HomeMy WebLinkAboutC-4358 - Employment Agreement, Amendment 1-3 and Restated Employment Agreements - City ManagerTHIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of November 25, 2014 ("Effective Date") and is entered into by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
Charter City ("Employer" or "City") and DAVID KIFF ("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 Manager since
September 12, 2009. Employee is currently employed under a Second Amended
and Restated Employment Agreement dated June 11, 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 and Notice of Non -Renewal
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 Manager 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
$246,000.00 (two hundred forty-six thousand dollars and no cents), 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
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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, by the City Council, and Employee may set mutually -agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
may elect to conduct an evaluation of Employee's performance at any time or
times during the period in which this Agreement remains in effect.
C. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except as
expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in his
employment service between the Employment Agreement and this Agreement.
All of Employee's accrued leave and other benefit balances shall carry over, and
his leave and benefit balances shall continue to accrue under the terms of
applicable City policies and this Agreement.
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 9.69 hours per Pay Period.
Employee's Maximum accrual for Flex Leave is limited to 400 (four hundred)
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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 $1,250 (one thousand two hundred fifty dollars).
F. Automobile Allowance. Employee's duties require him to be available and
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500 per
month as an automobile allowance so that Employee may respond to these
demands of City business.
G. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
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H. Amendment of Benefits. Employee's 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.
I. 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. Employer agrees to budget and pay for professional dues, membership and
subscriptions of Employee necessary for continuation and participation in the
International City/County Management Association (ICMA), Cal-ICMA, the
California City Manager's Foundation (CCMF), and state and national League of
Cities and such other organizations as Employer and Employee may agree from
time to time. Employer also agrees to pay the cost of a corporate surety bond as
contemplated by section 503 of the City Charter.
C. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, coach -class airfare (where applicable), ground transportation and
meals. Reasonable expenses will also include the reasonable and actual cost of
lodging for meetings outside of Orange County.
D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article 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
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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 his employment with Employer, subject only to
Employee providing forty-five (45) calendar days prior written notice to Employer
of the effective date of his 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 his then applicable base
salary, and shall provide six (6) months of medical benefits as provided under the
Compensation Plan beginning on the effective date of termination (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
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(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.
W.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including attendance at City Council meetings).
Employee's base salary includes compensation for all hours worked and Employee shall
be classified as an exempt employee for purposes of overtime and shall not be entitled
to any form of compensation for overtime. In recognition of the significant time
Employee will need to devote outside normal office hours to business activities of
Employer and the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at City Hall, Monday through Friday during normal
business hours.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
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,
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oral, or electronic statement to any member of the public, the press, or any City
employee concerning the Employee's termination except in the form of a joint
press release or statement, which is mutually agreeable to City and Employee.
The joint press release or statement shall not contain any text or information that
is disparaging to either Party. Either Party may verbally repeat the substance of
the joint press release or statement in response to any inquiry.
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
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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 Clerk
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: David Kiff
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
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Agreement. Such amendments shall be incorporated and made a part of this
Agreement. The foregoing notwithstanding, Employee acknowledges that,
except as expressly provided in this Agreement, his employment is subject to
Employer's generally applicable rules and policies pertaining to employment
matters, such as those addressing equal employment opportunity, sexual
harassment and violence in the workplace, as they currently or may in the future
exist, and his employment is, and will continue to be, at the will of the City
Council.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee in the same manner as
applied to other management employees, provided, however, in the event of a
conflict between the provisions of this Agreement and the City Charter, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement.
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
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effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this Agreement.
(Signatures on Following 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: If 2 S, / Ll
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By: -A
Aaron C. Harp, City Attorney
Date: ( ( / 15-
J / /_—(_
ATTEST:
M
Leilani Brown,
City Clerk
Date: 11. 19.1
EMPLOYEE,
An Individual
By:
Davi iff
Date: 11 1 2 J�l l�t
Page 14
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
DAVID KIFF ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the
following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with his legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to him through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether he signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee acknow-
ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of
all amounts that are due and owing to him as a result of his employment by Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to him, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the Third Amended and Restated Employment
Agreement effective November 25, 2014, less applicable deductions, and shall provide
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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
him as a result of his employment by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
his employment with Employer which he now has, or ever had, including but not limited
to any rights, claims, causes of action or damages arising under Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Family and Medical
Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the
Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family
Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and
Housing Act, any other federal, state, or local employment practice legislation, or any
federal or state common law, including wrongful discharge, breach of express or implied
contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which he does not know or suspect to exist in his favor.
Employee further acknowledges that he has read this General Release and that
he understands that this is a general release, and that he intends to be legally bound by
the same.
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4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover his/its reasonable attorneys' fees and costs.
Dated 20_ CITY OF NEWPORT BEACH
Dated: , 20_
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
In
Aaron C. Harp, City Attorney
Date:
ATTEST:
M
Leilani Brown,
City Clerk
Date:
EXHIBIT A — Page 3
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of June 11, 2013 ("Effective Date") and is entered
into by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and Charter City ("Employer" or "City") and DAVID KIFF ("Employee") an
1�7j 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.
S. Employee has been continuously employed by City as City Manager since
September 12, 2009. 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:
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SECTION 1: Term and Notice of Non -Renewal
This Agreement shall become effective June 11, 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 Manager 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
$231,750.00 (Two Hundred Thirty -One Thousand Seven Hundred Fifty 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
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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, by the City Council, and Employee may set mutually -agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
may elect to conduct an evaluation of Employee's performance at any time or
times during the period in which this Agreement remains in effect.
C. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except as
expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in his
employment service between the Employment Agreement and this Agreement.
All of Employee's accrued leave and other benefit balances shall carry over, and
his leave and benefit balances shall continue to accrue under the terms of
applicable City policies and this Agreement.
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 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.
Page 3
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 $1,250 (one thousand two hundred fifty dollars).
F. Automobile Allowance. Employee's duties require him to be available and
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500 per
month as an automobile allowance so that Employee may respond to these
demands of City business.
G. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
H. Amendment of Benefits. Employee's 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.
Page 4
1. PERS. From the Effective Date of this Agreement, Employee will pay 9% of
pensionable pay toward 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). Effective the pay period including
June 30, 2013, Employee shall contribute an additional .45% of pensionable pay
toward retirement costs, for a total contribution of 9.45%. Effective the pay period
including June 30, 2014, Employee shall contribute an additional 1.45% of
pensionable pay toward retirement costs, for a total contribution of 10,90%.
Effective the pay period including June 30, 2015, Employee shall contribute an
additional 1.45% of pensionable pay toward retirement costs, 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
Employers normal expense reimbursement procedures or such other procedure
as may be designated by the City Council. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. Employer agrees to budget and pay for professional dues, membership and
subscriptions of Employee necessary for continuation and participation in the
International City/County Management Association (ICMA), Cal-ICMA, the
California City Manager's Foundation (CCMF), and state and national League of
Cities and such other organizations as Employer and Employee may agree from
time to time. Employer also agrees to pay the cost of a corporate surety bond as
contemplated by section 503 of the City Charter.
Page 5
C. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States, For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, coach -class airfare (where applicable), ground transportation and
meals. Reasonable expenses will also include the reasonable and actual cost of
lodging for meetings outside of Orange County.
D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article 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 his employment with Employer, subject only to
Page 6
Employee providing forty-five (45) calendar days prior written notice to Employer
of the effective date of his 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 his then applicable base
salary, and shall provide six (6) months of medical benefits as provided under the
Compensation Plan beginning on the effective date of termination (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;
Page 7
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
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including attendance at City Council meetings).
Employee's base salary includes compensation for all hours worked and Employee shall
M.
be classified as an exempt employee for purposes of overtime and shall not be entitled
to any form of compensation for overtime. In recognition of the significant time
Employee will need to devote outside normal office hours to business activities of
Employer and the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at City Hall, Monday through Friday during normal
business hours.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
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.
Page 9
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 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
Page 10
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
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: David Kiff
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, his employment is subject to
Employer's generally applicable rules and policies pertaining to employment
matters, such as those addressing equal employment opportunity, sexual
harassment and violence in the workplace, as they currently or may in the future
Page 11
exist, and his employment is, and will continue to be, at the will of the City
Council.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee in the same manner as
applied to other management employees, provided, however, in the event of a
conflict between the provisions of this Agreement and the City Charter, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement,
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this Agreement.
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:
Keith Curry, Mayor
Date:
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By: A ""�- C -
Aaron C. Harp, City Attorney
Date: 6 z (l % ( 3
ATTEST:
By:
u� h&::�
Leilani Brown,
City Clerk
Date:
EMPLOYEE,
An Individual
David4<iff
Date:
Page 13
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
DAVID KIFF ("Employee") and CITY OF NEWPORT BEACH ("Employer'), in light of the
following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee,
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with his legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to him through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether he signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee acknow-
ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of
all amounts that are due and owing to him as a result of his employment by Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to him, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the Employment Agreement effective December 22,
2010, less applicable deductions, and shall provide the months of medical benefits as
EXHIBIT A — Page 1
provided in that same Section 7 ("Severance"). Employee acknowledges that the
Severance is in excess of all amounts due and owing him as a result of his employment
by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
his employment with Employer which he now has, or ever had, including but not limited
to any rights, claims, causes of action or damages arising under Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Family and Medical
Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the
Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family
Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and
Housing Act, any other federal, state, or local employment practice legislation, or any
federal or state common law, including wrongful discharge, breach of express or implied
contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which he does not know or suspect to exist in his favor.
Employee further acknowledges that he has read this General Release and that
he understands that this is a general release, and that he intends to be legally bound by
the same.
EXHIBIT A — Page 2
4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover his/its reasonable attorneys' fees and costs.
Dated 20— CITY OF NEWPORT BEACr.
Dated: , 20_
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
@0
Aaron C. Harp, City Attorney
ATTEST:
By:
Leilani Brown,
City Clerk
Date:
DAVID KIFF
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
made effective as of November it 2012 ("Effective Date") and is entered into by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
Charter City ("Employer" or "City") and DAVID KIFF ("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 Manager since
September 12, 2009. Employee is currently employed under an Employment
Agreement dated April 12, 2011 ("Employment Agreement"). The Employment
Agreement was subsequently amended pursuant to that certain Amendment No.
One to Employment Agreement Between the City of Newport Beach and David Kiff
dated September 27, 2011 ("Amendment One").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement and Amendment One, and that upon execution of this
Agreement, the Employment Agreement and Amendment One 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.
Page 1
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
SECTION 1: Tenn 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 Manager 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 at the rate of
$231,750.00 (Two Hundred Thirty -One Thousand Seven Hundred Fifty Dollars);
and (ii) a one-time merit payment in the amount of $25.96 (Twenty -Five Dollars
and Ninety -Six Cents) for each paid work day from January 1, 2012 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
Page 2
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 may set mutually -agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
may elect to conduct an evaluation of Employee's performance at any time or
times during the period in which this Agreement remains in effect.
C. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except as
expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in his
employment service between the Initial Employment Agreement and this
Agreement. All of Employee's accrued leave and other benefit balances shall
carry over, and his leave and benefit balances shall continue to accrue under the
terms of applicable City policies and this Agreement.
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 25 (twenty-five) days per calendar
year. His maximum accrual is limited to four hundred (400) hours. The right to
sell back accumulated Flex Leave shall be consistent with the Compensation
Wim
C. Administrative Leave. Employee shall 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
Page 3
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 one thousand dollars ($1,000.00).
E. Automobile Allowance. Employee's duties require him to be available and
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500 per
month as an automobile allowance so that Employee may respond to these
demands of City business.
G. Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any Executive Management member.
H. Amendment. Employee's 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.
1. PERS. Pursuant to a separate agreement, miscellaneous (non -safety) members
have agreed to have 3.42% of the employer retirement costs added to the
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
Page 4
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). 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. Employer agrees to budget and pay for professional dues, membership and
subscriptions of Employee necessary for continuation and participation in the
International City/County Management Association (ICMA), Cal-ICMA, the
California City Managers Foundation (CCMF), and state and national League of
Cities and such other organizations as Employer and Employee may agree from
time to time. Employer also agrees to pay the cost of a corporate surety bond as
contemplated by section 503 of the City Charter.
C. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
Page 5
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, coach -class airfare (where applicable), ground transportation and
meals. Reasonable expenses will also include the reasonable and actual cost of
lodging for meetings outside of Orange County.
D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed
by, and serves at the pleasure of, the City Council. Nothing in this Agreement
shall prevent, limit or otherwise interfere with the right of Employer to terminate
this Agreement and the employment of Employee at any time, with or without
Cause, and with or without notice. Employer shall pay Employee for all services
through the Effective Date of termination and Employee shall have no right to any
additional compensation or payment, except as provided in Section 7, Severance
and Benefit Payoff at Termination, and General Release Agreement, below.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer, subject only to
Employee providing forty-five (45) calendar days prior written notice to Employer
of the effective date of his resignation.
Page 6
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
his then applicable base salary, and shall provide six (6) months of medical
benefits as provided under the Compensation Plan beginning on the effective
date of termination.
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;
Page 7
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
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including attendance at City Council meetings).
Employee's base salary includes compensation for all hours worked and Employee shall
be classified as an exempt employee for purposes of overtime and shall not be entitled
to any form of compensation for overtime. In recognition of the significant time
Employee will need to devote outside normal office hours to business activities of
Page 8
Employer and the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at City Hall, Monday through Friday during normal
business hours.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
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 his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
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.
Page 10
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
cto City Clerk
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
(2) EMPLOYEE: David Kiff
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 employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Council,
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 he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this Agreement.
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
-7�
By:
Nancy Gar , Mayor
Date: _11//'� //y
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
o,no�- C _
By:
Aaron C. Harp, City Attorney
Date: 1613 9/ 1 Z
ATTEST:
c
By:
L.eilani I. Brown, Ci CI rk
Date:i 1127 I I ?-
Page 13
EMPLOYEE
By: 6
Davi iff
Date: << Ij) d ?mol Z
%;fFORW,
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
DAVID KIFF ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the
following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with his legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to him through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether he signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee
acknowledges that the Severance referenced in paragraph 2 of this Agreement is in
excess of all amounts that are due and owing to him as a result of his employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to him, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the Employment Agreement effective December 22,
2010, less applicable deductions, and shall provide the months of medical benefits as
EXHIBIT A — Page
provided in that same Section 7 ("Severance"). Employee acknowledges that the
Severance is in excess of all amounts due and owing him as a result of his employment
by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
his employment with Employer which he now has, or ever had, including but not limited
to any rights, claims, causes of action or damages arising under Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Family and Medical
Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the
Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family
Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and
Housing Act, any other federal, state, or local employment practice legislation, or any
federal or state common law, including wrongful discharge, breach of express or implied
contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which he does not know or suspect to exist in his favor.
Employee further acknowledges that he has read this General Release and that
he understands that this is a general release, and that he intends to be legally bound by
the same.
99EME13M
4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover his/its reasonable attorneys' fees and costs.
Dated 20— CITY OF NEWPORT BEACH
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
22
Aaron C. Harp, City Attorney
ATTEST:
10
Leilani Brown,
City Clerk
L�
0
DAVID KIFF
Az�. ,.
AMENDMENT NO. ONE TO
EMPLOYMENT AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH AND DAVID KIFF
THIS AMENDMENT NO. ONE TO EMPLOYMENT AGREEMENT ("Amendment
No. One"), is entered into as of this 27th day of September, 2011, by and between the
City of Newport Beach, a California Municipal Corporation and Charter City ("City" or
"Employer"), and David Kiff, an individual ("Employee") and is made with reference to
the following:
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. Pursuant to the Employment Agreement dated April 12, 2011 ("Employment
Agreement"), Employer hired Employee to serve as City Manager upon the terms
and conditions contained in the Employment Agreement;
C. Due to current fiscal conditions, Employer desires City employees to contribute to
the cost of employee pension benefits and accept reduced leave allowances; and
D. Employer and Employee mutually desire to reduce Employee's current benefits
to mirror those of the City Attorney.
NOW, THEREFORE, Employer and Employee acknowledge the receipt of
adequate consideration and mutually desire to amend the Employment Agreement and
agree as follows:
1. Section 4(B) of the Employment Agreement shall be amended to read as follows:
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 25 (twenty-five)
days per calendar year. His maximum accrual is limited to
four hundred (400) hours. The right to sell back
accumulated Flex Leave shall be consistent with the
Compensation Plan.
2. Section 4(C) of the Employment Agreement shall be amended to read as follows:
C. Administrative Leave. Employee shall 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,
1
there is no right to sell back any accumulated Administrative
Leave.
3. Section 4(D) of the Employment Agreement shall be amended to read as follows:
D. Additional Benefits. Employee shall receive the same
health insurance and retirement benefits, and be entitled to
participate in plans and programs such as short term and
long term disability plans, life insurance plans, and deferred
compensation plans, as are available 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.
4. Section 4(I) is added to the Employment Agreement to read as follows:
I. PERS. Employer shall make no contribution to
Employee's PERS share of retirement costs on behalf of
Employee. Employee shall, in addition to making the full
Employee contribution toward Employee's retirement costs
(eight percent (8%) of Employee's salary), make a one
percent (1%) of salary contribution to Employer through
payroll deduction as reimbursement toward Employer's
overall cost of providing retirement benefits.
5. Except as expressly modified herein, all other provisions, terms and covenants
set forth in the Employment Agreement shall remain unchanged and shall be in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One as of the date set forth above.
EMPLOYEE
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By. .,.._., (f ffz_
Aaron Harp, City Attorney
THE CITY OF NEWPORT BEACH, a Charter
City and Mu cipal Corporation
By: IiL
Michael F. Henn, Mayor
ATTEST:
By: 44i D.
Leilani Brown, City Clerk
E
N
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement') is made effective as of April ?
2011 and is entered into by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and Charter City ("Employer" or "City") and DAVID KIFF
("Employee") an individual, (sometimes collectively "the Parties").
1:7Xy11L1%'?
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 Manager under an Employment
Agreement effective from September 12, 2009 through September 11, 2011.
("Initial Employment Agreement'). The Initial Employment Agreement was
subsequently amended pursuant to that certain Amendment No. One to
Employment Agreement Between the City of Newport Beach and David Kiff dated
September 28, 2010 ("Amendment One").
C. The Parties mutually agree that they intend for this Employment Agreement to
supersede the Initial Employment Agreement and Amendment One, and that upon
execution of this Employment Agreement, the Initial Employment Agreement and
Amendment One shall have no force or effect.
D. The Parties have also entered into that certain Housing Assistance Agreement
Between the City of Newport Beach and David Kiff to Share Equity for the Real
Property Located at 378 23rd Street, Newport Beach, California dated October 13,
2009 ("Housing Assistance Agreement'). The Parties intend that the Housing
Assistance Agreement, as well as the Second Deed of Trust and Promissory Note
contemplated therein, shall remain in full force and effect. The Parties do not intend
for this Agreement to amend the terms of the Housing Assistance Agreement, the
Second Deed of Trust or the Promissory Note.
Page 1
E. 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 Manager 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
$225,000.00 (Two Hundred Twenty Thousand 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
Page 2
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 may set mutually -agreed upon
objectives for each year under this Agreement. Employer, by the City Council,
may elect to conduct an evaluation of Employee's performance at any time or
times during the period in which this Agreement remains in effect.
C. Employee's compensation as discussed under this Section is not tied to the
compensation of any other City employee or group of City employees, except as
expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in his
employment service between the Initial Employment Agreement and this
Agreement. All of Employee's accrued leave and other benefit balances shall
carry over, and his leave and benefit balances shall continue to accrue under the
terms of applicable City policies and this Agreement.
B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 27 days per calendar year. His
maximum accrual is limited to 1,000 hours. The right to sell back accumulated
Flex Leave shall be consistent with the Compensation Plan.
Page 3
C. Administrative Leave. Employee shall be entitled to one hundred and twenty
(120) hours of administrative leave per calendar year. Administrative leave will
not accrue from calendar year to calendar year and must be used or lost at the
conclusion of each calendar year. Consistent with the Compensation Plan, there
is no right to sell back any accumulated Administrative Leave.
D. Additional Benefits. Employee shall receive the same health insurance and
retirement benefits, and be entitled to participate in plans and programs such as
short term and long term disability plans, life insurance plans, and deferred
compensation plans, as are available to non-public safety management
employees of the City, as provided in the Compensation Plan. This Agreement
shall be deemed amended as to these benefits, and these benefits only,
whenever the City Council adopts a resolution or takes action changing these
benefits under the Compensation Plan.
E. Annual Physical Exam. Employee may undergo an annual physical examination
and City shall reimburse Employee for the actual cost of the examination up to a
maximum of one thousand dollars ($1,000.00).
F. Automobile Allowance. Employee's duties require him to be available and
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500per
month as an automobile allowance so that Employee may respond to these
demands of City business.
G. Phone Allowance. As of the date of this Employment Agreement, the City
provides Employee with a cell phone and cell phone service. That shall continue
until such time as the City moves to a phone allowance. At that time, Employee
shall be entitled to the same phone allowance as provided to any Executive
Management member.
Page 4
H. Amendment. Employee's 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.
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. Employer agrees to budget and pay for professional dues, membership and
subscriptions of Employee necessary for continuation and participation in the
International City/County Management Association (ICMA), Cal-ICMA, the
California City Manager's Foundation (CCMF), and state and national League of
Cities and such other organizations as Employer and Employee may agree from
time to time. Employer also agrees to reimburse Employee for the cost of a
corporate surety bond as contemplated by section 503 of the City Charter.
C. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, coach -class airfare (where applicable), ground transportation and
Page 5
meals. Reasonable expenses will also include the reasonable and actual cost of
lodging for meetings outside of Orange County.
D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed
by, and serves at the pleasure of, the City Council. Nothing in this Agreement
shall prevent, limit or otherwise interfere with the right of Employer to terminate
this Agreement and the employment of Employee at any time, with or without
Cause, and with or without notice. Employer shall pay Employee for all services
through the Effective Date of termination and Employee shall have no right to any
additional compensation or payment, except as provided in Section 7, Severance
and Benefit Payoff at Termination, and General Release Agreement, below.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer, subject only to
Employee's providing forty-five (45) calendar days prior written notice to
Employer of the effective date of his resignation.
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
Page 6
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
his then applicable base salary, and shall provide six (6) months of medical
benefits as provided under the Compensation Plan beginning on the Effective
Date of termination.
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 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.
Page 7
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
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including attendance at City Council meetings).
Employee's base salary includes compensation for all hours worked and Employee shall
be classified as an exempt employee for purposes of overtime and shall not be entitled
to any form of compensation for overtime. In recognition of the significant time
Employee will need to devote outside normal office hours to business activities of
Employer and the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at City Hall, Monday through Friday during normal
business hours.
SECTION 9: Confidentiality and Non -Disparagement
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
Page 8
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 his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
Page 9
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.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
(2) EMPLOYEE: David Kiff
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.
Page 10
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 employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Council.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee in the same manner as
Page 11
applied to other management employees, provided, however, in the event of a
conflict between the provisions of this Agreement and the City Charter, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement.
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH,
A Munici //al Corporation
By: l
Michael Henn, Mayor
Date:
APPROVED AS TO FORM:
I
/,POfynett0. Bedi'�hamp
!� Assistant City torney
Date:
Page 12
EMPLOYEE
By: & YAJ
Davi Kiff
Date: 41-L, 1 1)
UU14--39
d4m
Leilani Brown,
City Clerk
Date: '7.1�2+
Page 13
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
DAVID KIFF ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the
following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with his legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to him through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether he signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee
acknowledges that the Severance referenced in paragraph 2 of this Agreement is in
excess of all amounts that are due and owing to him as a result of his employment by
Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to him, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the Employment Agreement effective December 22,
2010, less applicable deductions, and shall provide the months of medical benefits as
EXHIBIT A — Page
provided in that same Section 7 ("Severance"). Employee acknowledges that the
Severance is in excess of all amounts due and owing him as a result of his employment
by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
his employment with Employer which he now has, or ever had, including but not limited
to any rights, claims, causes of action or damages arising under Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Family and Medical
Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the
Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family
Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and
Housing Act, any other federal, state, or local employment practice legislation, or any
federal or state common law, including wrongful discharge, breach of express or implied
contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which he does not know or suspect to exist in his favor.
Employee further acknowledges that he has read this General Release and that
he understands that this is a general release, and that he intends to be legally bound by
the same.
EXHIBIT A — Page 2
4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover his/its reasonable attorneys' fees and costs.
Dated , 20
Dated: , 20
APPROVED AS TO FORM:
By:
,*nett D) Be &
//Assists City A rney
Date:
ATTEST:
M
Leilani Brown,
City Clerk
Date:
CITY OF NEWPORT BEACH
M
DAVID KIFF
EXHIBIT A — Page 3
zf �
AMENDMENT NO. ONE TO EMPLOYMENT AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND DAVID KIFF
THIS AMENDMENT N PNE TO EMPLOYMENT AGREEMENT ("Amendment
One") is entered into this oZ day of September 2010 by and between the City of
Newport Beach, a California municipal corporation and Charter City ("City" or
"Employer") and David Kiff, an individual ("Kiff' or "Employee') and is made with
reference to the following:
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 City's Charter.
B. Pursuant to that Employment Agreement dated August 18, 2009 ("Agreement"),
Employer hired Employee to serve as City Manager upon the terms and
conditions contained in the Agreement.
C. The Parties acknowledge that Kiff is not required to establish residency in the
City under the Agreement, but that the City agreed to provide certain housing
assistance to Kiff if Kiff chose to do so, pursuant to the Housing Assistance
Agreement between the Parties dated October 13, 2009.
D. Kiff has purchased a residence in the City of Newport Beach and has been
actively and diligently pursuing its remodel.
E. The Parties hereto acknowledge that Kiff has used his best efforts to establish
his residency in the City as contemplated in Exhibit A to the Agreement,
however, the remodeling efforts are not yet complete despite Kiff's best efforts to
do so.
F. The Parties hereto desire to enter into this Amendment One to provide additional
time for Kiff to complete the remodel of his residence in Newport Beach and
establish residency in the City.
NOW, THEREFORE, City and Employee mutually desire to amend the agreement and
agree as follows:
1. Section 11 of the Agreement is hereby amended to provide that Employer shall
reimburse Employee for specific relocation expenses as defined therein, except that
such expenses shall be reimbursable to Employee by Employer no later than June 30,
2011.
2. Exhibit A to the Agreement is hereby amended to provide that Kiff shall have up
to and including December 31, 2010 to establish his residency in Newport Beach, which
the Parties hereto acknowledge shall satisfy Kiffs obligations to use best efforts to
establish said residency.
3. 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 Amendment No.
One as of the date set forth above.
EMPLOYEE
By: id Kiff
THE CITY OF NEWPORT BEACH,
a Charter City and Municipal Corporation
By:
Keith Curry, Mayor
CITY OF NEWPORT BEACH
ATTEST:
By: �&-' -0
Leilani I. Brown, City Clerk
CITY OF NEWPORT BEACH
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
1. nettev uc p, Assistant City Attorney
ITY OF NEWPO T BEACH
[END OF SIGNATURES]
2
�'qtuurlo
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of August a,
2009 and is entered into by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and Charter city, ("Employer" or "City") and DAVID KIFF,
("Employee") an individual.
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 since January 5, 1998 at which time he was
employed as Assistant to the City Manager.
C. Employee was reclassified to Deputy City Manager in September 1999 and then to
Assistant City Manager on April 20, 2001.
D. Per Section 500 of the City Charter, in making this selection, the City Council has
screened all qualified applicants and other qualified persons known by the Council
to be available.
E. The City Council believes Employee to be the best qualified on the basis of
executive and administrative qualifications, with special reference to the experience
and knowledge of accepted practice in respect to the duties of the office of City
Manager as set forth in the City Charter.
F. The City desires to employ Employee as City Manager and to enter into an
Agreement with Employee upon the terms and conditions in this Agreement.
G. Employee is willing to accept such employment on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
fnllnws-
Page 1 of 9
PION 1: Term
Unless sooner terminated, as provided in this Agreement, this Agreement shall remain
in full force and effect from September 12, 2009 ("Effective Date'), to and including
September 11, 2011, subject to renewal upon the mutual agreement of both parties.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as City Manager to exercise the powers and
authority and to perform the functions and duties specified in the Newport Beach City
Charter and 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
A. Effective September 12, 2009, Employer agrees to pay Employee an annual
base salary of $225,000 (Two Hundred Twenty -Five Thousand Dollars), subject
to deduction and withholding of any and all sums required for federal or state
income tax, social security tax and all other taxes, deductions or withholdings
required by then current state, federal or local law, prorated and paid on
Employer's normal paydays for other 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 the City Manager or the manner (but not the amount)
in which management employees are paid.
B. Employer, by the City Council, and Employee will promptly set mutually agreed
goals for the first twelve (12) months of this Agreement. Employer, by the City
Council, shall conduct an initial evaluation of Employee's performance promptly
following the six (6) month anniversary of the Effective Date of this Agreement,
with annual evaluations beginning at the one year anniversary of the Effective
Date of this Agreement.
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. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 27 days per year. As Employee is a
current employee of City, his current maximum accrual rate will be increased
from 648 hours to 1,000 hours effective September 12, 2009. The right to sell
back accumulated Flex Leave shall be consistent with the Compensation Plan.
B. Administrative Leave. Employee shall be entitled to one -hundred and twenty
(120) hours of administrative leave per calendar year. Administrative leave will
not accrue from calendar year to calendar year and must be used or lost at the
Page 2 of 9
conclusion of each calendar. Consistent with the Compensation Plan, there is no
right to sell back any accumulated Administrative Leave.
C. Additional Benefits. Employee shall receive the same health insurance and
retirement benefits, and be entitled to participate in plans and programs such as
short term and long term disability plans, life insurance plans, and deferred
compensation plans, as are available to non-public safety 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.
D. 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).
E. Automobile Allowance. Employee's duties require him to be available and
respond to demands of City business at all times and outside of regular business
hours, including weekends. Employer shall, therefore, pay to Employee $500 per
month as an automobile allowance so that Employee may respond to these
demands of City business.
F. Amendment. Employee's 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.
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. Employer agrees to budget and pay for professional dues, membership and
subscriptions of Employee necessary for continuation and participation in the
International City/County Management Association (ICMA), Cal-ICMA, the
California City Managers Foundation (CCMF), and state and national League of
Cities and such other organizations as Employer and Employee may agree from
time to time.
C. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, airfare (where applicable), ground transportation and meals.
Page 3 of 9
Reasonable expenses will also include the reasonable and actual cost of lodging
for meetings outside of Orange County.
D. The expenses to be budgeted and paid in this Section 5, Paragraphs A, B, and C
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Council. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Article V of the City Charter and Newport Beach Municipal Code
Chapter 2.08, 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. 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, below.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer, subject only to
Employee providing one hundred and twenty (120) calendar days prior written
notice to Employer.
SECTION 7: Severance and Benefit Payoff at Termination
A. If Employer terminates this Agreement (thereby terminating Employee's
Employment) without cause, as determined by the affirmative votes of majority of
the members of the City Council at any regular meeting as required by Section
506 of the City Charter, Employer shall provide Employee with forty-five (45)
calendar days written notice and shall pay Employee severance as follows:
1. If termination is effective on or before October 31, 2010, Employer shall
pay Employee a lump sum severance benefit equal to twelve (12) months
of his then applicable base salary, and provide twelve (12) months of
medical benefits as provided under the Compensation Plan beginning on
the Effective Date of termination.
2. If termination is effective from November 1, 2010 up to and including
September 10, 2011, Employer shall pay Employee a lump sum
severance benefit equal to nine (9) months of his then applicable base
salary, and provide nine (9) months of medical benefits as provided under
the Compensation Plan beginning on the Effective Date of termination.
3. If termination, including by non -renewal of this Agreement, is effective on
September 11, 2011 or any date thereafter, Employer shall pay Employee
a lump sum severance benefit equal to six (6) months of his then
applicable base salary, and provide six (6) months of medical benefits as
provided under the Compensation Plan beginning on the Effective Date of
termination.
Page 4 of 9
B. If Employer terminates this Agreement (thereby terminating Employee's
Employment) with cause, as determined by the affirmative votes of majority of
the members of the City Council at any regular or specially noticed meeting,
Employee shall not be entitled to any severance. As used in this Agreement,
cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Willful abandonment of duties;
4. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted policy decisions of the City Council
made by the City Council as a body; and
5. Any other intentional or grossly negligent action or inaction by Employee
that materially and substantially: (a) impedes or disrupts the operations of
Employer or its organizational units; (b) is detrimental to employee or
public safety; (c) violates properly established rules or procedures of
Employer causing a material and substantial adverse impact on Employer;
or (d) has a material and substantial adverse effect on Employer's
interests as clearly defined and delineated by properly established City
Council action taken by the Council as a body, policy, regulations,
ordinances, or Charter provisions of Employer.
C. Except as otherwise mutually agreed, any dispute as to whether severance is
excused under Section 7, Paragraph B, Sub -Paragraphs 3, 4 and 5, above, shall
be referred to binding arbitration before a single neutral arbitrator selected from a
list of seven (7) arbitrators requested from the California State Mediation and
Conciliation Service. Employer will strike the first name and the parties will
alternate striking names until one person is left who shall be designated as the
arbitrator. The arbitrator's decision will be final and binding with no right of
appeal.
D. Consistent with the provisions of Section 506 of the City Charter, in no event may
Employee be terminated within ninety (90) days after any municipal election for
the selection or recall of one or more members of the City Council.
E. If Employee terminates this Agreement (thereby terminating Employee's
Employment), Employee shall not be entitled to any severance.
F. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accrued
but unused administrative leave.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including attendance at City Council meetings).
Page 5 of 9
Employee's base salary includes compensation for all hours worked and Employee shall
be classified as an exempt employee for purposes of overtime and shall not be entitled
to any form of compensation for overtime. In recognition of the significant time
Employee will need to devote outside normal office hours to business activities of
Employer and the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at City Hall, Monday through Friday during normal
business hours.
SECTION 9: Confidentialitv and Non -Disparagement
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"), Such Confidential
information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City. All Confidential Information shall be promptly returned to
the City immediately upon the effective date of any severance of employment.
B. In the event the City terminates Employee with or without cause, the City and
Employee agree that no member of the City Council, the city management staff,
nor the Employee shall make any written, oral, or electronic statement to any
member of the public, the press, or any City employee concerning the
Employee's termination except in the form of a joint press release or statement,
which is mutually agreeable to City and Employee. The joint press release or
statement shall not contain any text or information that is disparaging to either
party. Either party may verbally repeat the substance of the joint press release
or statement in response to any inquiry.
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Moving Expenses
Employer shall pay to Employee up to $15,000 (Fifteen Thousand Dollars) to reimburse
Employee for specific relocation expenses actually incurred by Employee upon his
relocation of his residence to Newport. Beach should Employee elect to make such a
move. Reimbursement shall be payable no later than six months following the date of
close of escrow of Employee's purchase of a residence in Newport Beach, as more
specifically described in Section 11 herein, or Employee's receiving possession of real
property to be used as his personal residence through a lease with a term of at least
one year.
Page 6 of 9
SECTION 12: Housing Assistance
Employer recognizes and accepts it cannot require Employee to relocate his residence
to the City. Employer shall, however, provide Employee with housing assistance to
enable and encourage Employee to become a resident of Newport Beach substantially
under the terms more specifically provided in Exhibit A hereto. Nothing in this
Agreement is intended to require Employee to relocate his residence to the City.
SECTION 13: 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.
SECTION 14: 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 15: 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
With a courtesy copy to:
City Attorney
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
(2) EMPLOYEE: David Kiff
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 StatesPostal Service as provided by law:
Page 7 of 9
SECTION 16: 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 employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Council.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this agreement.
Page 8 of 9
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 Munic' I Corp tion
dward Selich, Mayor
Date:
APPROVED AS TO FORM
,
By:
-i')
David R. Hunt, CityAttorney
Date:
ATTEST:
� r
By:
Leilani rown,
City Clerk
C
EMPLOYEE
By: G-1
D id Kiff
Date: Ake l s , Tool
Attachments: Exhibit A — Housing Assistance
A09-00538.Approved Final CMR Agreement
Page 9 of 9
EXHIBIT A
HOUSING ASSISTANCE
Employer shall provide housing assistance to Employee consistent with the following
terms:
• Shared equity ownership generally consistent with past practice. Specifics to be
mutually agreed upon, but with the following general parameters to the extent
feasible:
• City equity contribution of up to $550,000
• Loan encumbrances cannot exceed 50% of purchase price
• The total of City equity contribution and mortgage loans cannot exceed the
purchase price
• City and Kiff to share in appreciation/depreciation of property value on a cost
basis in proportion to initial equity/loan contribution of the parties and reflective of
any quantified, documented personal resources that Kiff invests in remodeling or
improving the property after Kiffs purchase of the property. City must approve
any proposed remodel or improvements that are to be reimbursed pursuant to
the Housing Assistance provisions prior to their construction and agree in writing
to. their cost so as to avoid dispute over the issue in the future. The
improvements must be documented hard costs including materials and labor, but
shall not include soft costs such as personal efforts of Kiff or other owners. Kiff
shall have the burden of establishing the cost of all investments into the property
through appropriate documentation.
Kiff to assume 100% responsibility for debt service, maintenance, taxes and all
expenses associated with the residence
• Kiff to use best efforts to establish residency in Newport Beach within 12 months
of Effective Date of employment agreement
• City equity contribution (as adjusted for appreciation/depreciation) to be
repayable within 12 months of termination of employment or retirement
Employer and Employee shall take all reasonably necessary action in good faith in
order to reach mutual agreement on all other terms and conditions reasonably
•necessary to carry out the intent of these provisions. Nothing in this agreement,
however, shall be interpreted as a requirement that Employee relocate his residence to
the City.
Any dispute over the division of equity in property acquired pursuant this these
provisions shall be subject to binding arbitration as set out in Section 7, subsection C of
the Agreement.
Exhibit A.
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