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FROM
CITY OF
NEWPORT BEACH
City Council Staff Report
July 24, 2018
Agenda Item No. 14
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Dave Kiff, City Manager - 949-644-3001, dkiff@newportbeachca.gov
Barbara J. Salvini, Human Resources Director
949-644-3259, bsalvini@newportbeachca.gov
PREPARED BY: Barbara J. Salvini, Human Resources Director
PHONE: 949-644-3259
TITLE: First Amended and Restated Employment Agreement with Police
Chief Lewis
ABSTRACT:
The City Council previously adopted Resolution No. 2016-52, authorizing the City
Manager to execute an Employment Agreement between the City of Newport Beach and
Jon Lewis. The terms and condition of his employment are defined in his Employment
Agreement. Recently, the City Manager and Chief Lewis revisited the employment terms,
including adjustments to compensation and benefits.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Adopt Resolution No. 2018-56, A Resolution of the City Council of the City of Newport
Beach, California, Authorizing the City Manager to Execute the First Amended and
Restated Employment Agreement Between the City of Newport Beach and Jon Lewis
for Services of Police Chief.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this First Amended and
Restated Employment Agreement.
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First Amended and Restated Employment Agreement with Police Chief Lewis
July 24, 2018
Page 2
DISCUSSION:
The City of Newport Beach and Chief Lewis originally entered into an Employment
Agreement on April 12, 2016. As outlined in Attachment B, the term of the proposed First
Amended and Restated Agreement ("Agreement") is two years with automatic extensions
for one-year terms unless the City provides Chief Lewis with notice of non -renewal six (6)
months prior to contract expiration. In addition to the benefits provided to employees in
the Executive Management category of the unrepresented Key & Management Group,
the proposed Agreement also provides for the following changes from the original
Employment Agreement:
1. Compensation: The City agrees to pay Chief Lewis an annual base salary of
$233,734.03;
2. Adjustments to Compensation: Chief Lewis may receive increases in annual
compensation consistent with the increases provided for the Police Management
Association pursuant to its Memorandum of Understanding, as long as the
increases do not exceed the "Cost of Living" as defined by Government Code
Section 3511.1 or successor statute;
3. Holiday: Chief Lewis will take time off for holidays in the same manner as Executive
Management Employees ("Regular Holidays"). The City will not report Regular
Holidays as special compensation;
4. Deferred Compensation: On August 24, 2018, Chief Lewis shall receive a one-
time payment to his deferred compensation plan in the amount of one percent (1 %)
of his base salary.
Chief Lewis' benefits shall be tied to the benefits set forth in the prevailing Key &
Management Plan, except for those specific terms and conditions of his employment
outlined in his First Amended and Restated Employment Agreement.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
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First Amended and Restated Employment Agreement with Police Chief Lewis
July 24, 2018
Page 3
ATTACHMENTS:
Attachment A — Resolution No. 2018-56
Attachment B — First Amended and Restated Employment Agreement
Attachment C — Employment Agreement (redline)
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ATTACHMENT A
RESOLUTION NO. 2018-56
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE FIRST
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH AND JON LEWIS FOR SERVICES OF POLICE
CHIEF
WHEREAS, the City Council previously adopted Resolution 2016-52 authorizing
the City Manager to execute an Employment Agreement between the City of Newport
Beach ("City") and Jon Lewis ("Lewis") for Services of Police Chief;
WHEREAS, the City wishes to enter into a First Amended and Restated
Employment Agreement with Lewis, which is attached hereto as Exhibit "A" and
incorporated herein by this reference, which reflects the terms and conditions under which
the City and Lewis intend and desire to continue Lewis' employment ("Restated
Agreement");
WHEREAS, under the Restated Agreement, Lewis' base annual salary shall be
$233,734.03 (TWO HUNDRED THIRTY-THREE THOUSAND SEVEN HUNDRED
THIRTY-FOUR DOLLARS and 03/100); Lewis shall receive periodic increases in his base
salary in accordance with the law; the City shall report the value of uniforms provided to
Lewis at $1,350.00 (ONE THOUSAND THREE HUNDRED FIFTY DOLLARS AND
00/100) per year as special compensation in accordance with CaIPERS regulations,
however, the City shall have no liability should CaIPERS determine that the uniform
allowance does not qualify as special compensation; Lewis shall receive a one-time
payment to Lewis' deferred compensation plan in the amount of one percent (11%) of
Lewis' base salary; and Lewis shall receive other benefits including, but not limited to,
cafeteria allowances, paid leaves, disability and life insurance, which are tied to the terms
of the prevailing Key and Management Compensation Plan; and
WHEREAS, by adopting this Resolution, the City Council intends to approve and
authorize the City Manager to execute the Restated Agreement with Lewis.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council does hereby authorize the City Manager to execute
the attached Restated Agreement between the City of Newport Beach and Lewis.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
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Resolution No. 2018 -
Page 2 of 2
Section 3: If any section, subsection, sentence, clause or phrase of this resolution
is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this resolution. The City Council
hereby declares that it would have passed this resolution, and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 4: The City Council finds the adoption of this resolution is not subject to
the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 24th day of July, 2018.
Marshall "Duffy" Duffield
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFI E
A C ,
Aaron C. Harp 7.4•{$
City Attorney
Attachment(s): First Amended and Restated Employment Agreement
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ATTACHMENT B
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of July 24, 2018 and is entered into by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and Charter city, ("Employer" or
"City") and JON LEWIS, ("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 Chief of Police pursuant to an
Employment Agreement dated April 12, 2016 ("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, any prior
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 and that there are no other agreements between them oral, written or
implied.
E. 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
follows..
SECTION 1: Term
This Agreement shall become effective July 24, 2018 ("Effective Date"). Subject to City's
right to terminate Employee's employment at any time, as provided for in this Agreement,
the initial term of this Agreement is two (2) years from the Effective Date ("Initial Term").
This Agreement shall automatically be extended for an additional twelve (12) month
period unless City notifies Employee of its intent not to extend the Agreement six (6)
months prior to expiration of the Initial Term or any subsequent automatic extension of
the Initial Term. City's election not to extend this Agreement shall not entitle Employee
to Severance pursuant to Section 8 of this Agreement.
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SECTION 2: No Break in Service
Employee has been continuously employed by the City since July 4, 1991. Employee's
continued employment as Chief of Police shall not constitute a break in service.
SECTION 3. Duties and Authority
Employer agrees to employ Employee as Chief of Police to exercise the powers and
authority and to perform the functions and duties of that position as specified in the
Newport Beach City Charter and Newport Beach Municipal Code ("NBMC") and all
relevant resolutions, rules, regulations, procedures, and federal and state codes, as they
currently or may in the future exist, specifically including but not limited to those set forth
in the "Police Chief" job description attached hereto as Exhibit A and incorporated herein
by this reference. Employee shall exercise such power and authority and perform such
other functions and duties, not inconsistent with this Agreement, as Employer, by the City
Manager, may legally assign.
SECTION 4: Compensation
A. Base Salary. Employer agrees to pay Employee an annual base salary of
$233,734.03 (TWO HUNDRED THIRTY-THREE THOUSAND SEVEN HUNDRED
THIRTY-FOUR DOLLARS and 03/100) ("Base Salary"), 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"). Employee shall be paid on a pro -rated basis bi-weekly at the same
time as other employees of the City are paid. Employer shall also deduct sums
Employee is obligated to pay because of participation in plans or programs
described in Section 5 of this Agreement. The annual Base Salary of Employee is
within the approved salary range adopted by resolution of the City Council.
B. Adjustments to Compensation. At the time of any increase in compensation to the
base salary that the Newport Beach Police Management Association ("NBPMA")
receives pursuant to an approved Memorandum of Understanding ("MOU")
between the NBPMA and the City, Employee shall receive a Base Salary increase
in compensation equal to the lesser of: (1) the salary adjustment(s) (percentage
increase(s)) provided to unit members as set forth in the MOU between the
NBPMA and the City; or (2) a cost of living adjustment based on an increase in the
"Cost of Living" as defined Government Code Section 3511.1, as it currently exists
or may be modified in the future.
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The cost of living adjustment will be calculated by comparing the last published
index number that is closest in time to the date the adjustment in compensation is
to be made, and the corresponding index number for one year earlier.'
For example, if NBPMA members receive a 1.0% increase in base salary effective
the pay period including July 1, 2017, then, if on July 1, 2017, the Cost of Living
as defined in Government Code Section 3511. 1, or successor statute, exceeds
1.0%, Employee would receive a 1.0% increase to the Base Salary. If on July 1,
2017, the Cost of Living as defined in Government Code Section 3511.1, or
successor statute, is less than 1.0%, Employee would receive an increase to the
Base Salary equal to the Cost of Living. In this example, the cost of living
adjustment would be calculated by comparing the June 2017 index number to the
June 2016 index number.
City and Employee expressly agree that any adjustment in compensation as
provided for in this Section shall not exceed the approved salary range adopted by
resolution of the City Council.
C. Uniform Allowance. As permissible by law and subject to the provisions and
limitations under the California Public Employees Retirement Law, the City shall
report the value of provided uniforms at One Thousand, Three Hundred Fifty
Dollars ($1,350.00) per year as special compensation. The Parties agree the
reported value of uniforms is intended to reflect clothing such as pants, shirts,
I ackets, and related attire and excludes health and safety related equipment.
Employee agrees and understands that an increase in the uniform allowance will
require an amendment to the Agreement for CalPERS to consider a uniform
allowance as special compensation. If CalPERS does not agree that the original
uniform allowance or any increased allowance qualifies as special compensation,
then the City shall have no liability in this regard, no duty to appeal this
determination on Employee's behalf, and no duty to represent Employee in
proceedings related to said determination.
D. Evaluations. Employer, by the City Manager, shall conduct annual evaluations on
or about the anniversary of the Effective Date of this Agreement or consistent with
that of other Executive Management Employees.
SECTION 5: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan ("Compensation Plan"), Executive
Management category, Years of Continuous Service, 15 and over, at the rate of
Nine and Sixty -Nine Hundredths (9.69) hours per pay period. The amount of
1(A - B)/B * 100 = i
A = Most recent index,
B = Corresponding index for one year earlier,
i = Cost of living adjustment, in percent.
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Employee's accrued Flex Leave may not exceed a total of Seven Hundred Fifty -
Five and Eighty -Two Hundredths (755.82) hours, and no Flex Leave shall further
accrue beyond the maximum total of Seven Hundred Fifty -Five and Eighty -Two
Hundredths (755.82) hours.
The right to sell back accumulated Flex Leave shall be consistent with the "Leave
Sellback" provision of the Compensation Plan.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan in regards to: (i) the amount of Flex
Leave accrued per pay period; (ii) the maximum allowable balance of Flex Hours
that can be accrued; (iii) provisions related to the use of Flex Leave to provide
dependent care; or (iv) Flex Leave Sellback.
B. Administrative Leave. Employee shall be entitled to administrative leave hours, if
any, in the sole discretion of the City Manager, up to a maximum of eighty (80)
hours per calendar year. Administrative leave hours, if any, shall be credited to
Employee the first pay period in January of each calendar year. Administrative
leave accrual shall be capped at eighty (80) hours. Consistent with the
Compensation Plan, there is no right to sell back any accumulated Administrative
Leave.
C. Holidays. Employee will take time -off for holidays in the same manner as
Executive Management Employees ("Regular Holidays"). The City will not report
Regular Holidays as special compensation.
D. Other Leaves. Employee shall be entitled to the same Jury Leave, Bereavement
Leave, Worker's Compensation Leave, and Medical Treatment for Industrial
Injuries Leave as received Executive Management Employees of the City, as
provided in the Compensation Plan and Employee Policy Manual ("EPM"). This
Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan or EPM in regards to these leaves.
E. Other Benefits. Unless otherwise provided in this Agreement, Employee shall
receive the same benefits as are available to Executive Management Employees
under the Compensation Plan and/or EPM, including cafeteria benefits, LIUNA
Supplemental Pension, IRS Section 125 Flexible Spending Accounts, short term
and long-term disability plans, life insurance plans, and deferred compensation
plans. This Agreement shall be deemed amended whenever the City Council
adopts a resolution or takes action changing these benefits under the
Compensation Plan and/or EPM.
F. Retirement. Employee shall be eligible for the "3% at 50" retirement formula (i.e.
the same retirement formula set forth in Section 4 (D) (1) of the "Retirement
Benefits" and Tier 1 ("Legacy") portion of the current NBPMA MOU. Employee
shall contribute the full statutory member contribution, equal to Nine Percent (9%)
of pensionable compensation, plus an additional Five and Sixth Tenths Percent
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(5.6%) of pensionable compensation (of employer share) towards retirement costs
as permitted under Government Code Section 20516, for a total contribution of
Fourteen and Six Tenths (14.6%). If the City Council enters into a MOU between
the City and NBPMA which provides for the retirement contributions for members
of the NBPMA in excess of 14.6%, this Agreement shall be deemed amended and
Employee shall be subject to the same formula percentage contribution as it is
applied to the members of the NBPMA and for the same duration.
G. Annual Physical Exam. Employee may undergo an annual physical examination
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of One Thousand Dollars
($1,000.00).
H. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee with
a vehicle that may be used for City -related business purposes. City anticipates
that the vehicle provided to Employee may be a Chevy Tahoe, but the make and
model of the vehicle shall remain in the City's sole discretion. City shall pay for
reasonable maintenance of the vehicle and gasoline. It is contemplated by the
parties that Employee will use the vehicle principally for City -related business,
however, to the extent that Employee uses the vehicle for any incidental personal
business, Employee shall pay for gasoline for all such personal use.
Phone Allowance. Employee shall be entitled to the same phone allowance as
provided to any of the Executive Management Employees.
J. Deferred Compensation. Deferred Compensation. On August 24, 2018, Employee
shall receive one percent (1%) of Employee's Base Salary in the form of an
Employer paid deferred compensation contribution to Employer's approved
deferred compensation plan. This payment shall be a one-time payment and non-
recurring.
K. Key and Management Group, Executive Management Category. Except as
expressly provided herein, Employee shall be treated as a member of the City's
Key and Management Group, Executive Management category. As such, the
benefits, terms and conditions of the Compensation Plan shall apply to Employee
as provided more specifically above, provided however, in the event of a conflict
between the provisions of this Agreement and the Compensation Plan, this
Agreement shall prevail.
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SECTION 6: 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 either to 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 Manager. 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. Consistent with Employer's normal expense reimbursement procedures or such
other procedure as may be designated by the City Manager, 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. Reasonable expenses will also include the reasonable
and actual cost of lodging for meetings outside of Orange County.
C. The expenses to be budgeted and paid in this Section 6 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
Manager. 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 7: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and Newport Beach Municipal
Code Chapter 2.12.020, Employee is appointed by, and serves at the pleasure of,
the City Manager. 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 8, below. Nothing herein shall be construed to limit the rights and
obligations of City and Employee provided in the Public Safety Officers Procedural
Bill of Rights Act, codified at Government Code Section 3300, et seq. (POBRA).
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer, provided that
Employee provides sixty (60) day's prior written notice to Employer of the effective
date of his resignation. Upon the effective date of resignation, Employee forfeits all
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compensation and benefits owing for the remainder of the term of this Agreement,
as well as any potential "Severance" pay per Section 8 below
SECTION 8: Severance and Benefit Payoff at Termination
A. Termination without cause. By providing Employee at least fourteen (14) calendar
days' prior written notice thereof, the City may terminate Employee without cause
but rather based upon management reasons such as implementing the City's goals
or policies, including but not limited to: (i) change of administration, or (ii)
incompatibility of management styles. In the event Employee is terminated without
cause, Employee expressly agrees that he shall not be entitled to any Severance
pay as the result of the termination of this Agreement except as provided in this
Section 8(A). If Employer terminates Employee without cause, and if Employee
signs, delivers to the City, and does not revoke, the Agreement of Separation,
Severance and General Release in the form attached hereto as Exhibit B, then
Employer shall pay Employee a lump sum benefit equal to six (6) months of his
then applicable Base Salary, and six (6) months of medical coverage as provided
under the Compensation Plan and/or EPM as long as Employee is already enrolled
and receiving medical coverage through the City medical benefits plan at the time
of termination.
In accordance with Government Code Section 53260 (a), in no event shall
Employee receive a cash settlement that is greater than the monthly Base Salary
of Employee multiplied by the number of months left on the unexpired term of the
Agreement.
The lump sum payment described in this Section 8 (A) shall be referred to herein
as "Severance".
In order to comply with the requirements of California Government Code section
3304(c), termination by the City Manager for a reason other than cause shall be
conducted in accordance with the following procedures:
The City reserves the right to place Employee on paid administrative leave
for all or a portion of the fourteen (14) day written notice period provided
under this Section 8A.
2. Employee may request to appear before the City Council prior to the
effective date of the termination to challenge the reasons for the termination
or to raise mitigating circumstances regarding the termination but in such
event would waive any right to Severance pay under this Section 8(A).
B. Termination with cause. If Employer terminates this Agreement (thereby
terminating Employee's Employment) with cause, as determined by the City
Manager, Employee shall not be entitled to any Severance. As used in this
Agreement, cause shall mean any of the following:
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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. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted direction of the City Manager or the policy
decisions of the City Council made by the City Council as a body; and/or
6. 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.
Within five (5) days of receipt of written notice of termination for cause under this
Section 8(B), Employee may submit a request in writing to the City Manager for an
administrative appeal. Such appeal shall not prohibit or otherwise delay the
termination of Employee prior to the administrative appeal. Failure to timely file
such a request shall be deemed a waiver of the right to do so.
Upon Employee's written appeal request, the City Manager shall appoint an
independent hearing officer to conduct an administrative hearing and issue an
advisory decision, which shall then be reviewed and considered and either
adopted, modified or rejected by City Council. Both the Employee and the City
and their respective representatives, if any, shall make reasonable efforts to set
an administrative appeal hearing date within thirty (30) days from the City
Manager's receipt of the written appeal request.
At the administrative appeal hearing, the independent hearing officer shall be
presented with both the information and documents on which the City based its
decision to terminate as well as any information and documents on which the City
based its decision to terminate for cause as well as any information and
documentation that the Employee chooses to submit to challenge the City's
information and documents to raise mitigating circumstances for consideration by
the independent hearing officer.
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Within thirty (30) days of completing the hearing, the independent hearing officer
shall issue an advisory decision in writing to the City Council determining whether
Employee was properly terminated and whether there was sufficient "cause" to
justify not paying Severance under the terms of this Agreement, unless Severance
was already tendered. Following City Council's review and consideration of the
advisory decision, Employee shall be notified in writing as to whether the advisory
decision will be upheld, modified or rescinded.
C. If Employee resigns or otherwise terminates this Agreement (thereby terminating
Employee's Employment) or if this Agreement is not renewed as provided in
Section 1, Employee shall not be entitled to any Severance.
D. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave and Administrative Leave. Unused Sick Leave will
be compensated consistent with the EPM provision regarding Payment for Sick
Leave upon Termination as amended from time to time or superseded.
SECTION 9: 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 include time
outside normal office hours (including occasional as -needed 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 the Police Department during normal business hours, Monday through
Friday.
SECTION 10: Confidentiality
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
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consent of City. All Confidential Information shall be promptly returned to the City
immediately upon the effective date of any severance of employment.
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
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 10 shall survive the
termination of this Agreement.
SECTION 11: 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 12: Indemnification
To the extent mandated by the California Government Code, the City shall defend, hold
harmless, and indemnify Employee against any tort, professional liability, claim or
demand, or other legal action arising out of an alleged act or omission occurring in the
performance of Employee's services under this Agreement. This section shall not apply
to any intentional tort or crime committed by Employee, to any action outside the course
and scope of the services provided by Employee under this Agreement, or any other
intentional or malicious conduct or gross negligence of Employee.
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 13: 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 1 10
14-15
SECTION 14: 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
With a courtesy copy to:
City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Jon Lewis
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 15: 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, which amendment shall require City Council approval.
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 Manager.
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.
Page 1 11
14-16
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and
in accordance with the laws of the State of California and all applicable City Charter
provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable, the
remainder of this Agreement shall nevertheless remain in full force and effect. If
any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. In the event of a conflict between the
provisions of this Agreement and the City Charter, or this Agreement and the
NBMC, the City Charter or the NBMC shall prevail over this Agreement. All other
City personnel ordinances, resolutions, rules, and policies shall apply to Employee
in the same manner as applied to other Executive Management Employees.
F. Employee's Independent Review: Employee acknowledges that 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.
[SIGNATURES ON FOLLOWING PAGE]
Page 1 12
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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 California
municipal corporation
Date:
in
Dave Kiff
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7 / 5 / 1 '�'
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
EMPLOYEE:
JON LEWIS, an individual
Date: -710/9
By:
Le is
Attachments: Exhibit A - Police Chief Job Description
Exhibit B - Agreement of Separation, Severance and General Release
Page 1 13
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AN M--9�1
14-19
City of Newport Beach - Class Specification Bulletin
CITY OF NEWPORT BEACH
Established Date: Mar 2, 2010
Revision Date: Dec 8, 2015
DEFINITION:
POLICE CHIEF
Bargaining Unit: Key & Management - Department Director
Safety
SALARY RANGE
$77.32 - $115.96 Hourly
$6,185.60 - $9,276.80 Biweekly
$13,402.13 - $20,099.73 Monthly
$160,825.60 - $241,196.80 Annually
Page 1 of 3
Class Code:
700002B
Under direction of the City Manager, the Police Chief is responsible for the administration, development, and advancement of
the City's full service Police Department; to oversee and implement all programs and procedures related to crime prevention,
law enforcement, and related policing services; to serve as a member of the City Manager's Executive Management Team; and
to provide highly responsible and professional staff assistance to the City Manager and City Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative direction from the City Manager. Exercises
general supervision over the entire department, and direct supervision over division managers and professional/administrative
support staff.
CLASSIFICATION CHARACTERISTICS: The Police Chief is expected to exercise independent judgment, wisdom, and
innovation in establishing and administering all Police Department operations, consistent with the City Manager's expectations
and with concern for the entire City government organization. As an inspiring leader, the Police Chief must demonstrate
integrity and promote ethical standards within the department, advocate collaboration with the community, and be a team
member with the City organization. The Police Chief must be politically astute, but apolitical.
ESSENTIAL DUTIES:
The following essential functions are typical for this classification. Incumbents may not perform all of the listed functions and/or
may be required to perform additional or different functions from those below, to address business needs and changing
business practices:
• Advancing the interests of the department and the City, plans, directs, and oversees a variety of programs designed for the
maintenance of law and order and protection of life and property within the City of Newport Beach; develops comprehensive
plans to satisfy needs for departmental services to ensure the highest possible quality of life for residents and visitors;
• Ensuring the optimum and most efficient and effective use of staffing and resources, administers the overall operation of a full
service police department, including hiring, personnel administration, office operations, budgeting, and community relations;
serves as a member of the City's Executive Management Team and collaborates with other departments to resolve city-wide
problems;
• Demonstrating a strong working knowledge of the legal system, confers with legal advisors and City officials regarding law
enforcement issues; provides professional and technical advice and assistance to the City Manager and City Council on matters
related to law enforcement services; represents the City as a witness in legal proceedings;
• Exhibiting exceptional communication skills, prepares and presents staff reports and related materials for City Council or
public response; resolves issues raised by City Council members, community groups, employee associations, and the public;
advocates the City's position in negotiations with various regulatory agencies to satisfy requirements;
• Building cohesive and collaborative departmental working relationships, plans, organizes, selects and supervises the work of
departmental staff; establishes accountability throughout the department; promotes employee development through staff
training and succession planning; ensures consistent application of City personnel policies and employee agreements;
• Demonstrating stewardship of public funds, directs the preparation and administration of the Police Department budget;
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City of Newport Beach - Class Specification Bulletin
Page 2 of 3
participates in the forecast of revenue, expenses and additional funds needed; guides subordinate managers in developing and
administering fiscally responsible budgets; carries out police functions in the most cost effective ways;
• Promoting a strong community policing program, establishes and maintains collaborative working relationships with property
owners, community groups, business districts, and the public; represents the Police Department and the City at community and
civic events;
• Regularly and predictably attend work; and
• Perform related duties as assigned.
QUALIFICATIONS:
To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below
are representative of the knowledge, skill, and/or ability required.
Knowledge of:
Advanced principles and practices of crime prevention and law enforcement, including criminal investigation and identification,
patrol, traffic control, animal control, records management, care and custody of persons and property and environmental
protection;
Principles and practices of organization, administration and personnel management, and leadership of a law enforcement
agency;
Principles and techniques of municipal budget development and administration;
Applicable Federal, State and local laws, ordinances, codes and regulations;
Principles of supervision, training and performance evaluation;
Current technological and communication equipment and software applicable to the delivery of departmental services to
internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
Ability to:
Effectively direct, plan and organize the activities of a comprehensive city-wide full service police department;
Critically analyze problems, identify alternative solutions, and implement recommendations in support of goals;
Understand the needs of a tourism -based community and its impact on public safety;
Promote collaboration and innovation;
Provide a stabilizing influence during periods of change;
Weigh risks and consequences and make clear decisions;
Equitably interpret and apply City policies, procedures, rules and regulations;
Diffuse conflict and gain cooperation through discussion and persuasion;
Motivate, select, supervise, and evaluate personnel;
Promote fiscal responsibility in administering a departmental budget;
Develop and maintain effective partnerships with community groups;
Build loyalty within the organization and advocate accessibility and responsiveness to the community;
Effectively and persuasively communicate, both orally and in writing; and
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City of Newport Beach - Class Specification Bulletin Page 3 of 3
Establish and maintain cooperative working relationships with those contacted in the course of work.
EXPERIENCE & TRAINING AND LICENSE/CERTIFICATE:
A combination of experience and education that would likely provide the required knowledge and abilities may be qualifying. A
typical way to obtain the knowledge and abilities would be:
Experience: Seven years of increasingly responsible managerial and supervisory law enforcement experience, including having
achieved the rank of Captain, Deputy/Assistant Chief or above.
Educaiton: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration,
business administration, or a related field from an accredited college or university. A Master's degree is desirable.
License/Certificate: Due to the performance of some field duties which require the operation of a personal or City vehicle, a
valid and appropriate California driver's license and an acceptable driving record are required.
Possession of P.O.S.T. Management Certificate at time of appointment.
Possession of P.O.S.T Executive Certificate desirable.
Completion of Federal Bureau of Investigation's National Academy is desirable.
Additional Requirement: Prior to employment, the prospective candidate must successfully complete a thorough background
review, including being fingerprinted by Newport Beach Police Department.
Disaster Service Worker: In accordance with Government Code Section 3100, City of Newport Beach Employees, in the
event of a disaster, are considered disaster service workers and may be asked to respond accordingly.
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Exhibit B
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AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
1. PARTIES
This Agreement of Separation, Severance, and General Release (hereinafter
referred to as the "AGREEMENT") is entered into by and between the City of Newport
Beach, a charter city and municipal corporation (hereinafter referred to as "THE CITY"), and
JON LEWIS, an individual (hereinafter referred to as "EMPLOYEE").
2. RECITALS
2.1. EMPLOYEE was hired by THE CITY as an at -will chief of police
effective April 12, 2016 serving at the pleasure of the City Manager of THE CITY pursuant
to a written contract, a copy of which is attached hereto as Exhibit "A" ("THE CONTRACT").
EMPLOYEE is currently years old.
2.2. THE CITY and EMPLOYEE desire that EMPLOYEE resign and enter
into a severance agreement whereby EMPLOYEE receives severance compensation in
exchange for executing a general release and waiver of any and all claims that EMPLOYEE
may have against THE CITY, including but not limited to its elected and non -elected officials,
employees, attorneys, and agents. Accordingly, the parties hereto intend by this
AGREEMENT to mutually conclude any and all employment relationships between THE
CITY and EMPLOYEE by means of EMPLOYEE's voluntary separation as of ,
This AGREEMENT sets forth the full and complete terms and conditions concluding
EMPLOYEE's employment relationship with the CITY and any obligations related thereto,
including any provided under THE CONTRACT.
2.3 In accordance with this AGREEMENT and with applicable state and
federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of
EMPLOYEE's post -employment rights, including but not limited to, EMPLOYEE's rights
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the
Employee Retirement Income Security Act of 1974 ("ERISA"), and the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA" ).
3. CONSIDERATION
3.1 EMPLOYEE shall receive payment to him at the time of his voluntary
separation all earned salary, accrued fringe benefits as detailed in THE CONTRACT, and/or
all other wage compensation/benefits owed to EMPLOYEE upon separation of employment,
as required by law or THE CONTRACT or any other agreement with THE CITY.
3.2. In exchange for the waivers and releases set forth herein, THE CITY
shall also cause to be paid to EMPLOYEE an additional compensatory payment by means
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of severance, settlement and release in the form of a lump sum amount of
and _ cents ($ .00), as set forth in THE
CONTRACT in the form of a check made payable to EMPLOYEE to be mailed to
EMPLOYEE at EMPLOYEE's home address via certified mail return receipt requested
within thirty (30) business days after the EFFECTIVE DATE (as defined below) of this
AGREEMENT.
3.3 In exchange for the severance payment provided for herein,
EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives, successors,
and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its
predecessors, successors, assigns, officials, employees, representatives, agents, insurers,
attorneys, and all persons and entities acting by, through, under, or in concert with any of
them, and each of them (hereinafter referred to as "THE CITY PARTIES"), from any and all
claims, charges, complaints, contracts, understandings, liabilities, obligations, promises,
benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions,
causes of action, suits, rights, and demands of any nature whatsoever, known or unknown,
suspected or unsuspected, which EMPLOYEE now has or may acquire in the future, or
which EMPLOYEE ever had, relating to or arising out of any act, omission, occurrence,
condition, event, transaction, or thing which was done, omitted to be done, occurred or was
in effect at any time from the beginning of time up to and including
(hereinafter referred to collectively as "CLAIMS"), without regard to whether such CLAIMS
arise under the federal, state, or local constitutions, statutes, rules or regulations, or the
common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this
AGREEMENT specifically include, but are not limited to, claims based upon any alleged
breach of THE CONTRACT or any other agreement of employment, any demand for wages,
overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA,
any alleged breach of any duty arising out of contract or tort, any alleged wrongful
termination in violation of public policy, any alleged breach of any express or implied contract
for continued employment, any alleged employment discrimination or unlawful
discriminatory act, or any claim or cause of action including, but not limited to, any and all
claims whether arising under any federal, state or local law prohibiting breach of employment
contract, wrongful termination, or employment discrimination based upon age, race, color,
sex, religion, handicap or disability, national origin or any other protected category or
characteristic, and any and all rights or claims arising under the California Labor Code or
Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the
California Fair Employment and Housing Act, California Government Code §§12, 900 et
seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public
Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human
rights, civil rights, or employment discrimination or employee rights statute, rule, or
regulation.
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4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER
ADEA AND OWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the
"ADEA") makes it illegal for an employer to discharge any individual or otherwise
discriminate with respect to the nature and privileges of an individual's employment on
the basis that the individual is age forty (40) or older. The Older Workers Benefit
Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et. seq., Pub L
101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of
any right or claim under the ADEA, unless the waiver is knowing and voluntary. By
entering into this AGREEMENT, EMPLOYEE acknowledges that he knowingly and
voluntarily, for just compensation in addition to anything of value to which EMPLOYEE
was already entitled, waives and releases any rights he may have under the ADEA and/or
OWBPA. EMPLOYEE further acknowledges that he has been advised and understands,
pursuant to the provisions of the ADEA and OWBPA, that:
(a) This waiver/release is written in a manner understood by
EMPLOYEE;
(b) EMPLOYEE is aware of, and/or has been advised of, his rights under
the ADEA and OWBPA, and of the legal significance of his waiver of any possible claims
he currently may have under the ADEA, OWBPA and/or similar age discrimination laws;
(c) EMPLOYEE is entitled to a reasonable time of at least twenty-one
(21) days within which to review and consider this AGREEMENT and the waiver and
release of any rights he may have under the ADEA, the OWBPA and similar age
discrimination laws; but may, in the exercise of his own discretion, sign or reject this
AGREEMENT at any time before the expiration of the twenty-one (21) days;
(d) The waivers and releases set forth in this AGREEMENT shall not
apply to any rights or claims that may arise under the ADEA and/or OWBPA after the
EFFECTIVE DATE of this AGREEMENT;
(e) EMPLOYEE has been advised by this writing that he should consult
with an attorney prior to executing this AGREEMENT;
(f) EMPLOYEE has discussed this waiver and release with, and been
advised with respect thereto by, his counsel of choice, and that he does not need any
additional time within which to review and consider this AGREEMENT;
(g) EMPLOYEE has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT;
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(h) Notice of revocation within the seven (7) day revocation period must
be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must state, "I
hereby revoke my acceptance of our Agreement of Severance and General Release;" and
(i) This AGREEMENT shall not be effective until all parties have signed
the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution
("EFFECTIVE DATE")
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE
understands that California Civil Code section 1542 reads as follows:
"General Release --Claims Extinguished"
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor."
EMPLOYEE hereby waives the protection of California Civil Code section 1542.
6. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might require
a more detailed specification of the claims being released pursuant to the provisions of
Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to, and agrees
with, each other party as follows:
7.1. Advice of Counsel: The parties hereto have received independent
legal advice from their respective attorneys concerning the advisability of entering into and
executing this AGREEMENT or have been given the opportunity to obtain such advice. The
parties acknowledge that they have been represented by counsel of their own choice in the
negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have
had this AGREEMENT fully explained to them by such counsel, or have had such
opportunity to do so and that they are fully aware of the contents of this AGREEMENT and
of its legal effect.
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7.2. No Fraud in Inducement: No party (nor any officer, agent, employee,
representative, or attorney of or for any party) has made any statement or representation or
failed to make any statement or representation to any other party regarding any fact relied
upon in entering into this AGREEMENT, and neither party relies upon any statement,
representation, omission or promise of any other party in executing this AGREEMENT, or
in making the settlement provided for herein, except as expressly stated in this
AGREEMENT.
7.3. Independent Investiqation: Each party to this AGREEMENT has made
such investigation of the facts pertaining to this settlement and this AGREEMENT and all
the matters pertaining thereto, as it deems necessary.
7.4. Mistake Waived: In entering into this AGREEMENT, each party
assumes the risk of any misrepresentation, concealment or mistake. If any party should
subsequently discover that any fact relied upon by it in entering into this AGREEMENT was
untrue, or that any fact was concealed from it, or that its understanding of the facts or of the
law was incorrect, such party shall not be entitled to any relief in connection therewith,
including without limitation on the generality of the foregoing any alleged right or claim to set
aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and
binding between the parties, regardless of any claims of misrepresentation, promise made
without the intent to perform, concealment of fact, mistake of fact or law, or any other
circumstance whatsoever.
7.5. Later Discovery: The parties are aware that they may hereafter
discover claims or facts in addition to or different from those they now know or believe to be
true with respect to the matters related herein. Nevertheless, it is the intention of the parties
that EMPLOYEE fully, finally and forever settle and release all such matters, and all claims
relative thereto, which do now exist, may exist or have previously existed against THE CITY
or THE CITY PARTIES. In furtherance of such intention, the releases given here shall be,
and remain, in effect as full and complete releases of all such matters, notwithstanding the
discovery or existence of any additional or different claims or facts relative thereto.
7.6. Indemnification: EMPLOYEE agrees to indemnify and hold harmless
THE CITY or THE CITY PARTIES from, and against, any and all claims, damages, or
liabilities sustained by them as a direct result of the violation or breach of the covenants,
warranties, and representations undertaken pursuant to the provisions of this
AGREEMENT. EMPLOYEE understands and agrees that he shall be exclusively liable for
the payment of all taxes for which he is responsible, if any, as a result of his receipt of the
consideration referred to in Paragraph 3 of this AGREEMENT. In addition, EMPLOYEE
agrees fully to indemnify and hold the CITY PARTIES harmless for payment of tax
14-28
obligations as may be required by any federal, state or local taxing authority, at any time, as
a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT.
7.7. Future Cooperation & Consultation fees: EMPLOYEE shall execute
all such further and additional documents as shall be reasonable, convenient, necessary or
desirable to carry out the provisions of this AGREEMENT. EMPLOYEE shall provide THE
CITY with consultation services (including deposition or trial testimony) in any litigation
involving THE CITY which is reasonably related to acts or occurrences transpiring during
his employment. Said services shall be provided as needed by THE CITY at a rate of
$100.00 per hour.
7.8. Return of Confidential Information and Property: Prior to the
separation date, EMPLOYEE shall submit a written inventory of, and return to the City Clerk,
all City keys, equipment, computer identification cards or codes, and other equipment or
materials or confidential documents provided to or obtained by EMPLOYEE during the
course of his employment with THE CITY.
7.9 No Pendinq Claims and/or Actions: EMPLOYEE represents that he
has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any
local, state or federal agency or court; that he will not do so at any time hereafter for any
claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and that if
any such agency or court assumes jurisdiction of any such complaint or charge against THE
CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where ever filed, he
will request such agency or court to withdraw from the matter forthwith.
7.10. Ownership of Claims: EMPLOYEE represents and warrants as a
material term of this AGREEMENT that EMPLOYEE has not heretofore assigned,
transferred, released or granted, or purported to assign, transfer, release or grant, any of
the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT,
EMPLOYEE further warrants and represents that none of the CLAIMS released by
EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any
fashion to any other person and/or entity.
7.11 Authority: Each party represents to the other that it has the right to
enter into this AGREEMENT, and that it is not violating the terms or conditions of any other
AGREEMENT to which they are a party or by which they are bound by entering into this
AGREEMENT. The parties represent that they will obtain all necessary approvals to
execute this AGREEMENT. It is further represented and agreed that the individuals signing
this AGREEMENT on behalf of the respective parties have actual authority to execute this
AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has
been signed.
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8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an
admission by THE CITY of any liability of any kind. THE CITY denies any liability in
connection with any claim and intends hereby solely to avoid potential claims and/or litigation
and buy its peace.
8.2. Governing Law: This AGREEMENT has been executed and delivered
within the State of California, and the rights and obligations of the parties shall be construed
and enforced in accordance with, and governed by, the laws of the State of California.
8.3. Full Integration: This AGREEMENT is the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This AGREEMENT may
be amended only by a further agreement in writing, signed by the parties hereto.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure
to the benefit of the parties hereto, their respective agents, spouses, employees,
representatives, officials, attorneys, assigns, heirs, and successors in interest.
8.5. Joint Drafting: Each party agrees that it has cooperated in the drafting
and preparation of this AGREEMENT. Hence, in any construction to be made of this
AGREEMENT, the parties agree that it shall not be construed against any party.
8.6. Severability: In the event that any term, covenant, condition, provision
or agreement contained in this AGREEMENT is held to be invalid or void by any court of
competent jurisdiction, the invalidity of any such term, covenant, condition, provision or
agreement shall in no way affect any other term, covenant, condition, provision or
agreement and the remainder of this AGREEMENT shall still be in full force and effect.
8.7. Titles: The titles included in this AGREEMENT are for reference only
and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT.
8.8. Counterparts: This AGREEMENT may be executed in counterparts,
and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other signed
counterparts, shall constitute one AGREEMENT, which shall be binding upon and effective
as to all parties.
8.9. Notice: Any and all notices given to any party under this
AGREEMENT shall be given as provided in this paragraph. All notices given to either
party shall be made by certified or registered United States mail, or personal delivery, at
the noticing party's discretion, and addressed to the parties as set forth below. Notices
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shall be deemed, for all purposes, to have been given on the date of personal service or
three (3) consecutive calendar days following deposit of the same in the United States
mail.
As to EMPLOYEE:
At EMPLOYEE's home address on file with THE CITY.
As to THE CITY:
City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
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IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and
executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has
signed and executed this Agreement, and the attorneys for THE CITY and EMPLOYEE,
if any, have approved as to form as of the dates written below.
DATED:
DATED:
ATTEST:
City Clerk
APPROVED AS TO FORM:
[OFFICE OF THE CITY ATTORNEY]
Aaron C. Harp, City Attorney
[EMPLOYEE's LAW FIRM]
am
[Counsel]
EMPLOYEE
in
Jon Lewis
THE CITY
IN
City Manager
14-32
ATTACHMENT C
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This FIRST AMENDED AND RESTATES EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of July 24 Anr�2, 201 6 and is entered into by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and Charter city,
("Employer" or "City") and JON LEWIS, ("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 Chief of Police pursuant to
an Employment Agreement dated April 12, 2016 ("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, any prior
Employment Agreement shall have no force or effect osaaRt tG oeetiens5044-a7
and 600 of the Gity ChaFter,-ark`s R aGGOrdaRGe-with--New Beach"�v URiGcoa4
Code ("NBIV IG") SeEtOOR 2.24..100, the Citi Manager has dire^cted—aR ^vpeR
by the Citi MaRaner to be available fer the Pesitien of (chief of Delle
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment, and that there are no other agreements between them oral, written or
lmplled.The City desires to employ Employee as Chief of Dnli^e and to enter into an
greement with Employee UPen the terms and Gonditions in this Agreement
E. 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
follows..
SECTION 1: Term
14-33
This Agreement shall become effective Ju/yApf4 242, 20186 ("Effective Date"). Subject
to City's right to terminate Employee's employment at any time, as provided for in this
Agreement, the initial term of this Agreement is three two (32) years from the Effective
Date ("Initial Term"). This Agreement shall automatically be extended for an additional
twelve (12) month period unless City notifies Employee of its intent not to extend the
Agreement six (6) months prior to expiration of the Initial Term or any subsequent
automatic extension of the Initial Term. City's election not to extend this Agreement
shall not entitle Employee to Severance pursuant to Section 8 of this Agreement.
SECTION 2: No Break in Service
Employee has been continuously employed by the City since July 4, 1991. Employee's
continued employment as PGIiGe Chief of Police shall not constitute a break in service.
SECTION 3. Duties and Authority
Employer agrees to employ Employee as Chief of Police to exercise the powers and
authority and to perform the functions and duties of that position as specified in the
Newport Beach City Charter and Newport Beach Municipal Code ("NBDMC') and all
relevant resolutions, rules, regulations, procedures, and federal and state codes, as
they currently or may in the future exist, specifically including but not limited to those set
forth in the "Police Chief" job description attached hereto as Exhibit A and incorporated
herein by this reference. Employee shall exercise such power and authority and perform
such other functions and duties, not inconsistent with this Agreement, as Employer, by
the City Manager, may legally assign.
SECTION 4: Compensation
A.—Base Salary. Employer agrees to pay Employee an annual base salary of $
233,734.03 (TWO HUNDRED THIRTY--THREETuTEEN
THOUSAND SEVENFWE HUNDRED THIRTY-FOUR DOLLARS and 0301100)
("Base Salary"), 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"). Employee shall
be paid on a pro -rated basis bi-weekly at the same time as other employees of
the City are paid.—Employer shall also deduct sums Employee is obligated to pay
because of participation in plans or programs described in Section 5 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 p ,
Page 2
14-34
El
B. Adjustments to Compensation. At the time of any increase in compensation
the base salary that the Newport Beach Police Management Association
("NBPMA") receives pursuant to an approved Memorandum of Understanding
("MOU") between the NBPMA and the City, Employee shall receive a Base
Salary increase in compensation equal to the lesser of: (1) the salary
adjustment(s) (percentage increase(s)) provided to unit members as set forth in
the MOU between the NBPMA and the City; or (2) a cost of living adjustment
based on an increase in the "Cost of Living" as defined Government Code
Section 3511. 1, as it currently exists or may be modified in the future.
B.The Cost of living adjustment will be calculated by comparing the last
published index number that is closest in time to the date the adjustment in
compensation is to be made, and the corresponding index number for one year
earlier. 'The —GeSt Of IiRa adiUS+MeRt will e GafGUlated--bV GeR;E)aFiRG the
For example,pursuto— the NBPMAetweeR the Employer and the
ni13PM Ruary 1 2 � eugh �„no 30 2n�� if NBPMA members
eEti�da,�y--rZ�� ,
w+l-receive a 12.05% increase in base salary effective the pay period including
jaRua y 1, 2918July 1, 20177,- then, -4rf on deeeary July 1, 2074-87-, the Cost of
Living as defined in Government Code Section 3511.1, or successor statute,
exceeds 12.05%, Employee wouldW receive a 12.0-5% increase to the Base
Salary. If on deeuaFy July 1, 2017 , the Cost of Living as defined in
Government Code Section 3511.1, or successor statute, is less than 12-.0-5%,
Employee wouldW receive an increase to the Base Salary equal to the Cost of
Living. In this example, the cost of living adjustment would be calculated by
comparing the June 2017 index number to the June 2016 index number.
City and Employee expressly agree that any adjustment in compensation as
provided for in this Section shall not exceed the approved salary range adopted
by resolution of the City Council.
C. Uniform Allowance. As permissible by law and subject to the provisions and
limitations under the California Public Employees Retirement Law, the City shall
report the value of provided uniforms at One Thousand, Three Hundred Fifty
1(A-B)/B*100=i
A = Most recent index,
B = Corresponding index for one year earlier,
i = Cost of living adjustment, in percent.
Page / 3
14-35
Dollars ($1,350.00) per year as special compensation,m Qe^,da,TGe with
GaIPERS Fere firemen+o. The P -parties agree the reported value of uniforms is
intended to reflect clothing such as pants, shirts, jackets, and related attire and
excludes health and safety related equipment. Employee agrees and
understands that an increase in the uniform allowance will require an amendment
to the Agreement for CalPERS to consider a uniform allowance as special
compensation. If CalPERS does not agree that the original uniform allowance or
any increased allowance -qualifies as special compensation, then the City shall
have no liability in this regard, no duty to appeal this determination on the
Employee's behalf, and -Gr no duty to represent Employee in proceedings related
to said determination.
D€. Evaluations. Employer, by the City Manager, shall conduct annual evaluations on
or about Affil 12,the anniversary of the Effective Date of this Agreement or
consistent with that of other management team mom be rs Executive Management
Employees.
SECTION 5: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's
Key and Management Compensation Plan ("Compensation Plan"), Executive
Management category, Years of Continuous Service, 15 and over, at the
GurreRtrate of Nine and Sixty -Nine Hundredths (9.69) hours per pay period.
The amount of Employee's accrued Flex Leave may not exceed a total of
Seven Hundred Fifty—Five and Eighty—Two Hundredths (755.82) hours, and
no Flex Leave shall further accrue beyond the maximum total of Seven
Hundred Fifty—Five and Eighty—Two Hundredths (755.82) hours.
Page 4
14-36
The right to sell back accumulated Flex Leave shall be consistent with the "Leave
Sellback" provision of the Compensation Plan.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan in regards to: (i) the amount of Flex
Leave accrued per pay period; (ii) the maximum allowable balance of Flex Hours
that can be accrued; (iii) provisions related to the use of Flex Leave to provide
dependent care; or (iv) Leave Sellback.
B. Administrative Leave. Employee shall be entitled to administrative leave hours, if
any, in the sole discretion of the City Manager, up to a maximum of eighty (80)
hours of adMiRistratiye loge -per calendar year—., as detei4*Toed bytheGi}
Manager in his or her o;e-discretion. Administrative (Leave hours, if any, shall
be credited to Employee the first pay period in January of each calendar year.
Administrative leave accrual shall be capped at eighty (80) hours. will not onnr„e
from nolepdaF to nolepdar door onil must be used onil if not used wig be loot by
the cvnGiusiv�u�ron of each GaTe c'�ye-aT Consistent with the Compensation Plan,
there is no right to sell back any accumulated Administrative Leave.
Holidays.C. r r
MaRagemeRt F=MP'GyeeS ("Regular Holidays”
EXGept as previded by law, Employee shall be required to work Mernerial
IRdepeRdeRGe Day (july 4); Labor Day; and New Years' Eve (DeGember af
("MandateryWerkingHolidays"). MandatoryHelid
Employee id 1.23 pay peried and the City will report this p
The City Will ROt r r r Regular Holidays as SpeGial
agree that the ultimate deGiSieR en speGial GOMpensatien Felated to holiday p
to determiRation by
MandatoryHolidays
liabilityhave ne r
related te sand d8teFMinatien Employee .ke time -off forholidays
Managementmanner as Executive 1 1 ("Regular Holidays').
not reportRegular HolidaysI'compensation.
D. Other Leaves. Employee shall be entitled to the same Jury Leays Bereavement
Leave, Worker's Compensation Leave, and Medical Treatment for Industrial
Injuries Leave as received Executive Management Employees of the City, as
provided in the Compensation Plan and Employee Policy Manual ("EPM;. This
Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan or EPM in regards to these ether
leaves.
Page 5
14-37
E. Other Benefits. Unless otherwise provided in this Agreement, Employee shall
receive the same benefits as are available to Executive Management Employees
under the Compensation Plan and/or EPM, including cafeteria benefits, DUNA
Supplemental Pension, IRS Section 125 Flexible Spending Accounts, short term
and long term disability plans, life insurance plans, and deferred compensation
plans. This Agreement shall be deemed amended whenever the City Council
adopts a resolution or takes action changing these benefits under the
Compensation Plan a• •forth hereon, Employee
KI I!.
_llillo�• _ W MIN
11 • • �
• • • • •
1 I • • _
MIMI
INO
• • • •• • • _
1
11.111 poll I
r � -
1 I _ • _
1 .. . .0 AM
1
Page / 6
14-38
F. Retirement. Employee shall be eligible for the "3% at 50" retirement formula (i.e.
the same retirement formula set forth in Section 4; (D); (1) of the "Retirement
Benefits" and Tier 1 ("Legacy') portion of the current NBPMA MOU). Employee
shall contribute the full statutory member contribution, equal to Nine Percent
(9%) of pensionable compensation, plus an additional Five and Sixth Tenths
(5.6%) of pensionable compensation towards retirement costs as permitted
under Government Code Section 20516, -for a total contribution of Fourteen and
Parties agree that The Darr gree Cit i will not report the vale �e of an
Six Tenths (14.6%). �--��t�,
Employer Paid Contribut�,�a,s;eGialGOMpensati n. If the City
Council enters into a MOU between the City and NBPMA which provides for the
retirement contributions for members of the NBPMA in excess of 14.6%, this
Agreement shall be deemed amended and Employee shall be subject to the
same formula percentage contribution as it is applied to the members of the
NBPMA and for the same duration.
G. Annual Physical Exam. Employee may undergo an annual physical examination
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of One Thousand Dollars
($1,000.00).
H. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee
with a vehicle that may be used for City -related business purposes. City
anticipates that the vehicle provided to Employee may be a Chevy Tahoe, but the
make and model of the vehicle shall remain in the City's sole discretion. City
shall pay for reasonable maintenance of the vehicle and gasoline. It is
contemplated by the parties that Employee will use the vehicle principally for
City -related business, however, to the extent that Employee uses the vehicle for
any incidental personal business, Employee shall pay for gasoline for all such
personal use.
1. City to Provide Cell DhonePhone Allowance. Employee shall be entitled to the
same phone allowance as provided to any of the Executive Management
Employee.
J. Deferred Compensation. Deferred Compensation. On August 24, 2018,
Employee shall receive one percent (1%) of Employee's Base Salary in the form
of an Employer paid deferred compensation contribution to Employer's approved
deferred compensation plan. This payment shall be a one-time payment and
non-recurring.
J-. K. Key and Management Group, Executive Management Category. Except as
expressly provided herein, Employee shall be treated as a member of the City's
Key and Management Group, Executive Management category. As such, the
Page 7
14-39
benefits, terms and conditions of the Compensation Plan shall apply to Employee
as provided more specifically above, provided however, in the event of a conflict
between the provisions of this Agreement and the Compensation Plan, this
Agreement shall prevail.
SECTION 6: 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 Neither 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 Manager. 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. Consistent with Employer's normal expense reimbursement procedures or such
other procedure as may be designated by the City Manager, 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. Reasonable expenses will also
include the reasonable and actual cost of lodging for meetings outside of Orange
County.
C. The expenses to be budgeted and paid in this Section 6, Paragraphs o and B
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Manager. 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 7: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and Newport Beach Municipal
Code Chapter 2.12.020, Employee is appointed by, and serves at the pleasure
of, the City Manager. 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 8, below. Nothing herein shall be construed to limit the rights
0
14-40
and obligations of City and Employee provided in the Public Safety Officers
Procedural Bill of Rights Act, codified at Government Code Section 3300, et seq.
(POBRA).
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer, provided that
Employee provides sixty (60) day's prior written notice to Employer of the
effective date of his resignation. Upon the effective date of resignation, Employee
forfeits all compensation and benefits owing for the remainder of the term of this
Agreement, as well as any potential "Severance" pay per Section 8 below
SECTION 8: Severance and Benefit Payoff at Termination
Termination without cause. By providing Employee at least fourteen (14)
calendar days' written notice thereof, the City may terminate Employee without
cause but rather based upon management reasons such as implementing the
City's goals or policies, including but not limited to: (i) change of administration,
or (ii) incompatibility of management styles. In the event Employee is terminated
without cause, Employee expressly agrees that he shall not be entitled to any
Severance pay as the result of the termination of this Agreement except as
provided in this Section 8(A). If Employer terminates this Agreement (thereby
terminating ee's Employment), Employee without cause, and if Employee
signs, delivers to the City, and does not revoke, the Agreement of Separation,
Severance and General Releasein the form attached hereto as Exhibit B, then
Employer shall pay Employee a lump sum benefit equal to six (6) months of his
then applicable Base Salary, and six (6) months of medical coverage as provided
under the Compensation Plan and/or EPM as long as Employee is already
enrolled and receiving medical coverage through the City medical benefits plan
at the time of termination. as determined by Cit„ Manager, yeF shall
ide Fnrny� mnlnyn with fnurte 1 Galendar day's written nnti
Ge— ,
Employ ns r! and `toes not General Release
�^-TPTvY"" GigRG, ' "�.rCtFtl'e�5 t�lttt:--bi-t�, �Cv`,t�.-,r�C,-tl�-CfFp�tttl.���-r�-ai--rzcrccr�c
Agreement On the forum a ttaihTedhere-to as Exhibit B, Employer shall pay
Employee a lump sum benefit equal to civ (6) months of his then onnlinahle Rase
dQta , a�}� (6)monthsof-mediGaal Govera'ge asp oWded under- the
Compensation 4an ±nil/nr CDAA as long as Employee is already
enrolled and
termination the fellow'
...
■ •
■
Page / 9
14-41
In accordance with Government Code Section 53260 (a), in no event shall
Employee receive a cash settlement that is greater than the monthly Base Salary
of Employee multiplied by the number of months left on the unexpired term of the
Agreement.
The lump sum payment described in this Section 8 (A) shall be referred to herein
as "Severance".
In order to comply with the requirements of California Government Code section
3304(c), termination by the City Manager for a reason other than cause shall be
conducted in accordance with the following procedures:
1. The City reserves the right to place Employee on paid administrative leave for
all or a portion of the fourteen (14) day written notice period provided under
this Section 8A.
2. Employee may request to appear before the City Council prior to the effective
date of the termination to challenge the reasons for the termination or to raise
mitigating circumstances regarding the termination but in such event would
waive any right to Severance pay under this Section 8(A).
B. Termination with cause. If Employer terminates this Agreement (thereby
terminating Employee's Employment) with cause, as determined by the City
Manager, 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. 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. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted direction of the City Manager or the
policy decisions of the City Council made by the City Council as a body;
and/or
6. 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
Page 10
14-42
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.
Within five (5) days of receipt of written notice of termination for cause under this
Section 8(B), Employee may submit a request in writing to the City Manager for
an administrative appeal. Such appeal shall not prohibit or otherwise delay the
termination of Employee prior to the administrative appeal. Failure to timely file
such a request shall be deemed a waiver of the right to do so.
Upon Employee's written appeal request, the City Manager shall appoint an
independent hearing officer to conduct an administrative hearing and issue an
advisory decision, which shall then be reviewed and considered and either
adopted, modified or rejected by City Council. Both the Employee and the City
and their respective representatives, if any, shall make reasonable efforts to set
an administrative appeal hearing date within thirty (30) days from the City
Manager's receipt of the written appeal request.
At the administrative appeal hearing, the independent hearing officer shall be
presented with both the information and documents on which the City based its
decision to terminate as well as any information and documents on which the
City based its decision to terminate for cause as well as any information and
documentation that the Employee chooses to submit to challenge the City's
information and documents to raise mitigating circumstances for consideration by
the independent hearing officer.
Within thirty (30) days of completing the hearing, the independent hearing officer
shall issue an advisory decision in writing to the City Council determining whether
Employee was properly terminated and whether there was sufficient "cause" to
justify not paying Severance under the terms of this Agreement, unless
Severance was already tendered. Following City Council's review and
consideration of the advisory decision, Employee shall be notified in writing as to
whether the advisory decision will be upheld, modified or rescinded.
C. Any dispute as to Tether SeyeranGe iS e-XGUse l under Senn 8 (R) shall-
e
Employer's and Employee's rights and obligations under e Dnlino OffinoI
�
Employer's obligationsT
pr/lGed iral Rill of Rights POB A./f Employee resigns or otherwise terminates this
Agreement (thereby terminating Employee's Employment) or if this Agreement is
not renewed as provided in Section 1, Employee shall not be entitled to any
Severance.
Page 11
14-43
E. UpUpon termination (regardless of reason), Employee shall be compensated for
all accrued but unused Flex Leave and Administrative Leave. Unused Sick
Leave will be compensated consistent with the EPM provision regarding
Payment for Sick Leave Upon Termination as amended from time to time or
superseded. "',.e GOMpensat+en- shall be paid for any aGGrue l but unused
Administrative Leave.
SECTION 9: 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 afse-include
time outside normal office hours (including occasional as -needed 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 the Newport BeaGh Police
Department during normal business hours, Monday through Friday d iriRg normal
b SiRess hours.
SECTION 10: Confidentiality
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. 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
Geundl,thee GGity management staff, nor the Employee shall make any written,
Page 12
14-44
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 10 shall survive
the termination of this Agreement.
SECTION 11: 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 12: Indemnification
1
To the extent mandated by the California Government Code, the City shall defend, hold
harmless, and indemnify Employee against any tort, professional liability, claim or
demand, or other legal action arising out of an alleged act or omission occurring in the
performance of Employee's services under this Agreement. This section shall not apply
to any intentional tort or crime committed by Employee, to any action outside the course
and scope of the services provided by Employee under this Agreement, or any other
inf—fional or malicious conduct or gross negligence of Employee.
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 13: Other Terms and Conditions of Employment
Page 13
14-45
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 14: 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
With a courtesy copy to:
City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Jon Lewis
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 15: 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
Page 14
14-46
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Manager.
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.
oF City R afiQ.22. in the event of a conflict between the provisions of this
Agreement and the City Charter, or this Agreement and the NBMC, the City
Charter or the NBMC shall prevail over this Agreement. All other City personnel
ordinances, resolutions, rules, and policies shall apply to Employee in the same
manner as applied to other Executive Management Employees.The Got
personnel ordinanGes, resolutions, rules and peliGies shall apply to Employe
preyided, heand
iOnnthe eyen�fa +Gbiooer� provisions of�4h�
Agreementanttt a Gity GhQl-ternr, this Agreement and the Municipal Cede, the
City Charter er the M iniGipal Cede shallpr ver this- Agreem��
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.
[SIGNATURES ON FOLLOWING PAGE]
Page 15
14-47
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 'alifornia Municipal Corporation
By:
David Kiff, City Manager
Date:
APPROVED AS TO FORM
Office of the City Attorney
By:
Aaron C. Harp,
City Attorney
Date:
ATTEST:
By:
Leilani Brown,
City Clerk
EMPLOYEE
An Individual
By:
Jon Lewis
Date:
Attachments: Exhibit A --Police Chief Job Description
Exhibit B — Agreement of Separation, Severance and—General Release
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EXHIBIT A
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City of Newport Beach - Class Specification Bulletin
CITY OF NEWPORT BEACH
Established Date: Mar 2, 2010
Revision Date: Dec 8, 2015
DEFINITION:
POLICE CHIEF
Bargaining Unit: Key & Management - Department Director
Safety
SALARY RANGE
$77.32 - $115.96 Hourly
$6,185.60 - $9,276.80 Biweekly
$13,402.13 - $20,099.73 Monthly
$160,825.60 - $241,196.80 Annually
Page 1 of 3
Class Code:
700002B
Under direction of the City Manager, the Police Chief is responsible for the administration, development, and advancement of
the City's full service Police Department; to oversee and implement all programs and procedures related to crime prevention,
law enforcement, and related policing services; to serve as a member of the City Manager's Executive Management Team; and
to provide highly responsible and professional staff assistance to the City Manager and City Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative direction from the City Manager. Exercises
general supervision over the entire department, and direct supervision over division managers and professional/administrative
support staff.
CLASSIFICATION CHARACTERISTICS: The Police Chief is expected to exercise independent judgment, wisdom, and
innovation in establishing and administering all Police Department operations, consistent with the City Manager's expectations
and with concern for the entire City government organization. As an inspiring leader, the Police Chief must demonstrate
integrity and promote ethical standards within the department, advocate collaboration with the community, and be a team
member with the City organization. The Police Chief must be politically astute, but apolitical.
ESSENTIAL DUTIES:
The following essential functions are typical for this classification. Incumbents may not perform all of the listed functions and/or
may be required to perform additional or different functions from those below, to address business needs and changing
business practices:
• Advancing the interests of the department and the City, plans, directs, and oversees a variety of programs designed for the
maintenance of law and order and protection of life and property within the City of Newport Beach; develops comprehensive
plans to satisfy needs for departmental services to ensure the highest possible quality of life for residents and visitors;
• Ensuring the optimum and most efficient and effective use of staffing and resources, administers the overall operation of a full
service police department, including hiring, personnel administration, office operations, budgeting, and community relations;
serves as a member of the City's Executive Management Team and collaborates with other departments to resolve city-wide
problems;
• Demonstrating a strong working knowledge of the legal system, confers with legal advisors and City officials regarding law
enforcement issues; provides professional and technical advice and assistance to the City Manager and City Council on matters
related to law enforcement services; represents the City as a witness in legal proceedings;
• Exhibiting exceptional communication skills, prepares and presents staff reports and related materials for City Council or
public response; resolves issues raised by City Council members, community groups, employee associations, and the public;
advocates the City's position in negotiations with various regulatory agencies to satisfy requirements;
• Building cohesive and collaborative departmental working relationships, plans, organizes, selects and supervises the work of
departmental staff; establishes accountability throughout the department; promotes employee development through staff
training and succession planning; ensures consistent application of City personnel policies and employee agreements;
• Demonstrating stewardship of public funds, directs the preparation and administration of the Police Department budget;
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City of Newport Beach - Class Specification Bulletin
Page 2 of 3
participates in the forecast of revenue, expenses and additional funds needed; guides subordinate managers in developing and
administering fiscally responsible budgets; carries out police functions in the most cost effective ways;
• Promoting a strong community policing program, establishes and maintains collaborative working relationships with property
owners, community groups, business districts, and the public; represents the Police Department and the City at community and
civic events;
• Regularly and predictably attend work; and
• Perform related duties as assigned.
QUALIFICATIONS:
To perform this job successfully, an individual must be able to perform each essential function. The requirements listed below
are representative of the knowledge, skill, and/or ability required.
Knowledge of:
Advanced principles and practices of crime prevention and law enforcement, including criminal investigation and identification,
patrol, traffic control, animal control, records management, care and custody of persons and property and environmental
protection;
Principles and practices of organization, administration and personnel management, and leadership of a law enforcement
agency;
Principles and techniques of municipal budget development and administration;
Applicable Federal, State and local laws, ordinances, codes and regulations;
Principles of supervision, training and performance evaluation;
Current technological and communication equipment and software applicable to the delivery of departmental services to
internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
Ability to:
Effectively direct, plan and organize the activities of a comprehensive city-wide full service police department;
Critically analyze problems, identify alternative solutions, and implement recommendations in support of goals;
Understand the needs of a tourism -based community and its impact on public safety;
Promote collaboration and innovation;
Provide a stabilizing influence during periods of change;
Weigh risks and consequences and make clear decisions;
Equitably interpret and apply City policies, procedures, rules and regulations;
Diffuse conflict and gain cooperation through discussion and persuasion;
Motivate, select, supervise, and evaluate personnel;
Promote fiscal responsibility in administering a departmental budget;
Develop and maintain effective partnerships with community groups;
Build loyalty within the organization and advocate accessibility and responsiveness to the community;
Effectively and persuasively communicate, both orally and in writing; and
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City of Newport Beach - Class Specification Bulletin Page 3 of 3
Establish and maintain cooperative working relationships with those contacted in the course of work.
EXPERIENCE & TRAINING AND LICENSE/CERTIFICATE:
A combination of experience and education that would likely provide the required knowledge and abilities may be qualifying. A
typical way to obtain the knowledge and abilities would be:
Experience: Seven years of increasingly responsible managerial and supervisory law enforcement experience, including having
achieved the rank of Captain, Deputy/Assistant Chief or above.
Educaiton: Equivalent to completion of a Bachelor's degree in criminal justice, law, management, public administration,
business administration, or a related field from an accredited college or university. A Master's degree is desirable.
License/Certificate: Due to the performance of some field duties which require the operation of a personal or City vehicle, a
valid and appropriate California driver's license and an acceptable driving record are required.
Possession of P.O.S.T. Management Certificate at time of appointment.
Possession of P.O.S.T Executive Certificate desirable.
Completion of Federal Bureau of Investigation's National Academy is desirable.
Additional Requirement: Prior to employment, the prospective candidate must successfully complete a thorough background
review, including being fingerprinted by Newport Beach Police Department.
Disaster Service Worker: In accordance with Government Code Section 3100, City of Newport Beach Employees, in the
event of a disaster, are considered disaster service workers and may be asked to respond accordingly.
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Exhibit B
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GAGREEMENT OF SEPARATION, SEVERANCE AND ENERAL RELEASE
AGREE4 E T
1. PARTIES
This Agreement of Separation, Severance, and General Release
(hereinafter referred to as the 'AGREEMENT') is entered into by and between
the City of Newport Beach, a charter city and municipal corporation (hereinafter
referred to as "THE CITY'), and JON LEWIS, an individual (hereinafter referred
to as "EMPLOYEE').Th;s "FeementofSepa� Se�teFanGe, Genal
Release /hereinafter
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2. RECITALS
2.1 EMPLOYEE was hired by THE CITY as an at -will chief of police
effective April 12, 2016 serving at the pleasure of the City Manager of THE CITY
pursuant to a written contract, a copy of which is attached hereto as Exhibit "A" ("THE
CONTRACT'). EMPLOYEE is currently_ years old.
2.2 THE CITY and EMPLOYEE desire that EMPLOYEE resign and
enter into a severance agreement whereby EMPLOYEE receives severance
compensation in exchange for executing a general release and waiver of any and all
claims that EMPLOYEE may have against THE CITY, including but not limited to its
elected and non -elected officials, employees, attorneys, and agents. Accordingly, the
parties hereto intend by this AGREEMENT to mutually conclude any and all
employment relationships between THE CITY and EMPLOYEE by means of
EMPLOYEE's voluntary separation as of , _ . This AGREEMENT sets forth the
full and complete terms and conditions concluding EMPLOYEE's employment
relationship with the CITY and any obligations related thereto, including any provided
under THE CONTRACT.
2.3 In accordance with this AGREEMENT and with applicable state and
federal laws, EMPLOYEE acknowledges that EMPLOYEE has been advised of
EMPLOYEE's post -employment rights, including but not limited to, EMPLOYEE's rights
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA'), the
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Employee Retirement Income Security Act of 1974 ("ERISA'), and the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA').
3. CONSIDERATION
3.1 EMPLOYEE shall receive payment to him at the time of his
voluntary separation all earned salary, accrued fringe benefits as detailed in THE
CONTRACT, and/or all other wage compensation/benefits owed to EMPLOYEE upon
separation of employment, as required by law or THE CONTRACT or any other
agreement with THE CITY.
3.2 In exchange for the waivers and releases set forth herein, THE
CITY shall also cause to be paid to EMPLOYEE an additional compensatory payment
by means of severance, settlement and release in the form of alump sum amount of
and cents ($ .00), as set forth in THE CONTRACT in the
form of a check made payable to EMPLOYEE to be mailed to EMPLOYEE at
EMPLOYEE's home address via certified mail return receipt requested within thirty (30)
business days after the EFFECTIVE DATE (as defined below) of his AGREEMENT.
3.3 In exchange for the severance payment provided for herein,
EMPLOYEE, and on behalf of EMPLOYEE's spouse, heirs, representatives,
successors, and assigns, hereby releases, acquits, and forever discharges THE CITY,
and each of its predecessors, successors, assigns, officials, employees,
representatives, agents, insurers, attorneys, and all persons and entities acting by,
through, under, or in concert with any of them, and each of them (hereinafter referred
to as "THE CITY PARTIES'), from any and all claims, charges, complaints, contracts,
understandings, liabilities, obligations, promises, benefits, agreements, controversies,
costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and
demands of any nature whatsoever, known or unknown, suspected or unsuspected,
which EMPLOYEE now has or may acquire in the future, or which EMPLOYEE ever
had, relating to or arising out of any act, omission, occurrence, condition, event,
transaction, or thing which was done, omitted to be done, occurred or was in effect at
any time from the beginning of time up to and including (hereinafter
referred to collectively as "CLAIMS'), without regard to whether such CLAIMS arise
under the federal, state, or local constitutions, statutes, rules or regulations, or the
common law. EMPLOYEE expressly acknowledges, that the CLAIMS forever barred
by this AGREEMENT specifically include, but are not limited to, claims based upon any
alleged breach of THE CONTRACT or any other agreement of employment, any
demand for wages, overtime or benefits, any claims of violation of the provisions of
ERISA, COBRA, or HIPAA, any alleged breach of any duty arising out of contract or
tort, any alleged wrongful termination in violation of public policy, any alleged breach of
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any express or implied contract for continued employment, any alleged employment
discrimination or unlawful discriminatory act, or any claim or cause of action including,
but not limited to, any and all claims whether arising under any federal, state or local
law prohibiting breach of employment contract, wrongful termination, or employment
discrimination based upon age, race, color, sex, religion, handicap or disability,
national original or any other protected category or characteristic, and any and all rights
or claims arising under the California Labor Code or Industrial Welfare Commission
Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment
and Housing Act, California Government Code §§ 12, 900 et seq., the Americans With
Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public Safety Officers
Procedural Bill of Right Act, and any other federal, state, or local human rights, civil
rights, or employment discrimination or employee rights statute, rule, or regulation.
4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA
AND OWSPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the
'ADEA') makes it illegal for an employer to discharge any individual or otherwise
discriminate with respect to the nature and privileges of an individual's employment on the
basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act
(hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et seq., Pub L 101-433, 104
Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim
under the ADEA, unless the waiver is knowing and voluntary. By entering into this
AGREEMENT, EMPLOYEE acknowledges that he knowingly and voluntarily, for just
compensation in addition to anything of value to which EMPLOYEE- was already entitled,
waives and releases any rights he may have under the ADEA and/or OWBPA.
EMPLOYEE further acknowledges that he has been advised and understands, pursuant to
the provisions of the ADEA and OWBPA, that:
(a) This waiver/release is written in a manner understood by
EMPLOYEE,
(b) EMPLOYEE is aware of, and/or has been advised of, his
rights under the ADEA and OWBPA, and of the legal significance of his waiver of any
possible claims he currently may have under the ADEA, OWBPA and/or similar age
discrimination laws,-
(C)
aws,
(c) EMPLOYEE is entitled to a reasonable time of at least
twenty-one (21) days within which to review and consider this AGREEMENT and the
waiver and release of any rights he may have under the ADEA, the OWBPA and similar
age discrimination laws; but may, in the exercise of his own discretion, sign or reject this
AGREEMENT at any time before the expiration of the twenty-one (2 1) days;
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(d) The waivers and releases set forth in this AGREEMENT shall not
apply to any rights or claims that may arise under the ADEA and/or OWBPA after the
EFFECTIBVE DATE of this AGREEMENT;
(e) EMPLOYEE has been advised by this writing that he should consult
with an attorney prior to executing this AGREEMENT;
(f) EMPLOYEE has discussed this waiver and release with, and been
advised with respect thereto by, his counsel of choice, and that he does not need any
additional time within which to review and consider this AGREEMENT,
(g) EMPLOYEE has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT,
(h) Notice of revocation within the seven (7) day revocation period
must be provided, in writing, to THE CITY pursuant to Paragraph 8.9 herein, and must
state, "I hereby revoke my acceptance of our Agreement of Severance and General
Release;" and
(i) This AGREEMENT shall not be effective until all parties have signed the
AGREEMENT and ten (10) days have passed since EMPLOYEE's execution
("EFFECTIVE DATE').
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, EMPLOYEE
understands that California Civil Code section 1542 reads as follows:
"General Release—Claims Extinguished"
'A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time
of executing the release, which if known by him must have
materially affected his settlement with the debtor. "
EMPLOYEE hereby waives the protection of California Code section 1542.
6. WAIVER OF ADDITIONAL CLAIMS
EMPLOYEE hereby waives any provisions of state or federal law that might
require a more detailed specification of the claims being released pursuant to the
provisions of Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
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Each of the parties to this AGREEMENT represents and warrants to, and agrees
with, each other party as follows:
7.1 Advice of Counsel: The parties hereto have received independent
legal advice from their respective attorneys concerning the advisability of entering into
and executing this AGREEMENT or have been given the opportunity to obtain such
advice. The parties acknowledge that they have been represented by counsel of their
own choice in the negotiation of this AGREEMENT, that they have read this
AGREEMENT; that they have had this AGREEMENT fully explained to them by such
counsel, or have had such opportunity to do so and that they are fully aware of the
contents of this AGREEMENT and of its legal effect.
7.2 No Fraud or Inducement: No party (nor any officer, agent,
employee, representative, or attorney of or for any party) has made any statement or
representation or failed to make any statement of representation to any other party
regarding any fact relied upon in entering into this AGREEMENT, and neither party
relies upon any statement, representation, omission or promise of any other party in
executing this AGREEMENT, or in making the settlement provided for herein, except as
expressly stated in this AGREEMENT.
7.3 Independent Investigation: Each party to this AGREEMENT has
made such investigation of the facts pertaining to this settlement and this AGREEMENT
and all the matters pertaining thereto, as it deems necessary.
7.4 Mistake Waived: In entering into this AGREEMENT, each party
assumes the risk of any misrepresentation, concealment or mistake. If any party should
subsequently discover that any fact relied upon by it in entering into this AGREEMENT
was untrue, or that any fact was concealed from it, or that its understanding of the facts
or of the law was incorrect, such party shall not be entitled to any relief in connection
therewith, including without limitation on the generality of the foregoing any alleged right
or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to
be, and is, final and binding between the parties, regardless of any claims of
misrepresentation, promise made without the intent to perform, concealment of fact,
mistake of fact or law, or any other circumstance whatsoever.
7.5 Later Discovery: The parties are aware that they may hereafter
discover claims or facts in addition to or different from those they no know or believe to
be true with respect to the matter related herein. Nevertheless, it is the intention of the
parties that EMPLOYEE fully, finally and forever settle and release all such matters, and
all claims relative thereto, which do now exist, may exist or have previously existed
against THE CITY or THE CITY PARTIES. In furtherance of such intention, the
releases given here shall be, and remain, in effect as full and complete releases of all
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such matters, notwithstanding the discovery or existence of any additional or different
claims or facts relative thereto.
7.6 Indemnification: EMPLOYEE agrees to indemnify and hold
harmless THE CITY or THE CITY PARTIES from, and against, any and all claims,
damages, or liabilities sustained by them as a direct result of the violation or breach of
the covenants, warranties, and representations undertaken pursuant to the provisions of
this AGREEMENT. EMPLOYEE understands and agrees that he shall be exclusively
liable for the payment of all taxes for which he is responsible, if any, as a result of his
receipt of the consideration referred to in Paragraph 3 of this AGREEMENT. In addition,
EMPLOYEE agrees fully to indemnify and hold the CITY PARTIES harmless for
payment of tax obligations as may be required by any federal, state or local taxing
authority, at any time, as a result of the payment of the consideration set forth in
Paragraph 3 of this AGREEMENT.
7.7 Future Cooperation & Consultation fees: EMPLOYEE shall execute
all such further and additional documents as shall be reasonable, convenient,
necessary or desirable to carry out the provisions of this AGREEMENT. EMPLOYEE
shall provide THE CITY with consultation services (including deposition or trial
testimony) in any litigation involving THE CITY which is reasonably related to acts or
occurrences transpiring during his employment. Said services shall be provided as
needed by THE CITY at a rate of $100.00 per hour.
7.8. Return of Confidential Information and Property: Prior to the
separation date, EMPLOYEE shall submit a written inventory of, and return to the City
Clerk, all City keys, equipment, computer identification cards or codes, and other
equipment or materials or confidential documents provided to or obtained by
EMPLOYEE during the course of his employment with THE CITY.
7.9 No Pendinq Claims and/or Actions: EMPLOYEE represents that he
has not filed any complaints or charges against THE CITY or THE CITY PARTIES with
any local, state or federal agency or court; that he will not do so at any time hereafter for
any claim arising up to and including the EFFECTIVE DATE of this AGREEMENT; and
that if any such agency or court assumes jurisdiction of any such complaint or charge
against THE CITY or THE CITY PARTIES on behalf of EMPLOYEE, whenever or where
ever filed, he will request such agency or court to withdraw from the matter forthwith.
7.10. Ownership of Claims: EMPLOYEE represents and warrants as a
material term of this AGREEMENT that EMPLOYEE has not heretofore assigned,
transferred, released or granted, or purported to assign, transfer, release or grant, any
of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT,
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EMPLOYEE further warrants and represents that none of the CLAIMS released by
EMPLOYEE thereunder will in the future be assigned, conveyed, or transferred in any
fashion to any other person and/or entity.
7 .11 Authority: Each party represents to the other that it has the right to
enter into this AGREEMENT, and that it is not violating the terms or conditions of any
other AGREEMENT to which they are a party or by which they are bound by entering
into this AGREEMENT. The parties represent that they will obtain all necessary
approvals to execute this AGREEMENT. It is further represented and agreed that the
individuals signing this AGREEMENT on behalf of the respective parties have actual
authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf
this AGREEMENT has been signed.
8. MISCELLANEOUS
8.1. No Admission: Nothing contained herein shall be construed as an
admission by THE CITY of any liability of any kind. THE CITY denies any liability in
connection with any claim and intends hereby solely to avoid potential claims and/or
litigation and buy its peace.
8.2. Governing Law: This AGREEMENT has been executed and delivered
within the State of California, and the rights and obligations of the parties shall be
construed and enforced in accordance with, and governed by, the laws of the State of
California.
8.3. Full Integration: This AGREEMENT is the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This AGREEMENT
may be amended only by a further agreement in writing, signed by the parties hereto.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure
to the benefit of the parties hereto, their respective agents, spouses, employees,
representatives, officials, attorneys, assigns, heirs, and successors in interest.
8.5. Joint Draftinq: Each party agrees that it has cooperated in the drafting
and preparation of this AGREEMENT. Hence, in any construction to be made of this
AGREEMENT, the parties agree that it shall not be construed against any party.
8.6. Severability: In the event that any term, covenant, condition, provision
or agreement contained in this AGREEMENT is held to be invalid or void by any court of
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competent jurisdiction, the invalidity of any such term, covenant, condition, provision or
agreement shall in no way affect any other term, covenant, condition, provision or
agreement and the remainder of this AGREEMENT shall still be in full force and effect.
8. 7. Titles: The titles included in this AGREEMENT are for reference only
and are not part of its terms, nor do they in any way modify the terms of this
AGREEMENT.
8.8. Counterparts: This AGREEMENT may be executed in counterparts,
and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other signed
counterparts, shall constitute one AGREEMENT, which shall be binding upon and
effective as to all parties.
8.9. Notice: Any and all notices given to any party under this AGREEMENT
shall be given as provided in this paragraph. All notices given to either party shall be
made by certified or registered United States mail, or personal delivery, at the noticing
party's discretion, and addressed to the parties as set forth below. Notices shall be
deemed, for all purposes, to have been given on the date of personal service or three
(3) consecutive calendar days following deposit of the same in the United States mail.
As to EMPLOYEE:
At EMPLOYEE's home address on file with THE CITY.
As to THE CITY:
City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
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IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and
executed on its behalf by its Mayor and duly attested by its City Clerk, EMPLOYEE has
signed and executed this Agreement, and the attorneys for THE CITY and EMPLOYEE,
if any, have approved as to form as of the dates written below.
DATED:
DATED:
ATTEST:
City Clerk
APPROVED AS TO FORM:
[OFFICE OF THE CITY ATTORNEY]
EMPLOYEE
09
Jon Lewis
THE CITY
City Manager
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Aaron C. Harp, City Attorney
[EMPL0YEE's LAW FIRM]
By:
[Counsel]
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OPINION
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