or rejected by City Council. Both the Employee and the City and their respective representatives, if any, shall make reasonable efforts to set an administrative appeal hearing date within thirty (30) calendar days from the City Manager's receipt of the written appeal request. At the administrative appeal hearing, the independent hearing officer shall be presented with both the information and documents on which the City based its decision to terminate as well as any information and documents on which the City based its decision to terminate for cause as well as any information and documentation that the Employee chooses to submit to challenge the City's information and documents to raise mitigating circumstances for consideration by the independent hearing officer. Within thirty (30) calendar days of completing the hearing, the independent hearing officer shall issue an advisory decision in writing to the City Council determining whether Employee was properly terminated and whether there was sufficient "cause" to justify not paying Severance under the terms of this Agreement, unless Severance was already tendered. Following City Council's review and consideration of the advisory decision, Employee shall be notified in writing as to whether the advisory decision will be upheld, modified or rescinded. C. Resignation/Non-Renewal. If Employee resigns or otherwise terminates this Agreement (thereby terminating Employee's Employment) or if this Agreement is not renewed as provided in Section 1, Employee shall not be entitled to any Severance. D. Flex and Administrative Leave. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave and any unused Administrative Leave. 11 9-14 SECTION 9: Employee's Obligations and Hours of Work A. Employee shall devote his full energies, interests, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may include time outside normal office hours (including 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 of normal office hours to business activities of Employer and the exempt, salaried nature of the employment, Employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at the Newport Beach Police Department during normal business hours, subject to Section 9(B) immediately below. B. Employee is authorized to work the 9180 schedule as defined in the City's EPM and referred to in the City's Key and Management Compensation Plan as either may be amended from time to time or superseded. However, as Police Chief, Employee shall not take a 9180 day when the press of business or the public safety needs of the community require Employee's attendance. SECTION 10: 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. All Confidential Information shall be promptly returned to the City immediately upon the effective date of any severance of employment. B. Except as otherwise required by law, in the event the City terminates Employee without cause, the City and Employee agree that no member of the City Council acting in their official capacity, the City management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint 12 9-15 press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 10 shall survive the termination of this Agreement. SECTION 11: Outside Activities Consistent with California Government Code Section 1126 et seq., Employee shall not engage in any employment, activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with, inconsistent, incompatible with or inimical to, or which materially interferes with his duties, functions and responsibilities to Employer. SECTION 12: Indemnification A. Consistent with the 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 that 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 independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. (Govt. Code sections 825, 995, et seq.) B. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 13: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and 13 9-16 conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 14: Notices A. Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 100 Civic Center Drive Newport Beach, California 92660 With a courtesy copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: David Miner At the home address then shown in Employer's file(s) B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 15: General Provisions A. Integration. This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The Parties by mutual written agreement may amend any provision of this Agreement. 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 14 9-17 policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Manager. B. Binding. This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law. This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. In the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the NBMC, the City Charter or the NBMC shall prevail over this Agreement. All other City personnel ordinances, resolutions, rules, and policies shall apply to Employee in the same manner as applied to other Executive Management Employees. F. Employee's Independent Review. Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this Agreement. 15 9-18 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER EMPLOYEE CITY OF NEWPORT BEACH, A California Municipal Corporation By: By: Grace K. Leung, City Manager David Miner Date: Date: APPROVED AS TO FORM: Office of the City Attorney By: Date: A ron C. Harp, City Attorney ATTEST: By: Date: Leilani Brown, City Clerk [End of Signatures] Attachments: Exhibit A - Police Chief Job Description 2, / / q / 2- 57 Exhibit B - Agreement of Separation, Severance and General Release 16 9-19 Exhibit A 9-20 2/4125, 3:09 PM City of Newport Beach - Class Specification Bulletin CLASS CODE City of Newport Beach POLICE CHIEF 700002B ESTABLISHED DATE March 02, 2010 Definition SALARY $88.79 - $139.83 Hourly $7,103.21 - $11,186.05 Biweekly $15,390.28 - $24,236.44 Monthly $184,683.41- $290,837.25 Annually REVISION DATE November 16, 2022 Under direction of the City Manager, the Police Chief is responsible for the administration, development, and advancement of the City's full -service Police Department; oversees and implements all programs and procedures related to crime prevention, law enforcement, and related policing services; serves as a member of the City Manager's Executive Management Team; and provides highly responsible and professional staff assistance to the City Manager and City Council. SUPERVISION RECEIVED AND EXERCISED: Receives general administrative direction from the City Manager. Exercises general supervision over the entire department and direct supervision over division managers and profession alladmin istrative support staff. CLASSIFICATION CHARACTERISTICS: The Police Chief is expected to exercise independent judgment, wisdom, and innovation in establishing and administering all Police Department operations, consistent with the City Manager's expectations and with concern for the entire City government organization. As an inspiring leader, the Police Chief must demonstrate integrity and promote ethical standards within the department, advocate collaboration with the community, and be a team member with the City organization. The Police Chief must be politically astute, but apolitical. Essential Duties The following essential functions are typical for this classification. Incumbents may not perform all the listed functions and/or may be required to perform additional or different functions from those below to address business needs and changing business practices: Advances the interests of the department and the City, plans, directs, and oversees a variety of programs designed for the maintenance of law and order and protection of life and property within the City of Newport Beach; develops comprehensive plans to satisfy needs for departmental services to ensure the highest possible quality of life for residents and visitors; Ensures the optimum and most efficient and effective use of staffing and resources, administers the overall operation of a full service police department, including hiring, personnel administration, office operations, https:it wwv.governmentjobs.com/careerslnewportbeach/classspecs/newprintl4G5D9 1/5 9-21 214125, 3:09 PM City of Newport Beach - Class Specification Bulletin budgeting, and community relations; serves as a member of the City's Executive Management Team and collaborates with other departments to resolve city-wide problems; Demonstrates a strong working knowledge of the legal system, confers with legal advisors and City officials regarding law enforcement issues; provides professional and technical advice and assistance to the City Manager and City Council on matters related to law enforcement services; represents the City as a witness in legal proceedings; Exhibits exceptional communication skills, prepares and presents staff reports and related materials for City Council or public response; resolves issues raised by City Council members, community groups, employee associations, and the public; advocates the City's position in negotiations with various regulatory agencies to satisfy requirements; Builds cohesive and collaborative departmental working relationships, plans, organizes, selects and supervises the work of departmental staff; establishes accountability throughout the department; promotes employee development through staff training and succession planning; ensures consistent application of City personnel policies and employee agreements; Demonstrates stewardship of public funds, directs the preparation and administration of the Police Department budget; participates in the forecast of revenue, expenses and additional funds needed; guides subordinate managers in developing and administering fiscally responsible budgets; carries out police functions in the most cost effective ways; Promotes a strong community policing program, establishes and maintains collaborative working relationships with property owners, community groups, business districts, and the public; represents the Police Department and the City at community and civic events; and Performs related duties as assigned. Qualifications To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below are representative of the knowledge, skill, and/or ability required. Knowledge of: Advanced principles and practices of crime prevention and law enforcement, including criminal investigation and identification, patrol, traffic control, animal control, records management, care and custody of persons and property and environmental protection; Principles and practices of organization, administration and personnel management, and leadership of a law enforcement agency; Principles and techniques of municipal budget development and administration; Applicable Federal, State and local laws, ordinances, codes and regulations; https:llwww.governmentjobs.00mlcareerslnewportbeachlclassspecslnewprintt4D509 215 9-22 2/4I25, 3:09 PM City of Newport Beach - Class Specification Bulletin Principles of supervision, training and performance evaluation; Current technological and communication equipment and software applicable to the delivery of departmental services to internal and external customers; Modern office practices, procedures, methods and equipment; and The use of a PC and applicable software. Ahoy -La Effectively direct, plan and organize the activities of a comprehensive city-wide full service police department; Critically analyze problems, identify alternative solutions, and implement recommendations in support of goals; Understand the needs of a tourism -based community and its impact on public safety; Promote collaboration and innovation; Provide a stabilizing influence during periods of change; Weigh risks and consequences and make clear decisions; Equitably interpret and apply City policies, procedures, rules and regulations; Diffuse conflict and gain cooperation through discussion and persuasion; Motivate, select, supervise, and evaluate personnel; Promote fiscal responsibility in administering a departmental budget; Develop and maintain effective partnerships with community groups; Build loyalty within the organization and advocate accessibility and responsiveness to the community; Communicate clearly and concisely, both orally and in writing; Regularly and predictably attend work; Follow directions from a supervisor; Understand and follow posted work rules and procedures; Accept constructive criticism; and Establish and maintain cooperative working relationships with those contacted in the course of work. https:llwww.governmentjobs.com/cafeers/newportbeach/classspecs/newprintf4O5O9 3/5 9-23 214/25, 3:09 PM City of Newport Beach - Class Specification Bulletin This position may be required to work overtime hours as needed. PHYSICAL REQUIREMENTS AND ENVIRONMENTAL WORKING CONDITIONS: The conditions herein are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential job functions. Environment: Reactive emergency, natural or man-made disaster, and routine peace keeping environments with travel from site to site. The employee is regularly exposed to outside weather conditions; occasionally exposed to fumes or airborne particles, toxic or caustic chemicals, extreme cold, extreme heat, risk of electrical shock, risk of radiation, and vibration; potentially hostile environments; extensive public contact. The noise level in the work environment is usually moderate but may be very loud due to sirens, firearm training, etc. Incumbents required to work various shifts, including evenings and weekends, and may be required to travel outside City boundaries to attend meetings. Physical: Primary functions require sufficient physical ability to work in a law enforcement setting and an office setting; restrain or subdue individuals; walk, stand, sit, or run for prolonged periods of time; occasionally stoop, bend, kneel, crouch, reach, and twist; occasionally climb and balance; regularly push, pull, lift, and/or carry light to moderate weights; frequently lift and/or move moderate to heavy weights; occasionally lift and/or move heavy weights; operate office equipment including the use of computer keyboard; requires a sense of touch, finger dexterity, and gripping with hands and fingers; ability to speak and hear to exchange information; ability to operate a vehicle to travel to various locations; ability to operate and use specialized law enforcement tools and equipment including guns and handcuffs. Vision: See in the normal visual range with or without correction. Hearing: Hear in the normal audio range with or without correction. Experience & Education and License/Certificate A combination of experience and education that would likely provide the required knowledge and abilities may be qualifying. A typical way to obtain the knowledge and abilities would be: Experience: Seven years of increasingly responsible managerial and supervisory law enforcement experience, including having achieved the rank of Deputy/Assistant Police Chief or equivalent. Education: Equivalent to completion of a bachelor's degree in criminal justice, law, management, public administration, business administration, or a related field from an accredited college or university. A master's degree orjuris doctorate is desirable. License or Certificate: Due to the performance of some field duties, which require the operation of a personal or City vehicle, a valid and appropriate California driver's license and an acceptable driving record are required. https:llwww.governmentjobs.com/careers/newportboach/classspecs/newprint14O5O9 415 9-24 214125, 3:09 PM City of Newport Beach - Class Specification Bulletin Possession of P.O.S.T. Management Certificate at time of appointment. Possession of P.O.S.T Executive Certificate desirable. Completion of Federal Bureau of Investigation's National Academy is desirable. Additional Requirement: Prior to employment, the prospective candidate must successfully complete a thorough background review, including being fingerprinted by Newport Beach Police Department. Disaster Service Worker: In accordance with Government Code Section 3100, City of Newport Beach employees, in the event of a disaster, are considered disaster service workers and may be asked to respond accordingly. https:Ilwww.governmentiobs.comlcareerslnewportbeachlclassspecslnewprint140509 5/5 9-25 Exhibit B 9-26 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 DAVID MINER, an individual (hereinafter referred to as "EMPLOYEE"). 2. RECITALS 2.1. EMPLOYEE was hired by THE CITY as an at -will POLICE CHIEF effective February 22, 2025, which was amended on February 25, 2025, serving at the pleasure of the City Manager of THE CITY pursuant to a written contract, as amended, 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 all employment relationships between THE CITY and EMPLOYEE by means of EMPLOYEE's voluntary separation as of , 2.3. This AGREEMENT sets forth the full and complete terms and conditions concluding EMPLOYEE's employment relationship with the CITY and any obligations related thereto, including any provided under THE CONTRACT. 2.4. In accordance with this AGREEMENT and with applicable state and federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of EMPLOYEE's post -employment rights, including but not limited to, EMPLOYEE's rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Employee Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). 3. CONSIDERATION 3.1. EMPLOYEE shall receive payment to him at the time of his voluntary separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or all other wage compensation/benefits owed to EMPLOYEE upon separation of employment, as required by law or THE CONTRACT or any other agreement with THE CITY. 9-27 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 thirty (30) business days after the EFFECTIVE DATE (as defined below) of this AGREEMENT. 3.3. In exchange for the severance payment provided for herein, EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the beginning of time up to and including (hereinafter referred to collectively as "CLAIMS"), without regard to whether such CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims based upon any alleged breach of THE CONTRACT or any other agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act, or any claim or cause of action including, but not limited to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code §§ 12, 900 et seq., the Americans With Disabilities Act, Title Vll 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. 9-28 4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual's employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et seq., Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this AGREEMENT, EMPLOYEE acknowledges that he knowingly and voluntarily, for just compensation in addition to anything of value to which EMPLOYEE was already entitled, waives and releases any rights he may have under the ADEA and/or OWBPA. EMPLOYEE further acknowledges that he has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: a) This waiver/release is written in a manner understood by EMPLOYEE; b) EMPLOYEE is aware of, and/or has been advised of, his rights under the ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently may have under the ADEA, OWBPA and/or similar age discrimination laws; c) EMPLOYEE is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this AGREEMENT and the waiver and release of any rights he may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of his own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) days; d) The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE of this AGREEMENT; e) EMPLOYEE has been advised by this writing that he should consult with an attorney rp for to executing this AGREEMENT; f) EMPLOYEE has discussed this waiver and release with, and been advised with respect thereto by, his counsel of choice, and that he does not need any additional time within which to review and consider this AGREEMENT; g) EMPLOYEE has seven (7) days following his execution of this AGREEMENT to revoke the AGREEMENT; h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby revoke my acceptance of our Agreement of Severance and General Release;" and 9-29 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 that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." EMPLOYEE hereby waives the protection of California Civil Code section 1542. 6. WAIVER OF ADDITIONAL CLAIMS EMPLOYEE hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above. 7. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each other party as follows: 7.1. Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this AGREEMENT or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of this AGREEMENT and of its legal effect. 7.2. No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other party in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT. 9-30 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 Discove : The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that EMPLOYEE fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against THE CITY or THE CITY PARTIES. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. EMPLOYEE understands and agrees that he shall be exclusively liable for the payment of all taxes for which he is responsible, if any, as a result of his receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition, EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT. 7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this AGREEMENT. EMPLOYEE shall provide THE CITY with consultation services (including deposition or trial testimony) in any litigation involving THE CITY which is reasonably related to acts or occurrences transpiring during his employment. Said services shall be provided as needed by THE CITY at a rate of $100.00 per hour. 9-31 7.8. Return of Confidential Information and Pro ert : Prior to the separation date, EMPLOYEE shall submit a written inventory of, and return to the City Clerk, all City keys, equipment, computer identification cards or codes, and other equipment or materials or confidential documents provided to or obtained by EMPLOYEE during the course of his employment with THE CITY. 7.9. No Pending Claims and/or Actions: EMPLOYEE represents that he has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or federal agency or court, that he will not do so at any time hereafter for any claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and that if any such agency or court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where ever filed, he will request such agency or cour� to withdraw from the matter forthwith. 7.10. Ownership of Claims: EMPLOYEE represents and warrants as a material term of this AGREEMENT that EMPLOYEE has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, EMPLOYEE further warrants and represents that none of the CLAIMS released by EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity. 7.11. Authority: Each party represents to the other that it has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT to which they are a party or by which they are bound by entering into this AGREEMENT. The parties represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed. 8. MISCELLANEOUS 8.1. No Admission: Nothing contained herein shall be construed as an admission by THE CITY of any liability of any kind. THE CITY denies any liability in connection with any claim and intends hereby solely to avoid potential claims and/or litigation and buy its peace. 8.2. Governing Law: This AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 8.3. Full Integration_: This AGREEMENT is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This 9-32 AGREEMENT may be amended only by a further agreement in writing, signed by the parties hereto. 8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest. 8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the parties agree that it shall not be construed against any party. 8.6. Severability: In the event that any term, covenant, condition, provision or agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement and the remainder of this AGREEMENT shall still be in full force and effect. 8.7. Titles: The titles included in this AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT. 8.8. Counterparts- This AGREEMENT may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective as to all parties. 8.9. Notice: Any and all notices given to any party under this AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: At EMPLOYEE's home address on file with THE CITY. As to THE CITY: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 9-33 IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and executed on its behalf by its City Manager 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: City Clerk APPROVED AS TO FORM: On City Attorney [EMPLOYEE's LAW FIRM] go [Counsel] EMPLOYEE DAVID MINER THE CITY OF NEWPORT BEACH City Manager 9-34