HomeMy WebLinkAboutC-7034-5 - Seventh Amended and Restated Employment AgreementAMENDMENT B TO CITY OF NEWPORT BEACH
SEVENTH AMENDED AND RESTATED EMPLOYMENT
AGREEMENT — CITY ATTORNEY
WHEREAS, on March 22, 2022, the City of Newport Beach, a California
municipal corporation and Charter City ("Employer" or "City") and AARON C.
HARP ("Employee"), an individual (sometimes collectively referred to herein as
"the Parties") entered into a Seventh Amended and Restated Employment
Agreement ("Agreement") for the period of March 22, 2022 through December 30,
2028;' �.
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:
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 Two Hundred
Ninety -Two Thousand, Five Hundred and Twenty -Five Dollars
($292,525) ("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
IN
EMPLOYER
CITY OF NEWPORT BEACH
A Munici
Blom, Mayor
Date: 2 3
APPROVED AS TO FORM:
By:
ATTEST:
By: ,
Lei lani]To;w ' _Clerk
EMPLOYEE,
An Individual
wpq" v��--
aron C. Harp
Date: 2
Date: O ��
Date: `g- �3 '142A3
Amendment B To Seventh Amended And Restated Employment
Agreement - Harp
Page 2 of 2
AMENDMENT A TO CITY OF NEWPORT BEACH
SEVENTH AMENDED AND RESTATED EMPLOYMENT
AGREEMENT — CITY ATTORNEY
WHEREAS, on March 22, 2022, the City of Newport Beach, a California
municipal corporation and Charter City ("Employer" or "City") and AARON C.
HARP ("Employee"), an individual (sometimes collectively referred to herein as
"the Parties") entered into a Seventh Amended and Restated Employment
Agreement ("Agreement") for the period of March 22, 2022 through December 30,
2028;
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.J, Employee Benefits, Retirement- Ca1PERS of the
Agreement is amended to read as follows:
J. Retirement-CaIPERS
Employee is a California Public Employees' Retirement System ("CaIPERS")
classic member. Employee is enrolled in the City's Tier I "Classic" CaIPERS
retirement program. Employee contributes thirteen percent (13%) of compensation
earnable towards Employee's retirement benefit which is designated as follows:
Eight percent (8%) member contribution, 2.42% of compensation earnable as cost
sharing per Government Code section 20516(a) and 2.58% of compensation
earnable as cost sharing per Government Code section 20516(f).
Employee's retirement contributions shall be tied to the retirement
contributions required by Tier I non -safety employees covered by the Key &
Management Compensation Plan ("Plan"). If there are changes to the retirement
contributions required by Tier I 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 I non -safety Key & Management
employees covered under the Plan and for the same duration.
Employee retirement contributions that are in addition to the normal CalPERS
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
Harp Employment Contract Page 2 of 3
EMPLOYER
CITY OF NEWPORT BEACH
;in
nicipal Corporation
By:
Muldoon, r
Date:
By:
APPROVED AS TO FORM:
Charles Sakai, Attorney
ATTEST:
By:
Leilani Brow , ity Cl
EMPLOYEE,
An Individual
By. lllrV�C'
r�1
'Aron C. Harp
Date: .1113 12'-22
Date: / `'' ��� d �'�. 2 CJ 2- - —
Date: _ �Ojz
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Harp Employment Contract Page 3 of 3
CITY OF NEWPORT BEACH
SEVENTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
CITY ATTORNEY
This SEVENTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of March 22, 2022 ("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 AARON C. HARP
("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 Attorney since
September 6, 2011. Employee is currently employed under a Sixth 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.
Harp Employment Agreement Page 1 of 17
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
SECTION 1: Term
A. This Agreement shall become effective March 22, 2022 and shall
terminate on December 30, 2028, subject to the City's right to terminate
Employee's employment at any time as provided for in this Agreement,
and Section 600 of the City Charter.
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 Attorney, to
exercise the powers and authority and to perform the functions and duties
specified in the Newport Beach City Charter, the Newport Beach
MunicipalCode ("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 performsuch 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 Two
Hundred, Seventy Thousand, Four Hundred Twenty -Eight Dollars
($270,428) ("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 after 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 Key and Management Compensation Plan ("Compensation Plan").
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
Harp Employment Agreement Page 2 of 17
for the City Manager, City Attorney, City Clerk and any Department
Directors not covered by collective bargaining agreements ("Executive
Management Employees"). Employer shall also deduct sums
Employee is obligated to pay because of participation in plans or
programs described in Section 4 of this Agreement. The annual Base
Salary of Employee is within the approved salary range adopted by
resolution of the City Council 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
uponobjectives 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
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
Harp Employment Agreement Page 3 of 17
calendar year or no additional entitlement above eighty (80) hours shall
ariseor 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.
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 disabilityplans, 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 Dollars ($1,000).
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. Deferred Compensation. Upon the Effective Date of this Agreement, Employer
contributions to Employee's City -sponsored deferred compensation account (457
Plan) shall cease.
Employee has 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, in the total amount of Fourteen
Thousand and Five Hundred Dollars ($14,500) for calendar year 2022 and
increase the annual contribution amount by Two Thousand Five Hundred
Dollars ($2,500) each and every calendar year thereafter. Employee is
immediately 100% vested in all Employer contributions made to his 401(a)
Harp Employment Agreement Page 4 of 17
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.
I. 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.
J. Retirement-CaIPERS. Employee contributes thirteen percent (13%) of
compensation earnable towards Employee's retirement benefit, which is
designated as follows: 8% Employee/Member's total PERSable salary as the
Employee/Member Contribution; and 2.42% and 2.58% as cost sharing of the
Employer Contribution Rate in accordance with Government Code sections
20516(a) and 20516(f) respectively.
The Parties agree that the City will not report as special compensation
the value of any Employer Paid Member Contribution. In the event the
City Council adopts a Compensation Plan in which retirement
contributions for non -safety employees 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 employees 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's 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
Harp Employment Agreement Page 5 of 17
Employee's service to Employer. Employer agrees to either pay such
expenses in advance or to reimburse the expenses, so long as the
expenses are incurred and submitted according to Employer's normal
expense reimbursement procedures or such other procedure as may be
designated by the City Council. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by
Employer.
B. Employer shall reimburse Employee for expenses incurred while attending
a reasonable number of League of Cities and other similar conferences
relevant to the performance of Employee's duties. City shall pay
Employee's annual California Bar Association dues, membership in the
Orange County Bar Association and appropriate sections of that
Association and the expenses for satisfying Employee's Mandatory
Continuing Legal Education ("MCLE") obligations. It is not contemplated
that travel outside of Orange County will be required for Employee to meet
the MCLE obligations.
C. The expenses to be budgeted and paid in this Section 5, Paragraphs A
and B above, are exclusive of reasonable expenses related to events,
participation in organizations, or attendance at events or meetings on
behalf of the City as required by the City Council. Employer will separately
budget and pay for membership and participation in community, civic or
other organizations or events in which Employer requires Employee to
participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article VI of the City Charter, Section 600, Employee is
appointed by and serves at the pleasure of the City Council. Nothing in
this Agreement shall prevent, limit or otherwise interfere with the right of
Employer to terminate this Agreement and the employment of Employee
at any time, with or without Cause (as defined below), and with or without
notice. Employer shall pay Employee for all services through the
effective date of termination and Employee shall have no right to any
additional compensation or payment, except as provided in Section 7,
Severance and Benefit Payoff at Termination and General Release
Agreement, below.
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
Harp Employment Agreement Page 6 of 17
(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 counsel for the City 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
exceptions: (1) if Employee is terminated Without Cause on or prior to
March 22, 2026, the maximum cash settlement shall be an amount equal
to Employee's monthly Base Salary, as adjusted, multiplied by 18; or (2)
if Employee is terminated Without Cause after March 22, 2026, the
maximum cash settlement shall be an amount equal to Employee's
monthly Base Salary, as adjusted, multiplied by 12 . (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
of the City Council, Employee shall not be entitled to any additional
compensation or payment, including Severance. If the City Council intends to
Harp Employment Agreement Page 7 of 17
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
proposedtermination, and providing a thirty (30) day period for Employee
to cure. If, in the City Council's independent judgment, Employee cures
the identified reason or reasons for Cause termination, Employee shall
not be terminated therefor. As used in this Agreement, Cause shall only
mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under
thisAgreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as
that term is defined in Government Code Section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City
Councilmade 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 under this
Section within ninety (90) days after any municipal election for the
selection or recall of one or more of the members of the City Council.
D. 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,
Harp Employment Agreement Page 8 of 17
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 during normal business hours, subject to paragraph B of this
Section.
B. Employee is authorized to work the 9/80 schedule; however, as City
Attorney, Employee shall not take a 9/80 day: (1) on any Monday or Friday
immediately precedinga regularly scheduled City Council Meeting; (2) on
the same day as the Assistant City Attorney takes a 9/80 day off; or (3)
any other day where the press of business requires Employee's
attendance, in Employee's good faith judgment, such as court
appearances or emergency City Council meetings.
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,
relatingto the City, its residents, businesses, employees, and customers
("Confidential Information"). Such Confidential Information may include,
butis 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
survivethe termination of this Agreement.
Harp Employment Agreement Page 9 of 17
SECTION 10: Outside Activities
A. Employee shall not engage in any employment, activity, consulting
service orenterprise 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. (GOV§ 1125 - 1129)
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
conductor gross negligence of Employee. (GOV§ 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 ofa 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 Employeemay 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:
Harp Employment Agreement Page 10 of 17
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Aaron C. Harp
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. Bindinq 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
Harp Employment Agreement Page 11 of 17
unenforceable, the remainder of this Agreement shall nevertheless remain
infull 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
andthe NBMC, the City Charter or the NBMC shall prevail over this
Agreement. All other City personnel ordinances, resolutions, rules, and
policies shall apply to Employee in the same manner as applied to other
Executive Management Employees.
F. Employee's Independent Review. Employee acknowledges that
Employee has had the opportunity and has conducted an independent
review of the financial and legal effects of this Agreement. Employee
acknowledges that Employee has made an independent judgment upon
the financial and legal effects of this Agreement and has not relied upon
any representation of Employer, its officers, agents or employees other
than those expressly set forth in this Agreement. Employee acknowledges
that Employee has been advised to obtain and has availed oneself of legal
advice with respect to the terms and provisions of this Agreement.
[Signatures on next page]
Harp Employment Agreement Page 12 of 17
EMPLOYER
CITY OF NEWPORT BEACH,
AM
M
Date:
APPROVED AS TO FORM:
By: e—
Charles Sakai, Attorney
EMPLOYEE,
An Individual
By: —A (.
Aaron C. Harp
Date: 3 /1z /
Date: /Z Z
ATTEST: a�W PO\
By: y,
Leilani Brown, Cit Clerk
Cg4.1IZ0R
[End of Signatures]
Attachment: Exhiuit " General Release Agreement
Harp Employment Agreement Page 13 of 17
Exhibit A
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and
between AARON C. HARP ("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
receipt of 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 b e I o w 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 below 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 byEmployer.
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.
2. Severance. Within ten (10) days following Employee's signing, delivering to
the City Council, and not revoking this Agreement during the Revocation Period, City
shall pay Employee the gross amount provided for in Section 7 of the Seventh
Harp Employment Agreement Page 14 of 17
Amended and Restated Employment Agreement effective March 22, 2022, less
applicable deductions, and shall provide themonths of medical benefits as provided in
that same Section 7 ("Severance"). Employeeacknowledges 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 LaborCode, 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.
Nothing in this Agreement shall affect the EEOC or DFEH rights and
responsibilities to enforce Title VII of the Civil Rights Act of 1964, as amended, the Fair
Employment and Housing Act, or any other applicable law, nor shall anything in this
Agreement be construed as a basis for interfering with Employee's protected right to file
a charge with, or participate in an investigation or proceeding conducted by the EEOC or
any other state, federal or local government entity; except that, if the EEOC or any other
state, federal or local government entity pursues a lawful investigation or issues a
complaint on Employee's behalf, Employee specifically waives and releases Employee's
right, if any to recover any monetary or other benefits of any sort whatsoever arising from
any such investigation, nor will Employee seek reinstatement to Employer employment.
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 1542of 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
Harp Employment Agreement Page 15 of 17
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, 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.
5. Older Workers' Benefits Protection Act. It is the intention of the parties that the
releases contained in this Agreement apply to all claims of any kind against the Employer. In
order to comply with the Older Workers' Benefits Protection Act (29 U.S.C. § 626(f)) and
effectuate the release by Employee of any potential claims under the federal Age Discrimination
in Employment Act, Employee agrees as follows: (i) Employee has carefully reviewed the
foregoing Agreement, and understands the terms and conditions it contains; (ii) by entering into
this Agreement, Employee is giving up potentially valuable legal rights, and Employee intends to
be bound by all the terms and conditions set forth above; (iii) Employee is entering into this
Agreement freely, knowingly, and voluntarily; (iv) Employee has had 21 days to consider whether
to agree to the terms and conditions set forth in this Agreement; and (v) for a seven (7) day period
following Employee's execution of this Agreement, Employee may revoke this Agreement by
delivering a written revocation to counsel for the Employer, and this Agreement shall not become
effective nor enforceable until the revocation period has expired
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Harp Employment Agreement Page 16 of 17
CITY OF NEWPORT BEACH
Dated 120_ By:
Newport Beach Mayor
Dated , 20_ By:
Aaron C. Harp
APPROVED AS TO FORM:
By: _
Date:
ATTEST:
By:
Newport Beach City Clerk
Date:
Harp Employment Agreement Page 17 of 17