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HomeMy WebLinkAboutC-4131 - Employment Agreement - City AttorneyEMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT ( "Agreement") is made effective as of December 22, 2010 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ( "Employer" or "City ") and DAVID R. HUNT ( "Employee ") an individual, (sometimes collectively "the Parties "). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Employee has been employed by City as City Attorney under an Employment Agreement effective from December 22, 2008 through December 21, 2010 ( "2008 Employment Agreement "). C. The Parties mutually agree that they intend that no break in service occur for Employee as the 2008 Employment Agreement ends and this Agreement becomes effective. 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. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non - Renewal A. Unless sooner terminated, as provided in this Agreement, this Agreement shall remain in full force and effect from December 22, 2010 ( "Effective Date "), to and including December 31, 2011 (the "Initial Term ") Page 1 B. If, on or before June 30, 2011, the City gives Employee a written Notice of Non- Renewal, this Agreement and Employee's employment by the City shall conclude upon expiration of the Initial Term, and Employee shall receive no Severance. C. If no timely Notice of Non - Renewal is given by the City to Employee, and the Agreement is not sooner terminated under provisions of this Agreement, then on July 1, 2011 this Agreement shall be automatically extended for an indefinite term, subject to termination as provided for in this Agreement. D. Although the City denies that Non - Renewal of this Agreement, as provided in this Section 1, would constitute circumstances necessitating provision to Employee of what is popularly known as a "name- clearing" or "liberty interest" hearing, as those terms are used in Lubey v. City and County of San Francisco, 98 Cal. App. 3d 340 (1979) and its progeny, the Parties agree that Employee hereby waives any claim for, or right to, a "name- clearing" or "liberty interest" hearing upon, around, after, or because of, Non - Renewal of this Agreement. SECTION 2: Duties and Authority Employer agrees 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 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. 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. Effective December 22, 2010, Employer agrees to pay Employee at the rate of an annual base salary of $220,000.00 (Two Hundred Twenty Thousand Dollars), subject to deduction and withholding of any and all sums required for federal or state income tax, social security tax and all other taxes, deductions or Page 2 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 ( "Senior 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 shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Senior Management Employees or the manner (but not the amount) by which Senior Management Employees are paid. B. Employer, by the City Council, and Employee shall promptly set mutually- agreed upon objectives for the Initial Term of this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during, or after, the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: _Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the end of the 2008 Employment Agreement, and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and his 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 City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 27 days (216 hours) per calendar Page 3 year. His maximum accrual is limited to 1,000 hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to one hundred and twenty (120) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to non - public safety management employees of the City, as provided in the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000.00). F. Automobile Allowance. Employee's duties require him to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 per month as an automobile allowance so that Employee may respond to these demands of City business. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non - personal, job related nature that are reasonably necessary to Employee's service to Employer. Page 4 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. Employee shall be entitled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of his duties. City shall pay Hunt's annual California Bar Association dues, membership in the Orange County Bar Association and appropriate sections of that Association, and the expenses of his satisfying his Mandatory Continuing Legal Education ( "MCLE ") obligations. It is not contemplated that out -of- Orange County travel will be required for Employee to meet his MCLE obligations. 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, 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 his employment with Employer, subject only to Employee's providing forty -five (45) calendar days prior written notice to Employer of the effective date of his resignation. Page 5 SECTION 7: Severance and Benefit Payoff at Termination. and General Release Agreement A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of majority of the members of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee Severance as follows: 1. If termination is effective prior to June 30, 2011, Employer shall pay Employee a lump sum Severance benefit equal to three (3) months of his then applicable base salary, and shall provide three (3) months of medical benefits as provided under the Compensation plan beginning on the Effective Date of termination. 2. If termination is effective after a Notice of Non - Renewal has issued from the City to Employee, but prior to December 31, 2011, Employer shall pay and provide Employee a lump sum Severance benefit equal to the lesser of: (a) three (3) months of his then applicable base salary, and three (3) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination; or (b) the then remaining base salary on the Initial Term and medical benefits through the end of the Initial Term as provided under the Compensation Plan beginning on the Effective Date of Termination. 3. If termination is effective on or after July 1, 2011, and no Notice of Non - Renewal has timely issued from the City to Employee, Employer shall pay Employee a lump sum severance benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. Page 6 B. 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, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 4 or 5, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall 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. Willful abandonment of duties; 4. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and 5. 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. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. Page 7 E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours. SECTION 9: Confidentiality and Non - Disparagement A. Employee acknowledges that in the course of his employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ( "Confidential Information "). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and Page 8 shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, 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 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 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that 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. Page 9 SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: David R. Hunt at the home address then shown in Employer's files 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 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, Page 10 his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Council. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: 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. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or Page 11 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: Keith Curry, ayor Date: APPROVED AS TO FORM: By: R. Crai Scott, Special Counsr EMPLOYEE C- ) By: David R. Hunt Date: 12-1 � 1 d f`Sse#. Whitehead I to the Office of the City Attorney Date: December 3, 2010 ATTEST: t r`' By: wUw Leilani Brown, City Clerk ''\\ Date: NA U �FtN� Page 12 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between DAVID R. HUNT ( "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 he has twenty -one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his 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 "), he 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 him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he 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 him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, 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, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement effective December 22, 2010, less applicable deductions, and shall provide the months of medical benefits as EXHIBIT A— Page 1 provided in that same Section 7 ( "Severance'). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his 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 his employment with Employer which he 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 which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 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 he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. EXHIBIT A — Page 2 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover his /its reasonable attorneys' fees and costs. Dated [MONTH] , 20_ Dated:[MONTH] , 20_ CITY OF NEWPORT BEACH In DAVID R. HUNT EXHIBIT A — Page 3 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 5 (December 14, 2010) TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: R. Craig Scott, for Scott & Whitehead, Special Counsel to the Office of the City Attorney 949 - 222 -0166; rcraigscott @employerlaw.com SUBJECT: CITY ATTORNEY'S EMPLOYMENT AGREEMENT ISSUE: Approval of a new form of Employment Agreement between the City and David R. Hunt, City Attorney. RECOMMENDATION: Adopt the Employment Agreement and Resolution, complete copies of which are attached to this Staff Report, and authorize the Mayor to sign the Employment Agreement on behalf of the City. DISCUSSION: City Attorney David R. Hunt has been employed under an Employment Agreement effective December 22, 2008 and ending by its terms on December 21, 2010 ( "2008 Employment Agreement "). The form of the 2008 Employment Agreement was that used by the City prior to Mr. Hunt's employment. I was retained to represent Council in the review and negotiation of the renewal of Mr. Hunt's contract. In view of Mr. Hunt's extended leave of absence in 2010, Council desired to provide for an additional six month evaluation period. In addition, Council wished to establish a new form of employment agreement for him incorporating various changes, including a number of changes I recommended. The City and Mr. Hunt have therefore negotiated the attached agreement ( "New Employment Agreement "). The New Employment Agreement, while different in form in a number of respects from the 2008 Employment Agreement, is well within the accepted realm of practice in public employment. Council has expressed the Honorable Mayor and Members of City Council -. Re City torney's Employment Agreement dDecember P, 2010 b Page view that it would like to establish this form of contract as a template for use with other senior staff, which I believe is appropriate. If the recommended action is adopted by the City Council, Mr. Hunt's salary and benefits will remain unchanged, There will be no break in service between the 2008 Employment Agreement and the New Employment Agreement, and accrued leave and other benefit balances will carry over. The New Employment Agreement provides for an Initial Term from December 22, 2010 through December 31, 2011. Should the City give Mr. Hunt a written Notice of Non - Renewal on or before June 30, 2011, Mr. Hunt's employment as City Attorney would conclude upon expiration of the Initial Term, and he would receive no severance. If Mr. Hunt were terminated without cause prior to June 30, 2011, severance equivalent to three months of salary and benefits would be payable. In the event the Notice of Non - Renewal is not given, Mr. Hunt's employment will continue on an at -will basis subject to termination with or without cause, according to the terms of the document, and the contract will not have a specified expiration date. Termination without cause would result in severance equivalent to six months salary and benefits, consistent with the 2008 Employment Agreement. The New Employment Agreement clarifies and improves the language governing termination for cause, including notice and opportunity to cure under certain circumstances. In addition, the New Employment Agreement provides that, in all circumstances, severance is only payable if the City Attorney signs and delivers to the City Council a General Release, waiving and releasing all claims against the City, the City Council and all City employees. Under the New Employment Agreement, the City Attorney's salary is set by Resolution. A Resolution for that purpose accompanies this Staff Report. Effective December 22, 2010, the City Attorney will be paid at the rate of an annual base salary of $220,000. Environmental Review Adoption of the New Employment Agreement between the City and the City Attorney is not a project, as defined in the California Environmental Quality Act (CEQA) Implementing Guidelines. Public Notice Notice has been given consistent with the Ralph M. Brown Act. No other public notice is required by this item. . Honorable Mayor and Members of City Council Re: City Attorney's Employment Agreement December 2, 2010 Page 3 Funding Availability The salary, benefits and severance provided for under the New Employment Agreement will be funded out of the City's general fund; funds are available for this purpose. CONCLUSION It is in order for the City Council to approve the New Employment Agreement, and to authorize the Mayor to sign it. Prepared by: SCOTT & WHITEHEAD, SPECIAL COUNSEL TO THE OFFICE OF THE CITY ATTORNEY M Submitted By: SCOTT & WHITEHEAD, SPECIAL COUNSEL TO THE OFFICE OF THE CITY ATTORNEY Attachments: Employment Agreement Resolution Establishing the Salary of the City Attorney Rev. 07.21.101da RESOLUTION NO. 2010- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH WHEREAS, the City Attorney, David R. Hunt, has been employed under an Employment Agreement effective December 22, 2008 and ending by its terms on December 21, 2010; and WHEREAS, the City and Mr. Hunt have negotiated a new form of Employment Agreement, which provides that the City Attorney's salary rate shall be established by Resolution; NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: Effective as of December 22, 2010, the City Attorney will be paid at the rate of an annual base salary of Two Hundred Twenty Thousand Dollars ($220,000). Section 2: This Resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the Resolution. ADOPTED this 14" day of December, 2010. Keith Curry, Mayor ATTEST: Leilani Brown, City Clerk Attachment: Exhibit A: David R. Hunt Employment Contract -1- EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT ( "Agreement ") is made effective as of December 22, 2010 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ( "Employer" or "City ") and DAVID R. HUNT ( "Employee') an individual, (sometimes collectively "the Parties "). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Employee has been employed by City as City Attorney under an Employment Agreement effective from December 22, 2008 through December 21, 2010 ( "2008 Employment Agreement "). C. The Parties mutually agree that they intend that no break in service occur for Employee as the 2008 Employment Agreement ends and this Agreement becomes effective. 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. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non - Renewal A. Unless sooner terminated, as provided in this Agreement, this Agreement shall remain in full force and effect from December 22, 2010 ( "Effective Date "), to and including December 31, 2011 (the "Initial Term "). Page 1 B. If, on or before June 30, 2011, the City gives Employee a written Notice of Non - Renewal, this Agreement and Employee's employment by the City shall conclude upon expiration of the Initial Term, and Employee shall receive no Severance. C. If no timely Notice of Non - Renewal is given by the City to Employee, and the Agreement is not sooner terminated under provisions of this Agreement, then on July 1, 2011 this Agreement shall be automatically extended for an indefinite term, subject to termination as provided for in this Agreement. D. Although the City denies that Non - Renewal of this Agreement, as provided in this Section 1, would constitute circumstances necessitating provision to Employee of what is popularly known as a "name - clearing" or "liberty interest" hearing, as those terms are used in Lubey v. City and County of San Francisco 98 Cal. App. 3d 340 (1979) and its progeny, the Parties agree that Employee hereby waives any claim for, or right to, a "name- clearing" or "liberty interest" hearing upon, around, after, or because of, Non - Renewal of this Agreement. SECTION 2: Duties and Authority Employer agrees 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 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. 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. Effective December 22, 2010, Employer agrees to pay Employee at the rate of an annual base salary of $220,000.00 (Two Hundred Twenty Thousand Dollars), subject to deduction and withholding of any and all sums required for federal or state income tax, social security tax and all other taxes, deductions or Page 2 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 ( "Senior 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 shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Senior Management Employees or the manner (but not the amount) by which Senior Management Employees are paid. B. Employer, by the City Council, and Employee shall promptly set mutually- agreed upon objectives for the Initial Term of this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during, or after, the period in which this Agreement remains in effect. C. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in his employment service between the end of the 2008 Employment Agreement, and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and his 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 City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 27 days (216 hours) per calendar Page 3 year. His maximum accrual is limited to 1,000 hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to one hundred and twenty (120) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to non- public safety management employees of the City, as provided in the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. 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 ($1,000.00). F. Automobile Allowance. Employee's duties require him to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 per month as an automobile allowance so that Employee may respond to these demands of City business. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non - personal, job related nature that are reasonably necessary to Employee's service to Employer. Page 4 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. Employee shall be entitled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of his duties. City shall pay Hunt's annual California Bar Association dues, membership in the Orange County Bar Association and appropriate sections of that Association, and the expenses of his satisfying his Mandatory Continuing Legal Education ( "MCLE ") obligations. It is not contemplated that out -of- Orange County travel will be required for Employee to meet his MCLE obligations. 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, 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 his employment with Employer, subject only to Employee's providing forty -five (45) calendar days prior written notice to Employer of the effective date of his resignation. Page 5 SECTION 7: Severance and Benefit Payoff at Termination and General Release Agreement A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of majority of the members of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay and provide Employee Severance as follows: 1. If termination is effective prior to June 30, 2011, Employer shall pay Employee a lump sum Severance benefit equal to three (3) months of his then applicable base salary, and shall provide three (3) months of medical benefits as provided under the Compensation plan beginning on the Effective Date of termination. 2. If termination is effective after a Notice of Non - Renewal has issued from the City to Employee, but prior to December 31, 2011, Employer shall pay and provide Employee a lump sum Severance benefit equal to the lesser of: (a) three (3) months of his then applicable base salary, and three (3) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination; or (b) the then remaining base salary on the Initial Term and medical benefits through the end of the Initial Term as provided under the Compensation Plan beginning on the Effective Date of Termination. 3. If termination is effective on or after July 1, 2011, and no Notice of Non - Renewal has timely issued from the City to Employee, Employer shall pay Employee a lump sum severance benefit equal to six (6) months of his then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. Page 6 B. 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, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 4 or 5, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall 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. Willful abandonment of duties; 4. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and 5. 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. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. Page 7 E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours. SECTION 9: Confidentiality and Non - Disparagement A. Employee acknowledges that in the course of his employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ( "Confidential Information "). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and Page 8 shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, 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 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 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that 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. Page 9 SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: David R. Hunt at the home address then shown in Employer's files 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 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, Page 10 his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Council. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: 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. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or Page 11 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation Keith Curry, Mayor APPROVED AS TO FORM: EMPLOYEE By 4 r v R. Crai Scott, f e i Whitehead Special Couns I to the Office of the City Attorney Date: December 3, 2010 ATTEST: M Leilani Brown, City Clerk Date: Page 12 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between DAVID R. HUNT ( "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 he has twenty -one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his 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 "), he 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 him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he 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 him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, 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, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement effective December 22, 2010, less applicable deductions, and shall provide the months of medical benefits as EXHIBIT A — Page provided in that same Section 7 ( "Severance "). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his 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 his employment with Employer which he 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 which the creditor does not know or Suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 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 he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. EXHIBIT A — Page 2 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover his /its reasonable attorneys' fees and costs. Dated [MONTH] , 20_ CITY OF NEWPORT BEACH Dated:[MONTH] , 20_ DAVID R. HUNT EXHIBIT A — Page 3 0 0 EMPLOYMENT AGREEMENT The City of Newport Beach ( "City") and David Hunt ( "HUNT ") agree as follows: SECTION 1. Employment as City Attorney. City shall employ HUNT as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and Municipal Code of the City of Newport Beach. HUNT shall also perform other duties assigned by the City Council, or as my be required by law, without additional compensation, so long as those duties are related to matters of concern to the City of Newport Beach or cities generally and are performed by City Attorney's of other municipalities. Hunt shall not provide legal services for any person or entity other than City without prior written consent of the City Council. SECTION 2. Effective Date/Term. This Agreement shall commence on December 22, 2008 and shall remain in effect until December 21, 2010, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 9 shall survive the expiration of this Agreement. SECTION 3. Base Compensation. A. City shall pay HUNT an annual base salary of $220,000.00 in twenty-six (26) equal installments paid at the same time other management employees of the City are paid. City shall have the right to deduct or withhold from HUNT's base salary any and all sums required for federal or state income tax, social security tax and all other taxes, deductions or withholdings required by then current state, federal or local law. City shall also deduct sums HUNT is obligated to pay because of participation in plans or programs described in Section 6 of this Agreement. B. HUNT shall devote eighty (80) hours every two weeks, and such additional hours as may be necessary, to the performance of his duties as City Attorney unless on paid leave and /or unpaid leave approved by the City Council. HUNT shall not be entitled to any compensation, or compensatory time off, for overtime. SECTION 4. Termination and Severance Pa v. A. HUNT may terminate this Agreement by giving the City at least forty -five (45) days prior written notice of termination. 0 0 B. City may terminate HUNT, without cause, upon the affirmative votes of a majority (4) of the (7) member City Council at any regular meeting. However, consistent with provisions of the City Charter, HUNT may not be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of the City Council. HUNT shall be furnished with written notice stating the Council's intention to terminate this Agreement, and any reasons for termination, if appropriate, at least forty-five (45) days prior to the effective date of termination. C. In the event this Agreement is terminated by the City, HUNT shall receive severance pay equal to one -half (1/2) of his annual base salary as of the date of termination. However, HUNT shall not be entitled to any severance pay if HUNT is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. SECTION 5. Employee Benefits. A. Commencing on the effective date of this Agreement, HUNT shall accumulate and use paid leave pursuant to the City's Flex Leave policies at the rate of twenty -seven (27) days, (216 hours) per year, except that the limits on accumulated Flex Leave shall be 1000 hours. HUNT shall also be entitled to one hundred twenty (120) hours of administrative leave per year. Upon the effective date of this agreement 120 hours of leave will be credited to the Flex Leave account. B. HUNT shall receive the same health insurance and retirement benefits as are available to other non - safety management employees of the City. C. HUNT shall be entitled to participate in plans and programs available to other non - safety management employees of the City such as short term and long term disability plans, life insurance plans, and deferred compensation plans. D. City shall reimburse HUNT for the actual costs of the annual physical examination up to a maximum of $1,000.00. E. The City personnel ordinances, resolutions, rules and policies shall apply to HUNT in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, the City Charter shall prevail. 2 • • F. Hunt's duties require him to be available to respond to the demands of City business after regular work hours and on weekends. City shall pay HUNT $500 per month as an automobile allowance. G. This Agreement shall be deemed amended whenever the City Council adopts a resolution or takes action changing the benefits, plans or other terms and conditions of employment generally applicable to other non - safety management employees of the City. SECTION 6. Business Expenses. City shall reimburse HUNT for all reasonable, authorized City related business expenses (except automobile expenses) actually incurred by HUNT in the performance of services pursuant to this Agreement. HUNT shall, to the extent possible, use a City issued credit card issued to pay for business expenses. HUNT shall comply with City Council policies for expense and travel reimbursement. City shall pay Hunt's annual California BAR dues and the expenses of maintaining his license to practice law. SECTION 7. Meetin-gs and Conferences. HUNT shall be entitled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of duties and /or MCLE obligations required of the City Attorney pursuant to this Agreement within the City Attorney Department's authorized budget. SECTION 8. Evaluation. The City Council shall conduct an initial evaluation of HUNT's performance within six (6) months from the effective date of this Agreement. Subsequent to the initial evaluation, the City Council shall annually evaluate HUNT's performance. The City Council may, as part of any evaluation, determine if HUNT's base salary or benefits should be modified and the effective date of any such modification. SECTION 9. General Provisions. A. HUNT shall serve at the pleasure of the City Council as specified in the Newport Beach City Charter and may be terminated "at will" and without specification of cause, subject only to the procedural requirements specified in this Agreement, the Brown Act and /or relevant provisions of the City Charter or City ordinance. B. This Agreement shall be binding on, and inure to the benefit of, the heirs, executors, and assigns of HUNT. 3 C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of the City), or when properly addressed and deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested. D. This Employment Agreement represents the entire understanding of the parties and any modification is effective only if it is in writing and signed by the party to be charged. o � 01b Dated: tBy.. P/c Mayor of Newport Beach Dated: 12I let APPROVED AS TO FORM: By: Robin L. Clauson, City Attorney N Y�� By: J�) - David Hunt ATTEST: By: 'Q. Leilani Brown, City Clerk • 5� //0 aa() q Agenda Item No. S16 December 9, 2008 EMPLOYMENT AGREEMENT 64/,31 er n� cm ccuxGi cm of r�waoar e�i The City of Newport Beach ( "City ") and David Hunt ( "HUNT') agree as illf7rzcr 0 2008 SECTION 1. Employment as City Attomev. City shall employ HUNT as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and Municipal Code of the City of Newport Beach. HUNT shall also perform other duties assigned by the City Council, or as my be required by law, without additional compensation, so long as those duties are related to matters of concern to the City of Newport Beach or cities generally and are performed by City Attorney's of other municipalities. Hunt shall not provide legal services for any person or entity other than City without prior written consent of the City Council. SECTION 2. Effective Date/Term. This Agreement shall commence on December 22, 2008 and shall remain in effect until December 21, 2010, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 9 shall survive the expiration of this Agreement. SECTION 3. Base Compensation. A. City shall pay HUNT an annual base salary of $220,000.00 in twenty-six (26) equal installments paid at the same time other management employees of the City are paid. City shall have the right to deduct or withhold from HUNT's base salary any and all sums required for federal or state income tax, social security tax and all other taxes, deductions or withholdings required by then current state, federal or local law. City shall also deduct sums HUNT is obligated to pay because of participation in plans or programs described in Section 6 of this Agreement. B. HUNT shall devote eighty (80) hours every two weeks, and such additional hours as may be necessary, to the performance of his duties as City Attorney unless on paid leave and /or unpaid leave approved by the City Council. HUNT shall not be entitled to any compensation, or compensatory time off, for overtime. SECTION 4. Termination and Severance Pay. A. HUNT may terminate this Agreement by giving the City at least forty-five (45) days prior written notice of termination. 0 B. City may terminate HUNT, without cause, upon the affirmative votes of a majority (4) of the (7) member City Council at any regular meeting. However, consistent with provisions of the City Charter, HUNT may not be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of the City Council. HUNT shall be fumished with written notice stating the Council's intention to terminate this Agreement, and any reasons for termination, if appropriate, at least forty -five (45) days prior to the effective date of termination. C. In the event this Agreement is terminated by the City, HUNT shall receive severance pay equal to one -half (1/2) of his annual base salary as of the date of termination. However, HUNT shall not be entitled to any severance pay if HUNT is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. SECTION 5. Employee Benefits. A. Commencing on the effective date of this Agreement, HUNT shall accumulate and use paid leave pursuant to the City's Flex Leave policies at the rate of twenty-seven (27) days, (216 hours) per year, except that the limits on accumulated Flex Leave shall be 1000 hours. HUNT shall also be entitled to one hundred twenty (120) hours of administrative leave per year. Upon the effective date of this agreement 120 hours of leave will be credited to the Flex Leave account. B. HUNT shall receive the same health insurance and retirement benefits as are available to other non - safety management employees of the City. C. HUNT shall be entitled to participate in plans and programs available to other non -safety management employees of the City such as short term and long term disability plans, life insurance plans, and deferred compensation plans. D. City shall reimburse HUNT for the actual costs of the annual physical examination up to a maximum of $1,000.00. E. The City personnel ordinances, resolutions, rules and policies shall apply to HUNT in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, the City Charter shall prevail. F. Hunt's duties require him to be available to respond to the demands of City business after regular work hours and on weekends. City shall pay HUNT $500 per month as an automobile allowance. 2 0 G. This Agreement shall be deemed amended whenever the City Council adopts a resolution or takes action changing the benefits, plans or other terms and conditions of employment generally applicable to other non- safety management employees of the City. SECTION 6. Business Expenses. City shall reimburse HUNT for all reasonable, authorized City related business expenses (except automobile expenses) actually incurred by HUNT in the performance of services pursuant to this Agreement. HUNT shall, to the extent possible, use a City issued credit card issued to pay for business expenses. HUNT shall comply with City Council policies for expense and travel reimbursement. City shall pay Hunt's annual California BAR dues and the expenses of maintaining his license to practice law. SECTION 7. Meetinos and Conferences. HUNT shall be entitled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of duties and /or MCLE obligations required of the City Attorney pursuant to this Agreement within the City Attorney Department's authorized budget. SECTION 8. Evaluation. The City Council shall conduct an initial evaluation of HUNT's performance within six (6) months from the effective date of this Agreement. Subsequent to the initial evaluation, the City Council shall annually evaluate HUNTs performance. The City Council may, as part of any evaluation, determine if HUNT's base salary or benefits should be modified and the effective date of any such modification. SECTION 9. General Provisions. A. HUNT shall serve at the pleasure of the City Council as specified in the Newport Beach City Charter and may be terminated "at will" and without specification of cause, subject only to the procedural requirements specified in this Agreement, the Brown Act and /or relevant provisions of the City Charter or City ordinance. B. This Agreement shall be binding on, and inure to the benefit of, the heirs, executors, and assigns of HUNT. C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of the City), or when properly addressed and deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested. i • 0 G. This Employment Agreement represents the entire understanding of the parties and any modification is effective only if it is in writing and signed by the party to be charged. Dated: Dated: APPROVED AS TO FORM: M Robin L. Clauson, City Attorney n Mayor of Newport Beach By: David Hunt ATTEST: Leilani I. Brown, City Clerk