HomeMy WebLinkAboutC-4100 - Employment Agreement, Amendment 1-2 and Restated Employment AgreementsSECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of November 25, 2014 and is entered into by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
Charter City ("Employer" or "City") and LEILANI I. BROWN ("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 Clerk since November
22, 2008. Employee is currently employed under a First Amended and Restated
Employment Agreement dated March 11, 2014 ("Employment Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and that upon execution of this Agreement, the
Employment Agreement shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term
This Agreement shall become effective November 25, 2014 ("Effective Date"). Subject
to City's right to terminate Employee's employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
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
Employer agrees to employ Employee as City Clerk, 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. Employer agrees to pay Employee at the rate of an annual base salary of
$142,000.00 (one hundred forty-two thousand dollars and no cents), subject to
deduction and withholding of any and all sums required for federal or state
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pension contributions, and all other taxes, deductions or withholdings required by
then current state, federal or local law, prorated and paid on Employer's normal
paydays for the City Manager, City Attorney, City Clerk, and any Department
Directors not covered by collective bargaining agreements ("Executive
Management Employees"). Employer shall also deduct sums Employee is
obligated to pay because of participation in plans or 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. This
Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the base salary of Executive Management Employees or the
manner (but not the amount) by which Executive Management Employees are
paid.
B. Employer also agrees to pay Employee a one-time merit payment of $18.08 per
paid work day from the date of adoption of this Agreement back to the beginning
of the Pay Period including November 15, 2014.
C. Employer, by the City Council, and Employee shall promptly set mutually -agreed
upon objectives for each year under this Agreement. Employer, by the City
Council, may elect to conduct an evaluation of Employee's performance at any
time or times during the period in which this Agreement remains in effect.
D. 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 her
employment service between the Employment Agreement and this Agreement.
All of Employee's accrued leave and other benefit balances shall carry over, and
her 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 9.69 hours per Pay Period.
Employee's maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to 40 (forty) 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. Except as expressly provided herein, Employee shall
receive the same health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and long term disability
plans, life insurance plans, and deferred compensation plans, as are available
under the Compensation Plan. This Agreement shall be deemed amended as to
these benefits, and these benefits only, whenever the City Council adopts a
resolution or takes action changing these benefits under the Compensation Plan.
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 $1,000.00 (one thousand dollars no cents).
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
G. Amendment of Benefits. Employees benefits provided under this Section 4 are
not tied to the compensation of any other City employee or group of City
employees except as expressly provided in this Section.
H. PERS. The Parties agree that prior to the Pay Period including June 30, 2015,
Employee shall pay a total of 10.90% of the Employee's retirement costs (5.58%
employee normal member contribution ["EE side"], 2.42% of employer cost
sharing and 2.90% payment pursuant to Government Code Section 20516(f)
["ER side"] on a pre-tax basis pursuant to IRS Code Section 414(h)(2). Effective
the Pay Period including June 30, 2015, Employee shall contribute an additional
1.45% of pensionable pay toward retirement costs under Government Code
Section 20516(f), for a total contribution of 12.35%. The Parties agree that the
City will not report the value of an Employer Paid Member Contribution as special
compensation. In the event the City Council adopts a Compensation Plan in
which the contribution toward retirement by the Key and Management Group is
greater than 12.35%, this Agreement shall be deemed amended and Employee
will be subject to same formula or percentage contribution as it applied to the Key
and Management Group covered under the Compensation Plan and for the same
duration. In no event shall the Employee's contribution toward retirement be less
than 12.35%.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees 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.
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B. City shall reimburse Employee for expenses incurred in her attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of her duties.
C. The expenses to be budgeted and paid in the 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 her employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of her resignation.
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 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 General
Release Agreement in the form attached hereto as Exhibit A, Employer shall pay
Employee a lump sum benefit equal to six (6) months of her 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 (collectively
"Severance").
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 at a Regular Meeting of the City Council,
Employee shall not be entitled to any additional compensation or payment,
including Severance. If the City Council intends to terminate with Cause, based
on a reason or reasons set forth in subpart 5 or 6, immediately below, the
Council shalt 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. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City Council
made by the City Council as a body; and
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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. 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.
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
A. Employee shall devote her full energies, interest, abilities and productive time to
the performance of this Agreement and utilize her 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, subject to paragraph B of this Section, below.
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1)
of the Employee Policy Manual and referred to in Miscellaneous Section (D) of
the Compensation Plan.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of her employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, 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.
Page 9
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 her 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.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
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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 Manager
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Leilani I. Brown
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,
her 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 her employment is, and will continue to be, at the
will of the City Council.
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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 she has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of,
legal advice with respect to the terms and provisions of this Agreement.
[Signatures on Next Page.]
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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:
Rush N. Hill, II, Mayor
Date: L I 1 2 15. j Ll
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By:
. C.
Aaron C. Harp, City Attorney
Date: (112-5-1( y
ATTEST:
By:
Deputy City Clerk
Date: 11 / G� -I V
EMPLOYEE,
An Individual
BrownLeilani 1.
Date: 11. aA5, )
[End of Signatures]
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GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
LEILANI BROWN ("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 she has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with her 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"), she 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 her through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether she 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 her as a result of her employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to her, 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 Second Amended and Restated Employment
Agreement dated November 25, 2014, less applicable deductions, and shall provide the
months of medical benefits as provided in that same Section 7 ("Severance").
Employee acknowledges that the Severance is in excess of all amounts due and owing
her as a result of her 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
EXHIBIT A— Page
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
her employment with Employer which she 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 she does not know or suspect to exist in her favor.
Employee further acknowledges that she has read this General Release and that
she understands that this is a general release, and that she intends to be legally bound
by the same.
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 her/its reasonable attorneys' fees and costs.
[Signatures on Next Page.]
EXHIBIT A — Page 2
Dated 20_ CITY OF NEWPORT BEACH
0
Dated: 20_
Leilani Brown
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
0
Aaron C. Harp, City Attorney
Date:
ATTEST:
m
Deputy City Clerk
Date:
EXHIBIT A — Page 3
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of March 11, 2014 and is entered into by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or
"City") and LEILANI I. BROWN ("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 Clerk since November
22, 2008. Employee is currently employed under an Amended and Restated
Employment Agreement dated March 26, 2013 ("Employment Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and that upon execution of this Agreement, the
Employment Agreement shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term
This Agreement shall become effective March 11, 2014 ("Effective Date"). Subject to
City's right to terminate Employee's employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
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
Employer agrees to employ Employee as City Clerk, 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. Employer agrees to pay Employee at the rate of an annual base salary of
$137,300 (one hundred thirty-seven thousand three hundred dollars), subject to
deduction and withholding of any and all sums required for federal or state
state income tax, pension contributions, and all other taxes, deductions or
withholdings required by then current state, federal or local law, prorated and
paid on Employer's normal paydays for the City Manager, City Attorney, City
Clerk, and any Department Directors not covered by collective bargaining
agreements ("Executive Management Employees"). Employer shall also deduct
sums Employee is obligated to pay because of participation in plans or 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.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the base salary of Executive Management Employees or the
manner (but not the amount) by which Executive Management Employees are
paid.
B. Employer also agrees to pay Employee a one-time merit payment of $14.24 per
paid work day from the date of adoption of this Agreement back to November 16,
2011
C. Employer, by the City Council, and Employee shall promptly set mutually -agreed
upon objectives for each year under this Agreement. Employer, by the City
Council, may elect to conduct an evaluation of Employee's performance at any
time or times during the period in which this Agreement remains in effect.
D. 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 her
employment service between the Employment Agreement and this Agreement.
All of Employee's accrued leave and other benefit balances shall carry over, and
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her 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 9.69 hours per Pay Period.
Employee's maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to 40 (forty) 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. Except as expressly provided herein, Employee shall
receive the same health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and long term disability
plans, life insurance plans, and deferred compensation plans, as are available
under the Compensation Plan. This Agreement shall be deemed amended as to
these benefits, and these benefits only, whenever the City Council adopts a
resolution or takes action changing these benefits under the Compensation Plan.
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 $1,000 (one thousand dollars).
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
G. Amendment of Benefits. Employees benefits provided under this Section 4 are
not tied to the compensation of any other City employee or group of City
employees except as expressly provided in this Section.
H. PERS. The Parties agree that prior to the Pay Period including June 30, 2014,
Employee shall pay a total of 9.45% of the Employee's retirement costs (5.58%
employee normal member contribution ["EE side"], 2.42% of employer costs
sharing and 1.45% payment pursuant to Government Code Section 20516(f)
["ER side"] on a pre-tax basis pursuant to IRS Code Section 414(h)(2). Effective
the Pay Period including June 30, 2014, Employee shall contribute an additional
1.45% of pensionable pay towards retirement costs pursuant to Government
Code Section 20516(f), for a total contribution of 10.9%. Effective the Pay Period
including June 30, 2015, Employee shall contribute an additional 1.45% of
pensionable pay towards retirement costs pursuant to Government Code Section
20516(f), for a total contribution of 12.35%. The Parties agree that the City will
not report the value of any Employer Paid Member Contribution as special
compensation.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees 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. City shall reimburse Employee for expenses incurred in her attending a
reasonable number of League of Cities and other similar conferences relevant to
the performance of her duties.
C. The expenses to be budgeted and paid in the 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 her employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of her resignation.
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 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 General
Release Agreement in the form attached hereto as Exhibit A, Employer shall pay
Employee a lump sum benefit equal to six (6) months of her 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 (collectively
"Severance').
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 at a Regular Meeting of the City Council,
Employee shall not be entitled to any additional compensation or payment,
including Severance. If the City Council intends to terminate with Cause, based
on a reason or reasons set forth in subpart 5 or 6, immediately below, the
Council shall first deliver to Employee a written Notice of Intent to Terminate,
stating the reason or reasons for the proposed termination, and providing a thirty
(30) day period for Employee to cure. If, in the City Council's independent
judgment, Employee cures the identified reason or reasons for Cause
termination, Employee shall not be terminated therefor. As used in this
Agreement, Cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City Council
made by the City Council as a body; and
6. Any grossly negligent action or inaction by Employee that materially and
adversely: (a) impedes or disrupts the operations of Employer or its
Page 7
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.
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
A. Employee shall devote her full energies, interest, abilities and productive time to
the performance of this Agreement and utilize her 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, subject to paragraph 8 of this Section, below.
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1)
of the Employee Policy Manual and referred to in Miscellaneous Section (D) of
the Compensation Plan.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of her employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information'). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, 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.
.m
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 her 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.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
Wom
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 Manager
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Leilani 1. Brown
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,
her 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 her employment is, and will continue to be, at the
will of the City Council.
Page 11
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 she has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of,
legal advice with respect to the terms and provisions of this Agreement.
[Signatures on Next Page.]
Page 12
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:
Rush N. Hill, II, Mayor
Date: S, 25 • I y
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By: — C.
Aaron C. Harp, City Attorney
Date:—3 Z �( / / Lr
ATTEST:
r
By:
Deputy City Clerk
Date: ll tl
,�--�
EMPLOYEE,
An Individual
Date: `3 2,6' I q
[End of Signatures]
Page 13
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
LEILANI BROWN ("Employee") and CITY OF NEWPORT BEACH ("Employes"), 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 she has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with her 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"), she 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 her through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether she 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 her as a result of her employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to her, 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 dated March _, 2014,
less applicable deductions, and shall provide the months of medical benefits as
provided in that same Section 7 ("Severance"). Employee acknowledges that the
Severance is in excess of all amounts due and owing her as a result of her 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
EXHIBIT A — Page 1
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
her employment with Employer which she 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 she does not know or suspect to exist in her favor.
Employee further acknowledges that she has read this General Release and that
she understands that this is a general release, and that she intends to be legally bound
by the same.
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 her/its reasonable attorneys' fees and costs.
[Signatures on Next Page.]
EXHIBIT A — Page 2
Dated 20_ CITY OF NEWPORT BEACH
Dated: 20_
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
m
Aaron C. Harp, City Attorney
ATTEST:
Deputy City Clerk
Date:
Leilani Brown
EXHIBIT A — Page 3
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement') is
made effective as of March 26, 2013 and is entered into by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or
"City") and LEILANI 1. BROWN ("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 cavy 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 Clerk since November
22, 2008. Employee is currently employed under an Amended and Restated
Employment Agreement dated November 13, 2012 ("Employment Agreement').
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and that upon execution of this Agreement, the
Employment Agreement shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
Page 1
SECTION 1: Term
This Agreement shall become effective March 26, 2013 ("Effective Date'). Subject to
City's right to terminate Employee's employment at any time, as provided for in this
Agreement, the Term of this Agreement is two (2) years from the Effective Date, and
shall automatically be extended for one additional twelve (12) month period on each
annual anniversary of the Effective Date of the Agreement unless City notifies
Employee of its intent not to extend the Agreement at least thirteen (13) months prior to
expiration of the original Term or any subsequent automatic extension of the Term.
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
Employer agrees to employ Employee as City Clerk 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. Employer agrees to pay Employee at the rate of an annual base salary of
$133,300 (one hundred thirty-three thousand three hundred dollars), subject to
deduction and withholding of any and all sums required for federal or state
income tax, pension contributions, and all other taxes, deductions or withholdings
required by then current state, federal or local law, prorated and paid on
Employer's normal paydays for the City Manager, City Attorney, City Clerk, and
any Department Directors not covered by collective bargaining agreements
("Executive Management Employees"). Employer shall also deduct sums
Page 2
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.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the base salary of Executive Management Employees or the
manner (but not the amount) by which Executive Management Employees are
paid.
B. Employer also agrees to pay Employee a one-time merit payment of $36.54
(thirty-six dollars and fifty-four cents) per paid work day from the date of adoption
of this Agreement back to November 22, 2012.
C. Employer, by the City Council, and Employee shall promptly set mutually -agreed
upon objectives for each year under this Agreement. Employer, by the City
Council, may elect to conduct an evaluation of Employee's performance at any
time or times during the period in which this Agreement remains in effect.
D. 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 her
employment service between the Employment Agreement and this Agreement.
All of Employee's accrued leave and other benefit balances shall carry over, and
her 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 9.69 hours per Pay Period.
Page 3
Employee's maximum accrual for Flex Leave is limited to 400 (four hundred)
hours. The right to sell back accumulated Flex Leave shall be consistent with
the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to 40 (forty) 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. Except as expressly provided herein, Employee shall
receive the same health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and long term disability
plans, life insurance plans, and deferred compensation plans, as are available
under the Compensation Plan. This Agreement shall be deemed amended as to
these benefits, and these benefits only, whenever the City Council adopts a
resolution or takes action changing these benefits under the Compensation Plan.
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 $1,000 (one thousand dollars).
F. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
G. Amendment of Benefits. Employees benefits provided under this Section 4 are
not tied to the compensation of any other City employee or group of City
employees except as expressly provided in this Section.
H. PERS. Employee is presently paying a total of nine percent (9%) of the
Employee's retirement costs (3.42% employer cost sharing ["ER side"] and
5.58% employee normal member contribution ["EE side"]) on a pre-tax basis
-
..-
pursuant to IRS Code Section 414(h)(2), and the Parties agree that Employee
shall continue to do so. In the event the City Council adopts a Compensation
Plan in which the contribution toward retirement by the Key and Management
Group is greater than nine percent (9%), but not less than nine percent (9%), that
set forth herein, this Agreement shall be deemed amended and Employee will be
subject to the same formula or percentage contribution as it applied to the Key
and Management Group covered under the Compensation Plan and for the same
duration. In no event shall Employee's contribution towards Employee's
retirement be less than nine percent (9%).
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees 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 her duties.
C. The expenses to be budgeted and paid in the 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 her employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of her resignation.
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 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 General
Release Agreement in the form attached hereto as Exhibit A, Employer shall pay
Employee a lump sum benefit equal to six (6) months of her 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 (collectively
"Severance").
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 at a Regular Meeting of the City Council,
Employee shall not be entitled to any additional compensation or payment,
including Severance. If the City Council intends to terminate with Cause, based
on a reason or reasons set forth in subpart 5 or 6, immediately below, the
Council shall first deliver to Employee a written Notice of Intent to Terminate,
stating the reason or reasons for the proposed termination, and providing a thirty
(30) day period for Employee to cure, If, in the City Council's independent
judgment, Employee cures the identified reason or reasons for Cause
termination, Employee shall not be terminated therefor. As used in this
Agreement, Cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City Council
made by the City Council as a body; and
6. Any grossly negligent action or inaction by Employee that materially and
adversely: (a) impedes or disrupts the operations of Employer or its
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.
rm
D. If Employee terminates this Agreement (thereby terminating Employee's
employment), Employee shall not be entitled to any additional compensation or
payment, including Severance.
E. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accrued
but unused Administrative Leave.
SECTION 8: Employee's Obligations and Hours of Work
A. Employee shall devote her full energies, interest, abilities and productive time to
the performance of this Agreement and utilize her 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, subject to paragraph B of this Section, below.
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1)
of the Employee Policy Manual and referred to in Miscellaneous Section (D) of
the Compensation Plan.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of her employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, 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 her 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.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
Page 10
(1) EMPLOYER:
Prior to May 1, 2013:
City of Newport Beach
c/o City Manager
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
On or after May 1, 2013:
City of Newport Beach
c/o City Manager
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Leilani I. Brown
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. 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, her 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 her employment is, and will continue to be, at the will of the City
Council.
Page 11
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 she has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of,
legal advice with respect to the terms and provisions of this Agreement.
[Signatures on Next Page.]
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 D. Curry, Mayor
Date:
APPROVED AS TO FORM:
CITY
ATTORNS OICE
By:
A
Harp, City Attorney
Date:—
ATTEST:
By: a ,
Trl4erI m Deputy City Clerk
Date:-a42A,J
EMPLOYEE,
An Individual
MINIMUM
:.
Date: �- 4
[End of Signatures.]
Page 13
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
LEILANI BROWN ("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 she has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with her 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"), she 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 her through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether she 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 her as a result of her employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to her, 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 dated March _, 2011,
less applicable deductions, and shall provide the months of medical benefits as
provided in that same Section 7 ("Severance"). Employee acknowledges that the
Severance is in excess of all amounts due and owing her as a result of her 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
EXHIBIT A —Page 1
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
her employment with Employer which she now has, or ever had, including but not
limited to any rights, claims, causes of action or damages arising under Title Vll 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 she does not know or suspect to exist in her favor.
Employee further acknowledges that she has read this General Release and that
she understands that this is a general release, and that she intends to be legally bound
by the same.
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 her/its reasonable attorneys" fees and costs.
[Signatures on Next Page.]
•, '• OF '•R
Dated: 20_„
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
m
Aaron C. Harp, City Attorney
Date:
ATTEST:
0
Deputy City Clerk
Leflani Brown
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
dated November L, 2012, (the "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 LEILANI I. BROWN ("Employee") an individual, (sometimes
collectively referred to herein as "the Parties").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. Employee has been continuously employed by City as City Clerk under an
Employment Agreement effective from November 22, 2008 through November 22,
2010 ("Initial Employment Agreement"), that certain First Amended Employment
Agreement dated March 9, 2010 ("First Amendment") and, most recently, an
Employment Agreement dated April 12, 2011 (Second Employment Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Initial Employment Agreement, First Amendment, and Second Employment
Agreement, and that upon execution of this Agreement, the Initial Employment
Agreement, First Amendment and Second Employment Agreement shall have no
force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Term and Notice of Non -Renewal
This Agreement shall be for an indefinite term, subject to termination as provided for in
this Agreement.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Clerk 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. Employer agrees to pay Employee: (i) an annual base salary of $123,800 (One
Hundred Twenty -Three Thousand Eight Hundred Dollars); and (ii) a one-time
merit payment in the amount of $49.89 (Forty -Nine Dollars and Eighty -Nine
Cents) for each paid work day from November 21, ,2011 to the Effective Date of
this Agreement, subject to deduction and withholding of any and all sums
required for federal or state income tax, pension contributions, and all other
taxes, deductions or withholdings required by then current state, federal or local
law, prorated and paid on Employer's normal paydays for the City Manager, City
Attorney, City Clerk, and any Department Directors not covered by collective
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 shall be established by resolution of the City Council. This Agreement
is
shall be deemed amended whenever the City Council adopts a resolution
changing the base salary of Executive Management Employees or the manner
(but not the amount) by which Executive Management Employees are paid.
B. Employer, by the City Council, and Employee shall promptly set mutually -agreed
upon objectives for each year under this Agreement. Employer, by the City
Council, may elect to conduct an evaluation of Employee's performance at any
time or times during the period in which this Agreement remains in effect.
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 her
employment service between the end of the Initial Employment Agreement and
this Agreement. All of Employee's accrued leave and other benefit balances
shall carry over, and her 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 30 days (9.23 hours per Pay Period)
per calendar year. Employee's Maximum Allowable Balance (hours) shall be
four hundred (400) hours on and after the Effective Date of this Agreement. The
Parties agree that if Employee has a Flex Leave balance of over 400 hours upon
the Effective Date of this Agreement, Employee shall have thirty (30) calendar
days from the Effective Date of this Agreement to use or seliback any Flex Leave
in excess of 400 hours in accordance with the Leave Sellback provisions set forth
in the Compensation Plan ("Initial Sellback"). Any Initial Sellback by Employee of
Flex Leave hours shall be paid by City at Employee's hourly rate of pay in effect
�
prior to the Effective date of this Agreement. After the Initial Sellback, the right to
sell back accumulated Flex Leave shall be consistent with the Compensation
Plan.
C. Administrative Leave. Effective January 1, 2013, Employee shall only be entitled
to forty (40) 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. Except as expressly provided herein, Employee shall
receive the same health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and long term disability
plans, life insurance plans, and deferred compensation plans, as are available 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. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
G. Amendment. Employees benefits provided under this Section 4 are not tied to
the compensation of any other City employee or group of City employees except
as expressly provided in this Section.
H, PERS. Pursuant to a separate agreement, miscellaneous (non -safety) members
have agreed to have 3.42% of the employer retirement cost added to the
=1
employee's rate pursuant to California Government Code Section 20516. The
Parties agree that Employee shall pay a total of nine percent (9%) of the
Employee's retirement costs (3.42% employer cost sharing [ER side] and 5.58%
employee normal member contribution r'EE side"]) on a pre-tax basis pursuant to
IRS Code Section 414(h)(2). In the event the City Council adopts a
Compensation Plan for the Key and Management Group in which the contribution
toward retirement by the Key and Management Group is greater than nine
percent (9%), but not less than nine percent (9%), this Agreement shall be
deemed amended and Employee will be subject to the same formula or
percentage contribution as it applies to the Key and Management Group
pursuant to the Compensation Plan and for the same duration. In no event shall
Employee's contribution towards Employee's retirement costs be less than nine
percent (9%).
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees 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 her duties.
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
Page 5
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 pate 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 her employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of her resignation.
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 a majority
of the members of the City Council at a Regular Meeting 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 a lump sum severance benefit equal to six (6) months of
her 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.
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 at a Regular Meeting of the City Council,
Employee shall not be entitled to any additional compensation or payment,
including Severance. If the City Council intends to terminate with Cause, based
on a reason or reasons set forth in subpart 5 or 6, immediately below, the
Council shall first deliver to Employee a written Notice of Intent to Terminate,
stating the reason or reasons for the proposed termination, and providing a thirty
(30) day period for Employee to cure. If, in the City Council's independent
judgment, Employee cures the identified reason or reasons for Cause
termination, Employee shall not be terminated therefor. As used in this
Agreement, Cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City Council
made by the City Council as a body; and
6. Any grossly negligent action or inaction by Employee that materially and
adversely: (a) impedes or disrupts the operations of Employer or its
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.
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
A. Employee shall devote her full energies, interest, abilities and productive time to
the performance of this Agreement and utilize her 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 Hail, Monday through Friday during normal
business hours, subject to paragraph B of this Section, below.
B. Employee is authorized to work the 9180 schedule as defined in Section 2(RR)(1)
of the Employee Policy Manual and referred to in Miscellaneous Section (D) of
the Compensation Plan.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of her employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, 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 her 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.
Notwithstanding the foregoing, and consistent with Assembly Bill 1344 (Stats. 2011, ch.
692) adding Article 2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of
Division 2 of Title 5 of the Government Code, Employee shall be required, if convicted
of a crime involving an abuse of his office or position, to fully reimburse the City for: (1)
any paid leave salary offered by the City to the Employee; (2) any funds provided for the
legal criminal defense of the Employee; (3) any cash settlement related to the
termination that Employee may receive; and (4) any other payments received by
Employee from City that in any way relate to the foregoing.
SECTION 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 Manager
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
(2) EMPLOYEE: Leilani I. Brown
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,
his or her 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 her 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 she has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself of,
legal advice with respect to the terms and provisions of this Agreement.
[Signatures on Next Page.]
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
in
Nancy G�rd&r, Mayor
Date: 04-h7/
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
B'*' (-- - �
Y
Aaron C. Harp, City Attorney
Date: V d/ 3 1 11 �-
ATji*
By:
rris ,
Deputy City Cl rk
Date: 1-�--
EMPLOYEE
By: De0i
Leilani I. Brown
Date: ' I -
cs�W PO
0
u = s
Fp
Page 13
This General Release Agreement ("Agreement") is entered into by and between
LEILANI BROWN ("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 she has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
With her 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"), she 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 her through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether she 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 her as a result of her employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to her, 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 dated March _, 2011,
less applicable deductions, and shall provide the months of medical benefits as
provided in that same Section 7 ("Severance"). Employee acknowledges that the
Severance is in excess of all amounts due and owing her as a result of her 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
her employment with Employer which she 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 she does not know or suspect to exist in her favor.
Employee further acknowledges that she has read this General Release and that
she understands that this is a general release, and that she intends to be legally bound
by the same.
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 her/its reasonable attorneys' fees and costs.
[Signatures on Next Page.]
EXHIBIT A — Page 2
Dated 120 CITY OF NEWPORT BEACH
Dated: 20_
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
m
Aaron C. Harp, City Attorney
Date:
ATTEST:
m
Lillian Harris
Deputy City Clerk
Date:
m
Leilani Brown
EXHIBIT A — Page 3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is dated April P-, 2011, and is
entered into by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and Charter City ("Employer" or "City") and LEILANI I. BROWN
("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 Clerk under an Employment
Agreement effective from November 22, 2008 through November 22, 2010 ("Initial
Employment Agreement"), and under that certain First Amended Employment
Agreement dated March 9, 2010 ("First Amendment").
C. The Parties mutually agree that they intend that no break in service occur in
Employee's employment with City between the expiration of the Initial Employment
Agreement and the date 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
This Agreement shall be for an indefinite term, subject to termination as provided for in
this Agreement.
Page 1
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Clerk 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. Employer agrees to pay Employee at the rate of an annual base salary of
$110,829.82 (One hundred, ten thousand, eight hundred, twenty-nine dollars and
82/100 Dollars), subject to deduction and withholding of any and all sums
required for federal or state income tax, pension contributions, and all other
taxes, deductions or withholdings required by then current state, federal or local
law, prorated and paid on Employer's normal paydays for the City Manager, City
Attorney, City Clerk, and any Department Directors not covered by collective
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 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 Executive Management Employees or the manner
(but not the amount) by which Executive Management Employees are paid.
B. Employer, by the City Council, and Employee shall promptly set mutually -agreed
upon objectives for each year under this Agreement. Employer, by the City
Council, may elect to conduct an evaluation of Employee's performance at any
time or times during the period in which this Agreement remains in effect.
Page 2
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 her
employment service between the end of the Initial Employment Agreement and
this Agreement. All of Employee's accrued leave and other benefit balances
shall carry over, and her 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 27days (8.31 hours per Pay Period)
per calendar year until Employee reaches fifteen years of continuous service with
the City on December 15, 2012. Her maximum accrual is limited to 648.18 hours
until December 15, 2012. On December 15, 2012, Employee will have served
fifteen years of continuous service, and shall accumulate Flex Leave under the
Compensation Plan at the rate of 30 days per calendar year (9.23 hours per Pay
Period). Employee's maximum accrual rate from December 15, 2012 shall be
720.00 hours. The right to sell back accumulated Flex Leave shall be consistent
with the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to eighty (80) 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
Page 3
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. Phone Allowance. As of the date of this Agreement, the City provides Employee
with an allowance to cover the cost of internet service to allow Employee to
communicate remotely by electronic mail for City business. This arrangement
shall continue until such time as the City moves to a cell phone allowance. At
that time, Employee shall be entitled to the same phone allowance as provided to
any Executive Management member.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees 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 her duties.
Page 4
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 her employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of her resignation.
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 a majority
of the members of the City Council at a Regular Meeting 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 a lump sum severance benefit equal to six (6) months of
her 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.
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 at a Regular Meeting of the City Council,
Employee shall not be entitled to any additional compensation or payment,
Page 5
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 6
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
A. Employee shall devote her full energies, interest, abilities and productive time to
the performance of this Agreement and utilize her 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, subject to paragraph B of this Section, below.
B. Employee is authorized to work the 9/80 schedule as defined in Section 2(QQ)(1)
of the Employee Policy Manual and referred to in Miscellaneous Section (E) of
the Compensation Plan.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of her 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
Page 7
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, 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 her 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
Page 8
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.
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: Leilani I. Brown
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
Page 9
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,
his or her 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 her 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.
Page 10
F. Employee's Independent Review: Employee acknowledges that she has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that she 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 she has been advised to obtain, and has availed herself 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 Muni T)_
rporation
By: /—
Michael F. Henn, Mayor
Date:
APPROVED AS TO FORM:
By:
ne�e. Bea mp
AssirnstaneCey
Date:
ATTEST:
EMPLOYEE
LeilaWi I. Brown
Date: 4 - I%J" I
d Rr
By:
o� A
illiari arris
Deputy City Clerk �C/pip P
Date: q113111
It I
Page 11
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
LEILANI BROWN ("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 she has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with her 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"), she 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 her through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether she 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 her as a result of her employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to her, 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 dated March _, 2011,
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 her as a result of her 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
her employment with Employer which she 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 she does not know or suspect to exist in her favor.
Employee further acknowledges that she has read this General Release and that
she understands that this is a general release, and that she 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 her/its reasonable attorneys' fees and costs.
Dated , 20 CITY OF NEWPORT BEACH
Dated: , 20_
APPROVED AS TO FORM:
By:
yne . Beau I hamp
Assistant City (9 omey
Date:
ATTEST:
:-
Lillian Hams
Deputy City Clerk
Date:
Leilani Brown
EXHIBIT A — Page 3
FIRST AMENDED EMPLOYMENT AGREEMENT
WITH LEILANI BROWN
THIS FIRST AMENDED EMPLOYMENT AGREEMENT, is entered into as of this
day of March, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal
Corporation ("City"), and LEILANI BROWN ("Brown") and is made with reference to the
following:
RECITALS:
A. Effective November 22, 2008 City and Brown entered into an Employment
Agreement, hereinafter referred to as "Agreement," for employment as the City
Clerk for the City.
B. City Council conducted a six (6) month initial evaluation in accordance with the
terms of the Agreement. Based on Brown's performance Council approved a five
percent (5%) increase to her base compensation retroactive to May 22, 2009.
C. Effective June 29, 2009, and in accordance with the terms of the Agreement,
Brown received a four percent (4%) cost of living increase.
D. City Council conducted an annual evaluation in accordance with the terms of the
Agreement. Based on Brown's performance, on February 23, 2010, City Council
approved a retroactive increase in her base annual compensation effective
November 22, 2009.
E. City and Brown mutually desire to amend Agreement to reflect this increase in
base annual compensation, hereinafter referred to as "Amendment No. 1," as
provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1
BASE COMPENSATION
Brown's base annual compensation shall be increased retroactively from
November 22, 2009 by six thousand dollars and no/100 ($6,000.00) for a total
annual base compensation of One Hundred Ten Thousand Eight Hundred
Twenty Nine Dollars 82/100 ($110,829.82 ).
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in Agreement shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDEMENT
TO EMPLOYMENT AGREEMENT on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By: L D— -a -- .
David R. Hun ,
City Attorney
ATTEST:
Lilian Washington,
.Assistant City Clerk
'WUN
2
CITY OF NEWPORT BEACH
A Municipal Corporation
By: "Il --4
Keith D. Curry,
Mayor
EMPLOYEE: LEILANI BROWN
Leilani Brown
0
EMPLOYMENT AGREEMENT
•
This EMPLOYMENT AGREEMENT, (Agreement) entered into this 9th day of
September, 2008, by and between the CITY OF NEWPORT BEACH, a municipal
corporation (City), and LEILANI BROWN (Brown) is made with reference to the
following:
A. City has employed Brown as Deputy City Clerk since December 15, 1997
Brown's current annual salary is $72,300.
B. On September 9, 2008, Brown was reclassified to Assistant City Clerk
effective September 13, 2008, with the salary of $79,716.
C. LaVonne Harkless, City Clerk will be retiring on November 17, 2008. On
August 15, 2008 the City Council selected Brown to fill the City Clerk's
position effective November 22, 2008.
D. The Parties intend, through this Agreement, to specify the terms and
conditions of Brown's employment as City Clerk relevant to salary and
benefits.
SECTION 1: Employment as City Clerk.
A. Effective November 22, 2008, City shall employ Brown as City Clerk 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. Brown shall also perform other duties assigned by the City
Council, without additional compensation, so long as those duties are
related to matters of concern to the City of Newport Beach or cities
generally.
B. Brown shall devote at least eighty (80) hours every two (2) weeks to the
performance of her duties as City Clerk unless on authorized paid leave
and/or unpaid leave.
C. Brown shall be authorized to work the 9/80 schedule as defined in Section
QQ(1) of the City's Employee Policy Manual.
SECTION 2: Effective Date/Term.
This Agreement shall be effective as of November 22, 2008 and shall remain in effect until
November 22, 2010, or until amended by the Parties or terminated pursuant to Section 4
of this Agreement.
SECTION 3: Base Compensation.
A. City shall pay City Clerk an annual base salary of ninety-six thousand dollars
($96,000.) in twenty-six (26) equal installments paid at the same time as
other management employees of the City are paid. This Agreement shall be
deemed amended whenever the City Council adopts a resolution pertaining
to compensation or other terms and conditions of employment which are
covered by the terms of this Agreement.
B. City shall have the right to deduct or withhold from Brown's base
compensation any and all sums required for federal income and social
security taxes and all state or local taxes now applicable or that may
become applicable in the future. City may also deduct sums that Brown is
obligated to pay because of participation in plans or programs described in
Section 5 of this Agreement.
SECTION 4: Termination and Severance Pay.
A. Brown may terminate this Agreement by giving the City at least forty-five
(45) days prior written notice of termination.
B. City may terminate Brown, without cause, upon the affirmative votes of a
majority of the members of the City Council at any regular meeting,
provided, however, Brown 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. City shall furnish Brown with written notice
stating the Council's intention to terminate this Agreement at least thirty (30)
days prior to the effective date of termination.
C. Brown shall receive severance pay equal to one-half (1/2) of her annual
base compensation as of the date of termination by City, unless she is
terminated because of criminal conduct, malfeasance or a gross abuse of
discretion.
SECTION 5: Employee Benefits.
A. Brown shall accumulate flex leave at the same rate as other Department
Directors based on her years of service.
B. Brown shall receive the same health insurance, retirement benefits, and cost
of living adjustments as are available to other non -safety management
employees of the City.
C. Brown shall be entitled to participate in plans and programs available to the
City Attorney and City Manager of the City such as short term and long term
disability plans, life insurance plans, and deferred compensation plans.
2
0 0
D. The provisions of the then current Personnel Policies Resolution as well as
those provisions of the City Charter and Municipal Code that relate to the
terms and conditions of employment shall, except to the extent inconsistent
with the terms of this Agreement, apply to Brown as they are applied to other
management employees; provided, however, Brown shall not be entitled to
any compensation, or compensatory time for time worked in excess of the
normal work day or week.
E. Brown may undergo an annual physical examination and City shall
reimburse Brown for the actual cost of the examination up to a maximum of
one thousand dollars ($1,000.00).
F. Brown shall receive eighty (80) hours of Administrative Leave per calendar
year. Administrative Leave shall not accrue from year to year. She will
receive 48 hours upon appointment for 2008 and 80 hours on January 1st
annually thereafter. Brown shall not be entitled to accrue administrative
leave from year to year and shall not be entitled to any compensation, or
compensatory time off, or overtime.
G. This Agreement shall be deemed amended whenever the City Council
adopts a resolution changing the rate Brown accumulates paid leave or
alters employee benefits available to other non -safety management
employees of the City.
SECTION 6. Business Expenses.
City shall reimburse Brown for all reasonable business expenses actually incurred by
Brown in the performance of services pursuant to this Agreement.
SECTION 7. Meetings and Conference.
Brown shall, at City expense, be entitled to attend a reasonable number of local, state, and
national conferences relevant to her performance of services pursuant to this Agreement,
in an amount as approved in each annual budget.
SECTION 8. Evaluation.
The City Council shall conduct an initial evaluation of Brown's performance promptly
following the six (6) month anniversary of the effective date of this Agreement.
If, in the sole discretion of the City Council, Brown is rated as satisfactorily performing her
duties as City Clerk after the first six (6) months, then she will be entitled to up to
approximately a 5% adjustment to her base compensation. Promptly following Brown's
one year anniversary as City Cleric, the City Council shall evaluate Brown's performance,
and annually thereafter, with salary increases as warranted by her performance.
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SECTION 9. General Provisions.
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A. Brown shall serve at the pleasure of the City Council as specified in the
Newport Beach City Charter and may be terminated "at will' subject to the
procedural and financial requirements specified in this Agreement and/or
City ordinance.
B. This Agreement shall be binding upon, and inure to the benefit of, the
heirs, executors, and assigns of Brown.
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 deposited in the United States mail, registered or certified, with postage
prepaid and return receipt requested, and properly addressed.
D. This 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.
CITY CLERK
By: d �•V6Wltii
Leilani Brown
ATTEST:
LaVonne Harkless, City
APPROVED AS TO FORM:
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By: Co , /\ ,
Robin L. Clauson, City Attorney
Dated: 9 I) O 1 os
Dated: q1/0loy
Dated: CD Oe
f:\users\cat\shared\AG\em ployment\Leil an i BrownCo ntract9-2-08
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