HomeMy WebLinkAboutC-8568-4 - Third Amended and Restated Employement Agreement - City ManagerAMENDMENT B TO CITY OF NEWPORT BEACH
THIRD AMENDED AND RESTATED EMPLOYMENT
AGREEMENT — CITY MANAGER
WHEREAS, on January 25, 2022, the City of Newport Beach, a California
municipal corporation and Charter City ("Employer" or "City") and GRACE K.
LEUNG ("Employee"), an individual (sometimes collectively referred to herein as
"the Parties") entered into a Third Amended and Restated Employment Agreement
("Agreement") for the period of January 25, 2022 through December 30, 2026;
WHEREAS, the City Council wishes to adjust Employee's base pay by 5%
for the 2023-2024 fiscal year; and
WHEREAS, this amendment will not be binding until it is approved by the
City Council.
NOW, THEREFORE, it is mutually agreed between the Parties as follows:
1. Section 3. Compensation and Performance Evaluation, Section A, is
amended to read as follows:
A. Employer agrees to pay Employee an annual base salary of Three Hundred
Twenty -Five Thousand, Seven Hundred and Thirty -Three Dollars
($325,733) ("Base Salary"), effective July 1, 2023.
2. Except as expressly modified herein, all other terms and provisions set
forth in the Agreement shall remain unchanged and shall be in full force and effect.
Signatures on the next page
Amendment B To Third Amended And Restated Employment
Agreement - Leung Page 1 of 2
Date:
M.
EMPLOYER
CITY OF NE
A Mum
ATTEST:
T BEACH
, Outside
By: 0
Leilani C • _
EMPLOYEE,
An Individual
By:
Qi e K. Leung
Date: $' 2"J
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Date: o
Date: Kqa ' v V3
Amendment B To Third Amended And Restated Employment
Agreement - Leung Page 2 of 2
AMENDMENT A TO CITY OF NEWPORT BEACH
THIRD AMENDED AND RESTATED EMPLOYMENT
AGREEMENT — CITY MANAGER
WHEREAS, on January 25, 2022, the City of Newport Beach, a California
municipal corporation and Charter City ("Employer" or "City") and GRACE K.
LEUNG ("Employee"), an individual (sometimes collectively referred to herein as
"the Parties") entered into a Third Amended and Restated Employment Agreement
("Agreement") for the period of January 25, 2022 through December 30, 2026;
WHEREAS, given increases in the cost of medical insurance and to aid in
the recruitment and retention of valuable employees, the City Council wishes to
amend the Agreement; and
WHEREAS, this amendment will not be binding until it is approved by the
City Council.
NOW, THEREFORE, it is mutually agreed between the Parties as follows:
1. Section 4.K, Employee Benefits, Retirement-Ca1PERS of the
Agreement is amended to read as follows:
K. Retirement-Ca1PERS
Employee is a California Public Employees' Retirement System ("Ca1PERS")
classic member. Employee is enrolled in the City's Tier II "Classic" CalPERS
retirement program. Employee contributes thirteen percent (13%) of compensation
earnable towards Employee's retirement benefit which is designated as follows: 7%
of Employee/Member's total PERSable salary as the Employee/Member
Contribution and 6% as cost sharing of the Employer Contribution Rate in
accordance with Government Code Section 20516(f).
Employee's retirement contributions shall be tied to the retirement
contributions required by Tier II non -safety employees covered by the Key &
Management Compensation Plan ("Plan"). If there are changes to the retirement
contributions required by non -safety employees covered by the Plan, as set forth in
a council -approved Plan, 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 II non -safety Key & Management employees
covered under the Plan and for the same duration.
Employee retirement contributions that are in addition to the normal Ca1PERS
Member Contribution shall be calculated on Base Salary, special pays, and other
pays normally reported as "PERSable" compensation (known either as
compensation earnable or pensionable compensation) and will be made on a pre-tax
basis through payroll deduction, to the extent allowable by law.
2. Except as expressly modified herein, all other terms and provisions set
forth in the Agreement shall remain unchanged and shall be in full force and effect.
Signatures on the next page
Leung Employment Contract Page 2 of 3
EMPLOYER
CITV (1P VP WP(1R T RP O ('I4
Ulm
Date:
APPROVED AS TO FORM:
By: �-' C.
Aar n C. Harp, City Attorney
ATTEST:
EMPLOYEE,
An Individual
By:
Gr . Leung
Date: I ( 17,1
Date: ' 0 l Z 7 /2-)
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Leilani Brow ity Cler vc/POR
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Leung Employment Contract Page 3 of 3
CITY OF NEWPORT BEACH
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
CITY MANAGER
This THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of January 25, 2022 and is entered into by
and between the CITY OF NEWPORT BEACH, a California municipal
corporation and Charter City ("Employer" or "City") and GRACE K. 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 the City.
B. Employee has been continuously employed by City as City Manager since
September 4, 2018. Employee is currently employed under a Second
Amended and Restated Employment Agreement approved January 26, 2021
("Employment Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede
all prior Employment Agreements, and that upon execution of this Agreement,
any prior Employment Agreements 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
A. This Agreement shall become effective January 25, 2022 ("Effective Date")
and shall terminate on December 30, 2026, subject to the City's right to
terminate Employee's employment at any time as provided for in this
Agreement, Section 500 of the City Charter, and Newport Beach Municipal
Code ("NBMC") Section 2.08.050.
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B. City's election not to extend this Agreement shall not entitle Employee to
Severance pursuant to Section 7 of this Agreement.
SECTION 2: Duties and Authority
A. Employer agrees to continue 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. 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 an annual base salary of Three Hundred
One Thousand, One Hundred and Eighty -Seven Dollars ($301,187) ("Base
Salary"), effective on the first day of the pay period following approval of the
Agreement.
B. Effective the first day of the pay period that includes January 1, 2023, and
each year thereafter, the Base Salary shall be adjusted in accordance with
the percentage cost of living adjustment, if any, approved by the City Council
for Key and Management Executive Management Employees, as set forth in
the Compensation Plan.
In addition, effective January 1, 2023, and each year thereafter, Employee
shall receive a performance bonus in the sum of two and one-half percent
(2.5%) of her adjusted Base Salary then in effect, unless she receives an
unsatisfactory performance review, as determined in the sole discretion of the
City Council. The Parties agree that this payment is non -pensionable and will
not be reported to CalPERS.
C. The Base Salary and compensation payable to Employee shall be subject to
deductions and withholdings of any and all sums required for federal or state
income tax, pension contributions, and all other taxes, deductions or
withholdings required by then current state, federal or local law, prorated and
paid on Employer's normal paydays for the City Manager, City Attorney, City
Clerk and any Department Directors not covered by collective bargaining
agreements ("Executive Management Employees"). Employer shall also
deduct sums Employee is obligated to pay because of participation in plans or
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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 and the City Council shall adjust the salary range, as needed, to
ensure that the Base Salary remains within the approved salary range.
D. Employer, by the City Council, and Employee may set mutually agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
may elect to conduct an evaluation of Employee's performance at any time or
times during the period in which this Agreement remains in effect.
E. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except
as expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in
employment service between the prior Employment Agreement and this
Agreement. All of Employee's accrued leave and other benefit balances shall
carry over as agreed, and Employee leave and benefit balances shall
continue to accrue under the terms of applicable City policies and this
Agreement.
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the
Compensation Plan, Executive Management category, at the rate designated
for Employee's years of service in the 15 and over" category. Employee's
maximum accrual for Flex Leave is limited to four hundred (400) hours. No
Flex Leave shall further accrue beyond said maximum. The right to sell back
accumulated Flex Leave shall be the same as other Key and Management
Employees and shall comply with the Leave Sellback provisions set forth in
the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to eighty (80) hours of paid
Administrative Leave and shall be credited with said leave the first pay period
in January of each calendar year. Administrative Leave will not rollover 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 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.
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D. 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 Employee Policy Manual
("EPM"), including, but not limited to, 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.
E. Annual Physical Exam. Employee may undergo an annual physical
examination and City shall reimburse Employee for the actual cost of the
examination up to a maximum of One Thousand, Two Hundred and Fifty
Dollars ($1,250).
F. Automobile Allowance. Employee's duties require Employee to be available
and to respond to demands of City business at all times and outside of regular
business hours, including weekends. Employer shall, therefore, pay to
Employee an Automobile Allowance of Five Hundred Dollars ($500) per
month to respond to these demands of City business.
G. Phone Allowance. Employee shall be entitled to the same phone allowance
as provided to any Executive Management Employee.
H. 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).
I. Deferred Compensation. Upon the Effective Date of this Agreement,
Employer contributions to Employee's City -sponsored deferred compensation
account (457 Plan) shall cease.
Upon the Effective Date of this Agreement, or as soon thereafter as is
reasonably practicable, Employee shall have a 401(a) defined contribution
plan account set up by the City which is subject to the rules of Internal
Revenue Code Section 415(b). The City shall make bi-weekly contributions
to Employee's 401(a) defined contribution plan account, on a pre-tax basis,
up to the amount of Twenty -Nine Thousand and Five Hundred Dollars
($29,500) for calendar year 2022 and increase the annual contribution
amount by Five Thousand Dollars ($5,000) each and every calendar year
thereafter. Employee is immediately 100% vested in all Employer
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contributions made to her 401(a) defined contribution plan account.
Employee shall not be entitled to the 401(a) contributions set forth in the
Compensation Plan.
Under federal law, there is an annual maximum contribution which may be
made to an employee's 401(a) defined contribution plan account. If
Employee's account contributions reach the annual maximum, the City will
stop making contributions for the remainder of the calendar year and will not
owe Employee any additional compensation related to this Section.
City contributions to the 401(a) Plan cease immediately upon Employee's
separation from employment with the City.
J. Amendment of Benefits. Except as expressly provided under Section 4 of this
Agreement, Employee's benefits are not tied to the compensation of any other
City employee or group of City employees.
K. Retirement - CalPERS. Employee is a California Public Employees'
Retirement System ("CaIPERS") classic member. Employee is enrolled in the
City's Tier 2 "Classic" CaIPERS retirement program. Employee contributes
thirteen percent (13%) of compensation earnable towards Employee's
retirement benefit which is designated as follows: 7% of Employee/Member's
total PERSable salary as the Employee/Member Contribution and 6% as cost
sharing of the Employer Contribution Rate 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%, 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%. 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
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Employer. Employer agrees to either pay such expenses in advance or to
reimburse the expenses, so long as the expenses are incurred and submitted
according to Employer's normal expense reimbursement procedures, or such
other procedure as may be designated by the City Council. To be eligible for
reimbursement, all expenses must be supported by documentation meeting
Employer's normal requirements and must be submitted within time limits
established by Employer.
B. 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), 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 reimburse Employee 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 this Section 5, Paragraphs A, B,
and C above, are exclusive of reasonable expenses related to events,
participation in organizations, or attendance at events or meetings on behalf
of the City as required by the City Council. Employer will separately budget
and pay for membership and participation in community, civic or other
organizations or events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article 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
Al
and Employee shall have no right to any additional compensation or payment,
except as provided in Section 7, Severance and Benefit Payoff at Termination
and General Release Agreement, below.
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 a minimum of 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 General
Release Agreement
A. Termination Without Cause. Notwithstanding any other provision of this
Employment Agreement, and as required by Government Code Sections
3511.2 and 53260, 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 Agreement in substantially the same form attached hereto as Exhibit A
as approved by the City Attorney to ensure all potential claims are released,
then Employer shall pay Employee beginning on the effective date of
termination a cash settlement equal to Employee's monthly Base Salary, as
adjusted, multiplied by the number of months left on the unexpired term of the
Agreement, with the following exception, if the unexpired term of the
Agreement is greater than 18 months, the maximum cash settlement shall be
an amount equal to Employee's monthly Base Salary, as adjusted, multiplied
by 18. (See, Government Code Section 53260(a).) Additionally, Employer
shall provide Employee beginning on the effective date of termination six (6)
months of medical coverage as provided under the Compensation Plan, as
long as Employee is already enrolled in and receiving medical coverage
through the City medical benefits plan at the time of termination.
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
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of the City Council, Employee shall not be entitled to any additional
compensation or payment, including Severance, as provided for in Section 7
(A). If the City Council intends to terminate with Cause, based on a reason or
reasons set forth in subparts 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) calendar
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 thefollowing:
1. Conviction of afelony;
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.
uties;
5. Repeated failure to carry out a directive or directives of the City Council
made by the City Council as a body; and
6. Any grossly negligent action or inaction by Employee that materially and
adversely: (a) impedes or disrupts the operations of Employer or its
organizational units; (b) is detrimental to employees or public safety or(c)
violates properly established rules or procedures of Employer.
C. Municipal Elections. 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. (City Charter Section 506)
D. Resignation. 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. Accrued Leave. Upon termination (regardless of reason), Employee shall be
compensated for all accrued but unused Flex Leave and unused Administrative
Leave.
SECTION 8: Employee's Obligations and Hours of Work
A. Employee shall devote Employee's full energies, interests, 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.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of Employee's employment
contemplated herein, Employee will be given or will have access to privileged,
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. The obligations of Employer and Employee under this Section 9 shall survive
the termination of this Agreement.
SECTION 10: Outside Activities
A. Employee shall not engage in any employment, activity, consulting service or
enterprise for compensation, or otherwise, which is, actually or potentially,
inconsistent, incompatible, in conflict, inimical to or which materially interferes
with Employee's duties and responsibilities to Employer. (Government Code
Sections 1125 through 1129)
E
SECTION 11: Indemnification
A. 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.
(Government 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 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
A. 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
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
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(2) EMPLOYEE: Grace K.Leung
at the home address then shown in Employer's files
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 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 during the life of the Agreement. Such
amendments shall be incorporated and made a part of this Agreement. The
foregoing notwithstanding, Employee acknowledges that, except as
expressly provided in this Agreement, 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.
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.
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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 oneself of legal advice with respect to the
terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates reflected below each signature.
[Signatures on next page]
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EMPLOYER
CITY OF NEWPORT BEACH,
A Municipal Corporation
Kevin MuldooR.,O a'vor
Date:
APPROVED AS TO FORM:
By: C.ff.-,
Y
Aaron C. Harp, City Attorney
ATTEST:
EMPLOYEE,
An Individual
By:
G ce K. Leung
Date: / —,26- gza
Date:
O-
By: 0 �-
Leilani Brown, City Clerk U�
cyt�FoaN�P
Date:
[End of Signatures]
Attachment: Exhibit A - General Release Agreement
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Exhibit A
This General Release Agreement ("Agreement") is entered into by and between
GRACE K. LEUNG ("Employee") and CITY OF NEWPORT BEACH ("Employer"),
in light of the following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all disputes
they may have with each other.
E. Employee is hereby informed that Employee has twenty-one (21) days from
receiptof this Agreement to consider it. Employer hereby advises Employee
to consult with Employee's legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), Employee may revoke the
Agreement. This Agreement shall not become effective or enforceable until
the day the Revocation Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued
benefit balances and reimbursed expenses, due and payable to Employee
through the date of employment termination. Employee also acknowledges
that Employer has made this Salary Payment without regard to whether
Employee signs this Agreement. The Salary Payment does not constitute
consideration for this Agreement. Employee acknowledges that the
Severance referenced in paragraph 2 of this Agreement is in excess of all
amounts that are due and owing to Employee as a result of Employee's
employment by Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to Employee, including salary, accrued
benefit balances and reimbursed expenses ("Salary Payment") from Employer.
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2. Severance. Within ten (10) days following Employee's signing, delivering to
the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the Third Amended and Restated Employment
Agreement effective January 25, 2022, less applicable deductions, and shall provide
the months of medical benefits as provided in that same Section 7 (hereinafter
"Severance"). Employee acknowledges that the Severance is in excess of all
amounts due and owing Employee as a result of Employee's employment by
Employer.
3. General Release. In consideration of the Severance to be paid and provided
to Employee, and other good and valuable consideration, Employee hereby releases
and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising
out of Employee's employment with Employer which Employee now has, or ever
had, including but not limited to any rights, claims, causes of action or damages
arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation
Act of 1973, the Employee Retirement Income Security Act, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Older Workers
Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic
Partners Act of 2003, the California Labor Code, the Private Attorneys General Act
of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh
Civil Rights Act, the California Fair Employment and Housing Act, any other federal,
state, or local employment practice legislation, or any federal or state common law,
including wrongful discharge, breach of express or implied contract, or breach of
public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and
acknowledges the significance and consequences of this specific waiver of
Section 1542. Section 1542 of the Civil Code of California states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS 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."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past
and present City Council Members, employees, representatives and agents,
15
Employee expressly acknowledges that this General Release is intended to
include in its effect, without limitation, all claims which Employee does not know
or suspect to exist in Employee's favor.
Employee further acknowledges that Employee has read this General Release
and that Employee understands that this is a general release, and that Employee
intends to be legally bound by the same.
4. Fees. Employee and Employer agree that in the event of litigation relating
to this General Release Agreement, the prevailing party shall not be entitled to
recover its reasonable attorneys' fees.
[Signatures on Next Page]
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CITY OF NEWPORT BEACH
Dated , 20_ By:
Newport Beach Mayor
Dated , 20_ By:
Grace K. Leung
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Newport Beach City Attorney
Date:
ATTEST:
Newport Beach City Clerk
Date:
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