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HomeMy WebLinkAbout18 - Amended and Restated Employment Agreements for City Manager, City Attorney and City ClerkP0 @ CITY OF i NEWPORT BEACH City Council Staff Report April 9, 2019 Agenda Item No. 18 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Barbara J. Salvini, Human Resources Director - 949-644-3300, bsalvini@newportbeachca.gov PREPARED BY: Barbara J. Salvini, Human Resources Director, bsalvini(a-_)newportbeachca.gov PHONE: 949-644-3300 TITLE: Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk ABSTRACT: The City Charter of Newport Beach, Articles V and VI, establishes the powers, duties and responsibilities of the City Council's three appointed positions: City Manager, City Attorney, and City Clerk ("Appointees"). Their terms and conditions of employment are defined by their respective Employment Agreements. From time to time, the City Council and incumbents may renegotiate the employment terms, including adjustments to compensation and/or other benefits. During the Closed Sessions on December 11, 2018 and March 26, 2019, the City Council conducted and finalized performance evaluations for the City Attorney and City Clerk. Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk are brought before the Council tonight for consideration and approval. 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; b) Approve and authorize the Mayor to execute a First Amended and Restated Employment Agreement between the City of Newport Beach and City Manager Grace K. Leung, subject to the terms and conditions approved by the City Council; c) Approve and authorize the Mayor to execute a Fifth Amended and Restated Employment Agreement between the City of Newport Beach and City Attorney Aaron Harp, subject to the terms and conditions approved by the City Council; d) Approve and authorize the Mayor to execute a Fifth Amended and Restated Employment Agreement between the City of Newport Beach and City Clerk Leilani Brown, subject to the terms and conditions approved by the City Council; and 18-1 Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk April 9, 2019 Page 2 e) Approve Budget Amendment No. 19BA-037 for $20,184 to enhance salary and benefit accounts for the last six months of FY19 (January 1, 2019 through June 30, 2019). FUNDING REQUIREMENTS: The Budget Amendment (Attachment D) appropriates $20,184 in increased salaries and benefit appropriations from the General Fund unappropriated fund balance. The proposed budget will include sufficient funding for the changes in compensation for the remainder of FY 2018/19. A comprehensive cost estimate associated with the Amended and Restated Employment Agreements amounts to approximately $65,580 and is included as Attachment E to this report. DISCUSSION: City Manager Grace K. Leung was appointed as City Manager on September 4, 2018. Her current employment agreement was approved by the Council on August 14, 2018, and sets forth the terms and conditions of her employment, including benefits and an initial annual salary of $265,000. The attached proposed First Amended and Restated Employment Agreement (Attachment A), provides for a 2% salary adjustment effective April 13, 2019; a one-time bonus of $2,700; a one-time merit payment of $20.38 per paid work day beginning the pay period including January 1, 2019 through and including April 12, 2019; and, the requirement that she contribute all costs associated with her membership in the LIUNA Supplemental Retirement Plan. Aaron Harp has served as the City Attorney since September 6, 2011. His employment is currently governed by a Fourth Amended and Restated Employment Agreement which was approved by the Council on April 25, 2017. That agreement did not provide for a salary adjustment; however, the rate at which Mr. Harp accrued flexible leave was increased from 8.77 hours to 9.69 hours per pay period and he was placed on a 9/80 work schedule. The proposed Fifth Amended and Restated Employment Agreement (Attachment B) calls for a 2% salary adjustment effective April 13, 2019; a one-time bonus of $2,700; a one-time merit payment of $18.29 per paid work day beginning the pay period including January 1, 2019 through and including April 12, 2019; and, the requirement that he contribute all costs associated with his membership in the LIUNA Supplemental Retirement Plan. Leilani Brown has served as the City Clerk since November 22, 2008. Her employment is currently governed by a Fourth Amended and Restated Employment Agreement which provided for an increase of $100 per month to her salary and an auto allowance of $200 per month. Her proposed Fifth Amended and Restated Employment Agreement (Attachment C) provides for a 2% salary adjustment effective April 13, 2019; a one-time bonus of $2,700; a one-time merit payment of $11.29 per paid work day beginning the pay period including January 1, 2019 through and including April 12, 2019; an auto allowance of $400 per month; and, the requirement that she contribute all costs associated with her membership in the LIUNA Supplemental Retirement Plan. 18-2 Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk April 9, 2019 Page 3 Certain other benefits for the City Manager, City Attorney and City Clerk, such as cafeteria allowances, paid leaves, disability and life insurance benefits are tied to the terms and conditions outlined in the City's Key and Management Compensation Plan. Except as provided above and specifically mentioned in their respective proposed amended and restated agreements, the language contained in the appointees' proposed agreements does not alter any of the previously established benefit relationships with the Key and Management Compensation Plan. Attached for consideration are the respective restated and amended employment agreements for the City Manager, City Attorney and City Clerk (Attachments A -C). If approved by the City Council, Human Resources and Finance staff will work together to implement the terms. Consistent with the City Council's stated goal of transparency, the employment agreements also will be published on the City's website and readily available for public review. 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). ATTACHMENTS: Attachment A - First Amended and Restated Employment Agreement between the City of Newport Beach and City Manager Grace K. Leung Attachment B - Fifth Amended and Restated Employment Agreement between the City of Newport Beach and City Attorney Aaron Harp Attachment C - Fifth Amended and Restated Employment Agreement between the City of Newport Beach and City Clerk Leilani Brown Attachment D - Budget Amendment 19BA-037 Attachment E - Estimate of Costs Associated with the Amended and Restated Employment Agreements 18-3 ATTACHMENT A CITY OF NEWPORT BEACH FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY MANAGER This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 9, 2019 ("Effective Date"), and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and GRACE K. LEUNG ("Employee"), an individual (sometimes collectively referred to herein as "the Parties"). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Employee has been continuously employed by City as City Manager since September 4, 2018. Employee is currently employed under an Employment Agreement approved August 14, 2018 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment Agreements shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment, and that there are no other Agreements between them; oral, written or implied. Leung Employment Agreement Page 1 18-4 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non -Renewal A. This Agreement shall become effective April 9, 2019 ("Effective Date"). Subject to the City's right to terminate Employee's employment at any time; as provided for in this Agreement, Section 500 of the City Charter, and NBMC, Section 2.08.050, the term of this Agreement is two (2) years from the Effective Date. B. This Agreement shall automatically be extended for one additional 12 -month period on each annual anniversary of the Effective Date of the Agreement, unless City notifies Employee of its intent not to extend the Agreement at least six (6) months prior to expiration of the original Term, or the Term of any subsequent automatic extension of this Agreement. C. City's election not to extend this Agreement shall not entitle Employee to Severance pursuant to Section 7 of this Agreement. SECTION 2: Duties and Authority Employer agrees to continue to employ Employee as City Manager to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the NBMC and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee at the rate of an annual base salary of Two Hundred and Seventy Thousand and Three Hundred Dollars ($270,300) ("Base Salary"), effective April 13, 2019. The Base Salary shall be subject to deduction and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual Base Salary of Employee is within the approved salary range adopted by resolution of the City Council. Leung Employment Agreement Page 2 18-5 B. Employee shall receive a one-time bonus in the amount of two thousand and seven hundred dollars ($2,700) in the first payroll period after the complete execution of this Agreement. C. Employer shall pay Employee a one-time merit payment of $20.38 per paid work day from the pay period that includes January 1, 2019 through and including April 12, 2019. D. Effective the pay period that includes January 1, 2020, Employee shall receive a Base Salary increase in compensation equal to the lesser of: (1) a two percent (2.0%) salary adjustment; or (2) a cost of living adjustment based on an increase in the "Cost of Living," as defined by Government Code Section 3511.1, as it currently exists or may be modified in the future. 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. [(A- B)/B*100=i, where A=Most recent index B=Corresponding index for one year earlier i=Cost of living adjustment, in percent] E. Employer, by the City Council, and Employee may set mutually agreed upon objectives for each year under this Agreement. Employer, by the City Council, may electto conduct an evaluation of Employee's performance at anytime ortimes during the period in which this Agreement remains in effect. F. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan ("Compensation Plan"), Executive Management category, Years of Continuous Service, less than fifteen (15) years, at the current rate of 8.77 hours per Pay Period. Employee's Maximum accrual for Leung Employment Agreement Page 3 18-6 Flex Leave is limited to four hundred (400) hours. No Flex Leave shall further accrue beyond said maximum. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to eighty (80) hours of paid Administrative Leave per calendar year and shall be credited with said leave the first pay period in January of each calendar year. Administrative Leave will not accrue from calendar year to calendar year and must be used each calendar year or no additional entitlement above eighty (80) hours shall arise or occur. Upon separation from employment, Employee shall be entitled to payment of any hours remaining of the eighty (80) entitled hours that were not used in the calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Unless otherwise provided in this Agreement, Employee shall receive the same benefits as are available to Executive Management Employees under the Compensation Plan and/or Employee Policy Manual ("EPM"), including 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. E. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of One Thousand Two Hundred Fifty Dollars ($1,250). F. Automobile Allowance. Employee's duties require Employee to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee Five Hundred Dollars ($500) per month as an automobile allowance so that Employee may respond to these demands of City business. G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management Employee. H. Attorneys' Fees. Upon the submission of invoices acceptable to the City Attorney, the City shall reimburse Employee for the reasonable, actual legal fees and costs incurred by Employee for legal review of this Agreement, up to a maximum of Four Thousand Dollars ($4,000). Leung Employment Agreement Page 4 18-7 Deferred Compensation. On or before October 31, 2019, Employer shall make a deferred compensation contribution on Employee's behalf in the amount of Five Thousand and Three Hundred Dollars ($5,300) ("Deferred Compensation Contribution"). Thereafter, provided Employee is employed by Employer on the anniversary date of this Original Agreement (i.e. September 4), Employer shall make a Deferred Compensation Contribution on Employee's behalf on or before October 31 of the applicable year, so long as Employee is still employed on the anniversary date of this Agreement. J. Amendment of Benefits. Except as expressly provided in this Section, Employee's benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees. K. Retirement - CalPERS. Employee is a California Public Employees' Retirement System ("CaIPERS") classic member. Employee is enrolled in the City's Tier 2 "Classic" CaIPERS retirement program. Employee contributes thirteen percent (13%) of compensation earnable towards Employee's retirement benefit which is designated as follows: 7% of Employee/Member's total PERSable salary as the Employee/Member Contribution and 6% as cost sharing of the Employer Contribution Rate in accordance with Government Code section 20516(f). In the event the City Council adopts a Compensation Plan in which retirement contributions for non -safety members of the Key & Management Group exceeds 13.00%, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it is applied to the non -safety members of the Key & Management Group covered under the Compensation Plan and for the same duration. In no event shall the Employee's retirement contribution be less than 13.00%. Employee retirement contributions that are in addition to the normal PERS Member Contribution shall be calculated on Base Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent allowable by the Government Code. L. Supplemental Pension. Employee is a member of the LIUNA Supplemental Pension Fund ("Plan"). Effective in the pay period which includes January 1, 2019, the Plan will be funded exclusively by contributions from the members. The City will not make any contributions to the Plan. In addition, as there are increases (which typically occur annually) to the costs (whether identified as employer or employee contributions) to fund the Plan, they will be made by Employee (i.e., the participants in the Plan). The City is not responsible for, nor does it make any representation regarding, the payment of benefits to Employee. Leung Employment Agreement Page 5 18-8 Employee cannot receive the contributed amounts directly instead of having them paid to the Plan. Participation in the Plan will continue to be mandatory for Employee. Employees who leave City employment prior to vesting in the LIUNA pension plan will have no right to the return of amounts contributed, or other recourse against the City concerning LIUNA. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees 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 Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. Employer agrees to budget and pay for professional dues, membership and subscriptions of Employee necessary for continuation and participation in the International City/County Management Association (ICMA), Cal-ICMA, the California City Manager's Foundation (CCMF), and state and national League of Cities and such other organizations as Employer and Employee may agree from time to time. Employer also agrees to pay the cost of a corporate surety bond as contemplated by section 503 of the City Charter. C. Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and participation in meetings, institutes, training programs, conferences, conventions and similar gatherings that support leadership development and the advancement of Employer and Employee's mutually agreed upon goals, and which are related to Employee's duties or Employer's operations and held in the continental United States. For purposes of this paragraph, reasonable expenses are limited to the reasonable and actual cost of registration, coach -class airfare (where applicable), ground transportation and meals. Reasonable expenses will also include the reasonable and actual cost of lodging for meetings outside of Orange County. D. The expenses to be budgeted and paid in the Section 5, Paragraphs A, B, and C above, are exclusive of reasonable expenses related to events, participation Leung Employment Agreement Page 6 18-9 in organizations, or attendance at events or meetings on behalf of the City as required by the City Council. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 6: At -Will Employment Relationship A. Consistent with Article V of the City Charter, Section 500, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without Cause (as defined below), and with or without notice. Employer shall pay Employee for all services through the Effective Date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 7, below. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from Employee's employment with Employer, subject only to Employee providing a minimum of forty-five (45) calendar days, prior written notice to Employer of the effective date of Employee's resignation. Upon the effective date of resignation, Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential "Severance" pay per Section 7 below. SECTION 7: Severance and Benefit Payoff at Termination, and Agreement of Separation, Severance, and General Release A. Termination without Cause. If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the Agreement of Separation, Severance, and General Release in the form attached hereto as Exhibit A, then Employer shall pay Employee a lump sum benefit equal to six (6) months of Employee's 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. Leung Employment Agreement Page 7 18-10 The lump sum payment described in this Section 7(A) shall be referred to herein as "Severance". Termination with Cause. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subparts 5 or 6 immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall only mean any of the following: 1. Conviction of afelony; 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code section 53243.4; 4. Willful abandonment of duties; 5. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and 6. Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. (NBMC section 506) D. If Employee resigns or otherwise terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. Leung Employment Agreement Page 8 18-11 E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave and unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote Employee's full energies, interest, abilities and productive time to the performance of this Agreement and utilize Employee's best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's Base Salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours. SECTION 9: Confidentiality and Non -Disparagement A. Employee acknowledges that in the course of Employee's employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information"). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, 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 Leung Employment Agreement Page 9 18-12 release or statement in response to any inquiry Nothing herein shall prohibit any Council Member or Employee from exercising their rights under the First Amendment to the United States Constitution. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with Employee's duties and responsibilities to Employer. (Cal. Govt. Code section 1126) SECTION 11: Indemnification A. To the extent mandated by the California Government Code, the City shall defend, hold harmless, and indemnify Employee against any tort, professional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of Employee's services under this Agreement. This section shall not apply to any intentional tort or crime committed by Employee, to any action outside the course and scope of the services provided by Employee under this Agreement, or any other intentional or malicious conduct or gross negligence of Employee. (Cal. Govt. Code sections 825, 995, et. seq.) B. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of Employee's office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. Leung Employment Agreement Page 10 18-13 SECTION 13: Notices A. Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Grace K. Leung at the home address then shown in Employer's files B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing. SECTION 14: General Provisions A. Integration. This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The Parties by mutual written agreement may amend any provision of this Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, Employee's employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and Employee's employment is, and will continue to be, at the will of the City Council. B. 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. Leung Employment Agreement Page 11 18-14 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 Employee has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that Employee has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that Employee has been advised to obtain, and has availed himself or herself of legal advice with respect to the terms and provisions of this Agreement. (Signatures on Following Page) Leung Employment Agreement Page 12 18-15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation Diane B. Dixon, Mayor Date: APPROVED AS TO FORM: THE ZAPPIA LAW FIRM A Professional Corporation By: Iq Edward P. Zappda,4, Outside Counsel City of Newport Date: j7 I I ATTEST: In Leilani Brown, City Clerk Date: EMPLOYEE An Individual Grace K. Leung Date: [End of Signatures] Attachment: Exhibit A — General Release Agreement Leung Employment Agreement Page 13 18-16 Exhibit A GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between GRACE K. LEUNG ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the First Amended and Restated Employment Agreement effective April 9, 2019, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. Page 14 18-17 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees. Page 15 18-18 Dated 20 CITY OF NEWPORT BEACH Dated: 20 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp, City Attorney Date: ATTEST: Leilani Brown, City Clerk Date: Grace K. Leung Page 16 18-19 ATTACHMENT B FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY ATTORNEY This FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 9, 2019 ("Effective Date") and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and AARON C. HARP ("Employee") an individual, (sometimes collectively "the Parties"). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Employee has been continuously employed by City as City Attorney since September 6, 2011. Employee is currently employed under a Fourth Amended and Restated Employment Agreement dated on or about April 25, 2017 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment Agreements shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment, and that there are no other Agreements between them; oral, written or implied. Harp Employment Agreement Page 1 18-20 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non -Renewal A. This Agreement shall become effective April 9, 2019 ("Effective Date"). Subject to the City's right to terminate Employee's employment at any time, as provided for in this Agreement, the term of this Agreement is two (2) years from the Effective Date. B. This Agreement shall automatically be extended for one additional 12 -month period on each annual anniversary of the Effective Date of the Agreement, unless City notifies Employee of its intent not to extend the Agreement at least six (6) months prior to expiration of the original Term, or the Term of any subsequent automatic extension of this Agreement. C. City's election not to extend this Agreement shall not entitle Employee to Severance pursuant to Section 7 of this Agreement. SECTION 2: Duties and Authority Employer agrees to continue to employ Employee as City Attorney, to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the Municipal Code and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation. A. Employer agrees to pay Employee an annual base salary of $242,556 (Two hundred and forty two thousand and five hundred and fifty six) ("Base Salary"), effective April 13, 2019, subject to deductions and withholdings of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual Base Salary of Employee is within the approved salary range adopted by resolution of the City Harp Employment Agreement Page 2 18-21 Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employee shall receive a one-time bonus in the amount of two thousand and seven hundred dollars ($2,700) in the first payroll period after the complete execution of this Agreement. C. Employer shall pay Employee a one-time merit payment of $18.29 per paid work day from the pay period that includes January 1, 2019 through and including April 12, 2019. D. Effective the pay period that includes January 1, 2020, Employee shall receive a Base Salary increase in compensation equal to the lesser of: (1) a two percent (2.0%) salary adjustment; or (2) a cost of living adjustment based on an increase in the "Cost of Living" as defined by Government Code Section 3511.1, as it currently exists or may be modified in the future. 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. [(A- B)/B*100=i, where A=Most recent index B=Corresponding index for one year earlier i=Cost of living adjustment, in percent] E. Employer, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. F. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and his leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. Harp Employment Agreement Page 3 18-22 B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Plan"), at the rate of 9.69 hours per Pay Period. Employee's maximum accrual for Flex Leave is limited to 400 (four hundred) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to 80 hours of paid Administrative Leave per calendar year (January 1 through December 31). Administrative Leave does not accrue from calendar year to calendar year, and must be used, or lost, at the conclusion of each calendar year. There is no cash value for Administrative Leave and will not be paid out upon Employee request or separation from the City. D. Additional Benefits. Unless otherwise provided in this Agreement, Employee shall receive the same benefits as are available to Executive Management Employees under the Compensation Plan and/or 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. E. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of $1,000 (One thousand dollars). F. Automobile Allowance. Employee's duties require him to be available and to respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 (Five hundred dollars) per month as an automobile allowance so that Employee may respond to these demands of City business. G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. Amendment of Benefits. Employee's benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. Harp Employment Agreement Page 4 18-23 I. Retirement - CalPERS. Employee contributes thirteen percent (13%) of compensation earnable towards Employee's retirement benefit, which is designated as follows: 8% of Employee/Member's total PERSable salary as the Employee/Member Contribution; and 2.42% and 2.58% as cost sharing of the Employer Contribution Rate in accordance with Government Code sections 20516(a) and 20516(f) respectively. The Parties agree that the City will not report as special compensation the value of any Employer Paid Member Contribution. In the event the City Council adopts a Compensation Plan in which retirement contributions for non -safety members of the Key & Management Group exceeds 13.00%, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it is applied to the non -safety members of the Key & Management Group covered under the Compensation Plan and for the same duration. In no event, shall the Employee's retirement contribution be less than 13.00%. Employee retirement contributions that are in addition to the normal PERS Member Contribution shall be calculated on Base Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent allowable by the Government Code. J. Supplemental Pension. Employee is a member of the LIUNA Supplemental Pension Fund ("Plan"). Effective in the pay period which includes January 1, 2019, the Plan will be funded exclusively by contributions from the members. The City will not make any contributions to the Plan. In addition, as there are increases (which typically occur annually) to the costs (whether identified as employer or employee contributions) to fund the Plan, they will be made by Employee (i.e., the participants in the Plan). The City is not responsible for, nor does it make any representation regarding, the payment of benefits to Employee. Employee cannot receive the contributed amounts directly instead of having them paid to the Plan. Participation in the Plan will continue to be mandatory for Employee. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such Harp Employment Agreement Page 5 18-24 other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. City shall reimburse Employee for expenses incurred in his attending a reasonable number of League of Cities and other similar conferences relevant to the performance of his duties. City shall pay Employee's annual California Bar Association dues, membership in the Orange County Bar Association and appropriate sections of that Association, and the expenses of his satisfying his Mandatory Continuing Legal Education ("MCLE") obligations. It is not contemplated that out -of -Orange County travel will be required for Employee to meet his MCLE obligations. C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Council. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without Cause (as defined below), and with or without notice. Employer shall pay Employee for all services through the Effective Date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer, subject only to Employee providing a minimum of forty-five (45) calendar days 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. Harp Employment Agreement Page 6 18-25 SECTION 7: Severance and Benefit Payoff at Termination, and General Release Agreement A. Without Cause: If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay Employee beginning on the effective date of termination a lump sum benefit equal to six (6) months of his then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the City medical benefits plan at time of termination (collectively, "Severance"). B. With Cause: If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subparts 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code Section 53243.4; 4. Willful abandonment of duties; 5. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and Harp Employment Agreement Page 7 18-26 6. Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. Resignation: If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work A. Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall during normal business hours, subject to paragraph B of this Section, below. B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1) of the Employee Policy Manual and referred to in Miscellaneous Section (D) of the Compensation Plan. However, as City Attorney, Employee shall not take a 9/80 day: (1) on any Monday or Friday immediately preceding a regularly scheduled City Council Meeting; (2) on the same day as the Assistant City Attorney takes a 9/80 day off; or (3) any other day where the press of business Harp Employment Agreement Page 8 18-27 requires Employee's attendance, in Employee's good faith judgment, such as court appearances or emergency City Council meetings. SECTION 9: Confidentiality and Non -Disparagement A. Employee acknowledges that in the course of his employment contemplated herein, Employee will be given or will have access to privileged, confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information"). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities A. Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with, incompatible with, or inimical to, or which materially interferes with his duties and responsibilities to Employer. (Cal. Govt. Code 1125 — 1129.) SECTION 11: Indemnification A. Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against Harp Employment Agreement Page 9 18-28 expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event Employer determines that there is a conflict of interest between Employer and Employee and independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. (Cal. Govt. Code sections 825, 995, et. seq.) B. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices A. Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Aaron C. Harp at the home address then shown in Employer's files Harp Employment Agreement Page 10 18-29 B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Council. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. Harp Employment Agreement Page 11 18-30 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 next page] Harp Employment Agreement Page 12 18-31 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, EMPLOYEE, A Municipal Corporation An Individual 0 Diane B. Dixon, Mayor Date: APPROVED AS TO FORM: By: _ _q Edward P. Za pia THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: By: Leilani Brown City Clerk Date: Aaron C. Harp Date: Date: [End of Signatures] Attachment: Exhibit A — General Release Agreement Harp Employment Agreement Page 13 18-32 Exhibit A GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between AARON C. HARP ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with his legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to him through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to him as a result of his employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. Page 14 18-33 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the current Fifth Amended and Restated Employment Agreement dated April 9, 2019, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing him as a result of his employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with Employer which he now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER Page 15 18-34 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor. Employee further acknowledges that he has read this General Release and that he understands that this is a general release, and that he intends to be legally bound by the same. 4. Fees. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover his/its reasonable attorneys' fees. [Signatures on Next Page] Page 16 18-35 Dated , 20_ By: Dated: 20 By: Date: ATTEST: By: City Clerk Date: CITY OF NEWPORT BEACH Aaron C. Harp Page 17 18-36 ATTACHMENT C FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY OF NEWPORT BEACH CITY CLERK This FIFTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of April 9, 2019 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and LEILANI I. BROWN ("Employee"), an individual (sometimes collectively referred to herein as "the Parties"). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. Employee has been continuously employed by City as City Clerk since November 22, 2008. Employee is currently employed under a Fourth Amended and Restated Employment Agreement dated on or about April 25, 2017 ("Employment Agreement"). C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment 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. Brown Employment Agreement Page 1 18-37 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term and Notice of Non -Renewal A. This Agreement shall become effective April 9, 2019 ("Effective Date"). Subject to the City's right to terminate Employee's employment at any time, as provided for in this Agreement, the term of this Agreement is two (2) years from the Effective Date. B. This Agreement shall automatically be extended for one additional 12 -month period on each annual anniversary of the Effective Date of the Agreement, unless City notifies Employee of its intent not to extend the Agreement at least six (6) months prior to expiration of the original Term, or the Term of any subsequent automatic extension of this Agreement. C. City's election not to extend this Agreement shall not entitle Employee to Severance pursuant to Section 7 of this Agreement. SECTION 2: Duties and Authority Employer agrees to continue to employ Employee as City Clerk, to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the Municipal Code and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation A. Employer agrees to pay Employee an annual base salary of $149,685 (One Hundred Forty Nine Thousand and Six Hundred and Eighty Five Dollars) ("Base Salary"), effective April 13, 2019, subject to deduction and withholding of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual Base Salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Brown Employment Agreement Page 2 18-38 Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employee shall receive a one-time bonus in the amount of two thousand and seven hundred dollars ($2,700) in the first payroll period after the complete execution of this Agreement. C. Employer shall pay Employee a one-time merit payment of $11.29 per paid work day from the pay period that includes January 1, 2019 through and including April 12, 2019. D. Effective the pay period that includes January 1, 2020, Employee shall receive a Base Salary increase in compensation equal to the lesser of: (1) a two percent (2.0%) salary adjustment; or (2) a cost of living adjustment based on an increase in the "Cost of Living" as defined by Government Code Section 3511.1, as it currently exists or may be modified in the future. 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. [(A- B)/B*100=i, where A=Most recent index B=Corresponding index for one year earlier i=Cost of living adjustment, in percent] E. Employer, by the City Council, and Employee may set mutually -agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect. F. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Benefit Balances Carried Over. Employee shall not have a break in employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ("Compensation Brown Employment Agreement Page 3 18-39 Plan"), at the current rate of 9.69 hours per Pay Period. Employee's maximum accrual for Flex Leave is limited to four hundred (400) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to 80 hours of paid Administrative Leave per calendar year (January 1 through December 31). Administrative Leave does not accrue from calendar year to calendar year, and must be used, or lost, at the conclusion of each calendar year. There is no cash value for Administrative Leave and will not be paid out upon Employee request or separation from the City. D. Additional Benefits. Unless otherwise provided in this Agreement, Employee shall receive the same benefits as are available to Executive Management Employees under the Compensation Plan and/or 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. E. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of $1,000 (One Thousand Dollars). F. Automobile Allowance. Employee's duties require her to be available and to respond to demands of City business outside of regular business hours on occasion. Employer shall, therefore, pay to Employee $400 (Four Hundred Dollars) per month as an automobile allowance so that Employee may respond to these demands of City business. G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. H. Amendment of Benefits. Employees benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. Retirement - CaIPERS. Employee contributes thirteen percent (13%) of compensation earnable towards Employee's retirement benefit, which is designated as follows: 8% of Employee/Member's total PERSable salary as the Employee/Member Contribution; and 2.42% and 2.58% as cost sharing of the Employer Contribution Rate in accordance with Government Code sections 20516(a) and 20516(f) respectively. Brown Employment Agreement Page 4 18-40 The Parties agree that the City will not report as special compensation the value of any Employer Paid Member Contribution. In the event the City Council adopts a Compensation Plan in which retirement contributions for non -safety members of the Key & Management Group exceeds 13.00%, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it is applied to the non -safety members of the Key & Management Group covered under the Compensation Plan and for the same duration. In no event shall the Employee's retirement contribution be less than 13.00%. Employee retirement contributions that are in addition to the normal PERS Member Contribution shall be calculated on Base Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent allowable by the Government Code. J. Supplemental Pension. Employee is a member of the LIUNA Supplemental Pension Fund ("Plan"). Effective in the pay period which includes January 1, 2019, the Plan will be funded exclusively by contributions from the members. The City will not make any contributions to the Plan. In addition, as there are increases (which typically occur annually) to the costs (whether identified as employer or employee contributions) to fund the Plan, they will be made by Employee (i.e., the participants in the Plan). The City is not responsible for, nor does it make any representation regarding, the payment of benefits to Employee. Employee cannot receive the contributed amounts directly instead of having them paid to the Plan. Participation in the Plan will continue to be mandatory for Employee. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non -personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. City shall reimburse Employee for expenses she incurs attending a reasonable number of League of Cities and other similar conferences relevant to the performance of her duties. C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, Brown Employment Agreement Page 5 18-41 or attendance at events or meetings on behalf of the City as required by the City Council. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 6: At -Will Employment Relationship A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without Cause (as defined below), and with or without notice. Employer shall pay Employee for all services through the Effective Date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from her employment with Employer, subject only to Employee providing a minimum of forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. On 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. SECTION 7: Severance and Benefit Payoff at Termination, and General Release Agreement A. Without Cause: If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay Employee beginning on the effective date of termination a lump sum benefit equal to six (6) months of her then applicable Base Salary, and shall provide six (6) months of medical coverage as provided under the Compensation Plan as long as employee is already enrolled and receiving medical coverage through the City medical benefits plan at time of termination (collectively, "Severance"). B. With Cause: If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in Brown Employment Agreement Page 6 18-42 subpart 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code section 53243.4; 4. Willful abandonment of duties; 5. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and 6. Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. Resignation: If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work A. Employee shall devote her full energies, interest, abilities and productive time to the performance of this Agreement and utilize her best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Brown Employment Agreement Page 7 18-43 Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours, subject to paragraph B of this Section, below. B. Employee is authorized to work the 9/80 schedule as defined in the City's Employee Policy Manual and referred to in the City's Key and Management Compensation Plan. SECTION 9: Confidentiality and Non -Disparagement A. Employee acknowledges that in the course of Employee's employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information"). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with, incompatible with, or inimical to, or which materially interferes with her duties and responsibilities to Employer. (Cal. Govt. Code 1125, et. seq.) Brown Employment Agreement Page 8 18-44 SECTION 11: Indemnification A. Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event Employer determines there is a conflict of interest between Employer and Employee and independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. (Cal. Govt. Code sections 825, 995, et. seq.) B. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices A. Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Manager 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Leilani I. Brown at the home address then shown in Employer's files Brown Employment Agreement Page 9 18-45 B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after mailing. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the Parties are merged into this Agreement or are otherwise rendered null and void. The Parties, by mutual written agreement, may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, her employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and her employment is, and will continue to be, at the will of the City Council. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that she has had the opportunity and has conducted an independent review of the financial and legal Brown Employment Agreement Page 10 18-46 effects of this Agreement. Employee acknowledges that she has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that she has been advised to obtain, and has availed herself of, legal advice with respect to the terms and provisions of this Agreement. [Signatures on Next Page.] Brown Employment Agreement Page 11 18-47 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 Municipal Corporation Bv: EMPLOYEE, An Individual Bv: Diane B. Dixon, Mayor Leilani I. Brown Date: Date: APPROVED AS TO FORM: An Edward P. appia THE ZAPP,4 LAW FIRM A Professional Corporation ATTEST: go Jennifer Nelson Assistant City Clerk Date: Date: q ) r� ) � I [End of Signatures] Attachment: Exhibit A — General Release Agreement Brown Employment Agreement Page 12 18-48 Exhibit A GENERAL RELEASE AGREEMENT This General Release Agreement ("Agreement") is entered into by and between LEILANI BROWN ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that she has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with her legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), she may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to her through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether she signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to her as a result of her employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to her, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Fifth Amended and Restated Employment Agreement dated April 9, 2019, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing her as a result of her employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, Page 13 18-49 employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of her employment with Employer which she now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which she does not know or suspect to exist in her favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover her/its reasonable attorneys' fees. [Signatures on Next Page.] Page 14 18-50 Dated , 20_ By: Dated: .20 APPROVED AS TO FORM: Date: ATTEST: IS Assistant City Clerk Date: CITY OF NEWPORT BEACH Leilani Brown Page 15 18-51 This budget amendment is requested to provide for the following: To increase salaries and benefit expenditure appropriations from General Fund unappropriated fund balance to provide funding levels commensurate with the new agreement with appointed employees at the City of Newport Beach. The budget amendment provides the additional funding needed for the first six months of the agreement. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE ATTACHMENT D City of Newport Beach Description NO. BA- 19BA-037 BUDGET AMENDMENT General Fund - Unappropriated Fund Balance REVENUE ESTIMATES 2018-19 AMOUNT: $20,183.96 EFFECT ON BUDGETARY FUND BALANCE: Description Increase Revenue Estimates Increase in Budgetary Fund Balance X Increase Expenditure Appropriations ANDX Description Decrease in Budgetary Fund Balance Transfer Budget Appropriations CITY CLERK -SALARIES MISC No effect on Budgetary Fund Balance SOURCE: ONE-TIME? from existing budget appropriations X Yes from additional estimated revenues 722001 No X from unappropriated fund balance 723002 CITY CLERK -PENSION NORMAL COST EXPLANATION: 724001 CITY CLERK -EE PENSION CONTRIBUTION This budget amendment is requested to provide for the following: To increase salaries and benefit expenditure appropriations from General Fund unappropriated fund balance to provide funding levels commensurate with the new agreement with appointed employees at the City of Newport Beach. The budget amendment provides the additional funding needed for the first six months of the agreement. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object Description 010 300000 General Fund - Unappropriated Fund Balance REVENUE ESTIMATES Org Object Project Description EXPENDITURE APPROPRIATIONS Org Obiect Project Description 01010005 711001 CITY CLERK -SALARIES MISC 01010005 714001 CITY CLERK -LUMP SUM PAYMENT 01010005 727001 CITY CLERK -CAR ALLOWANCE 01010005 722001 CITY CLERK -PENSION MEMBER CONTRIB 01010005 723002 CITY CLERK -PENSION NORMAL COST 01010005 724001 CITY CLERK -EE PENSION CONTRIBUTION 01010005 727016 CITY CLERK -MEDICARE FRINGES 01015005 711001 CITY ATTY-SALARIES MISC 01015005 714001 CITY ATTY-LUMP SUM PAYMENT 01015005 722001 CITY ATTY-PENSION MEMBER CONTRIB 01015005 723002 CITY ATTY-PENSION NORMAL COST 01015005 724001 CITY ATTY-EE PENSION CONTRIBUTION 01015005 727016 CITY ATTY-MEDICARE FRINGES 01020005 711001 CITY MGR -SALARIES MISC 01020005 714001 CITY MGR -LUMP SUM PAYMENT 01020005 722001 CITY MGR -PENSION MEMBER CONTRIB 01020005 723002 CITY MGR -PENSION NORMAL COST 01020005 724001 CITY MGR -EE PENSION CONTRIBUTION 01020005 727016 CITY MGR -MEDICARE FRINGES Signed: / V6 __ Financial Approval: nance Director Signed: City Council Approval: City Clerk Amount Debit Credit $20,183.96 " $1,467.50 $3,569.21 $1,200.00 $152.91 $101.76 $190.78 $90.43 $2,378.00 $4,108.51 $247.79 $164.89 $309.14 $94.05 $2,650.00 $4,269.61 $185.50 $247.88 $344.50 $100.33 Automatic System Entry. Date Date 18-52 ATTACHMENT E Newport Beach Appointed Positions, 2% COLA per year, $2,700 one-time bonus (nonPERSable), one-time merit pay (nonPERSable), & Employees pay Supplemental Retirement (LIUNA) sg, 4/1/19 3 Authorized Full-time Miscellaneous Appointed Employees Tier 1: 2 Tier 2: 1 FY 19 Adopted Tier 3: 0 Budget Year 1- 2% Year 2 - 2% Total Cost Base Pay Miscellaneous Supplemental Pay Car Allowance' Pension Contribution z Pension Cost Pension Unfunded Actuarial Liability (21.480%) Other City Paid Benefits MediCare (mandatory payment of 1.45%) Compensated Absences Cafeteria Plan Employee Assistance Program (EAP) Smartphone Allowance Life Insurance (policy based on annual base pay with cap of $50,000) Tuition Reimbursement (based on calendar year 2018 actual) Retiree Health Savings (Post Employment Healthcare Contribution) Supplemental Retirement Program (LIUNA- EE 1.5%& ER 1.16%) NonPERSable Merit Pay NonPERSable Lump Sum Payment Offset - Employee Pick Up of PERS Pension Costs (13.0%) Estimate is based on Fiscal Year 2019 Adopted Budget 649,550 12,991 26,242 39,233 Subtotal 649,550 12,991 26,242 39,233 14,400 2,400 2,400 4,800 Subtotal 14,400 2,400 2,400 4,800 110,073 1,354 2,734 4,088 139,523 2,790 5,637 8,427 Subtotal 249,596 4,144 8,371 12,515 9,627 396 415 812 22,734 455 918 1,373 66,996 - - - 62 2,880 315 3,660 7,735 - - - 3,847 3,847 - 8,100 - 8,100 Subtotal 114,010 12,798 1,334 14,132 (84,442) (1,689) (3,411) (5,100) Subtotal (84,442) (1,689) (3,411) (5,100) Total 943,115 30,645 34,935 65,580 Salary Only 2.00% 4.04% Total Comp 3.25% 3.70% ' Car allowance increase is for City Clerk and is effective when the contract is signed. z Pension contribution calculated by tier; rates presented are averaged tier rates from actuarial valuation. 18-53