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HomeMy WebLinkAbout15 - Amended and Restated Employment Agreements for City Manager, City Attorney and City ClerkQ SEW Pp�T CITY OF z NEWPORT BEACH c�<,FORN'P City Council Staff Report January 26, 2021 Agenda Item No. 15 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@newportbeachca.gov PHONE: 949-644-3300 TITLE: Resolution No. 2021-8: 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 October 27, 2020, November 24, 2020 and January 12, 2021, the City Council conducted performance evaluations of the Appointees. Amended and Restated Employment Agreements ("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) Adopt Resolution No. 2021-8, A Resolution of the City Council of the City of Newport Beach, California, Modifying the Salary Ranges for the City Manager, City Attorney and City Clerk; c) Approve and authorize the Mayor to execute a Second 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; d) Approve and authorize the Mayor to execute a Sixth 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; 15-1 Resolution No. 2021-8: Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk January 26, 2021 Page 2 e) Approve and authorize the Mayor to execute a Sixth 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 f) Approve Budget Amendment No. 21 BA -026 for $18,031 to enhance salary and benefit accounts for the last six months of FY 2020-21 (January 1, 2021 through June 30, 2021). FUNDING REQUIREMENTS: The Budget Amendment (Attachment E) appropriates $18,301 in increased salaries and benefits from the General Fund unappropriated fund balance. A comprehensive estimate of the costs associated with the Employment Agreements is provided with this report (Attachment F). The proposed budget for FY 2021-22 will include sufficient funding for the changes in compensation. DISCUSSION: City Manager Grace K. Leung was appointed as City Manager on September 4, 2018. Ms. Leung's current First Amended and Restated Employment Agreement was approved by the City Council on April 9, 2019. That Employment Agreement provided 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. The proposed Second Amended and Restated Employment Agreement (Attachment B) provides for an annual base pay adjustment of 2% effective the first day of the pay period following Council approval of the Agreement, base pay adjustments beginning the pay period which includes January 1, 2022, and annually thereafter, which will be the lesser of 2% or the "Cost of Living" as defined by Government Code Section 3511.1; a one-time, lump sum bonus of $636; and, bi-weekly City -contributions to Employee's City -sponsored deferred compensation account, which will not exceed $19,500 per calendar year. Aaron Harp has served as the City Attorney since September 6, 2011. His employment is currently governed by a Fifth Amended and Restated Employment Agreement which was approved by the Council on April 9, 2019. That Agreement provided for a 2% salary adjustment; 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. The proposed Sixth Amended and Restated Employment Agreement (Attachment C) provides for an annual base pay adjustment of $252,500 (2.058% increase) effective the first day of the pay period following the approval of the Agreement, base pay adjustments beginning the pay period which includes January 1, 2022, and annually thereafter, which will be the lesser of 2% or the "Cost of Living" as defined by Government Code Section 3511.1; a one-time, lump sum bonus of $588; and, bi-weekly City -contributions of $200 to Employee's City - sponsored deferred compensation account. 15-2 Resolution No. 2021-8: Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk January 26, 2021 Page 3 Leilani Brown has served as the City Clerk since November 22, 2008. Her employment is currently governed by a Fifth Amended and Restated Employment Agreement which provided 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. The proposed Sixth Amended and Restated Employment Agreement (Attachment D) provides for an annual base pay adjustment of 2% effective the first day of the pay period following Council approval of the Agreement; base pay adjustments beginning the pay period which includes January 1, 2022, and annually thereafter, which will be the lesser of 2% or the "Cost of Living" as defined by Government Code Section 3511.1; a one-time, lump sum bonus of $352; and, bi-weekly City -contributions to Employee's City -sponsored deferred compensation account as follows: Effective the pay period following Council approval of the Agreement, the City will contribute an amount equal to 1% of Employee's base salary. Effective the pay period which includes January 1, 2022, the City will contribute an amount equal to 1.5% of Employee's base salary. Certain other benefits for the City Manager, City Attorney and City Clerk, such as cafeteria allowances, paid leaves, retirement and supplemental retirement plans, disability and life insurance benefits are tied to the terms and conditions outlined in the City's Key and Management Compensation Plan. Except as referenced above and specifically identified in their respective proposed Amended and Restated Employment Agreements, the language contained in the Appointees' proposed Employment 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 B -D). 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. 15-3 Resolution No. 2021-8: Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk January 26, 2021 Page 4 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 — Resolution No. 2021-8 Attachment B — Second Amended and Restated Employment Agreement between the City of Newport Beach and City Manager Grace K. Leung Attachment C — Sixth Amended and Restated Employment Agreement between the City of Newport Beach and City Attorney Aaron Harp Attachment D — Sixth Amended and Restated Employment Agreement between the City of Newport Beach and City Clerk Leilani Brown Attachment E — Budget Amendment Attachment F — Estimate of Costs Associated with the Amended and Restated Employment Agreements 15-4 ATTACHMENT A RESOLUTION NO. 2021-8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, MODIFYING THE SALARY RANGES FOR THE CITY MANAGER, CITY ATTORNEY AND CITY CLERK WHEREAS, Newport Beach Municipal Code Section 2.28.010 authorizes the City Council of the City of Newport Beach ("City Council") to establish terms of employment, including compensation and benefits, for City of Newport Beach ("City") employees; WHEREAS, the City Council previously adopted Resolution No. 2017-32 which, among other things, revised the salary ranges for the City Clerk, a non -represented Executive Management employee and established auto allowances for the City Manager, City Attorney and City Clerk; WHEREAS, subsequent to the adoption of Resolution No. 2017-32, the City Council adopted Resolution No. 2019-35, the Key and Management Compensation Plan (the "2019 Plan"), establishing compensation and benefits terms for unrepresented employees, including Executive Management, Administrative Management, Division Management and Confidential employees for the period of January 1, 2019 through December 31, 2021; WHEREAS, the 2019 Plan provides that the salary ranges for City Manager, City Attorney and City Clerk (hereinafter referred to as "the Appointees") are modified by any cost of living adjustments received by Key and Management employees; WHEREAS, the City Council has evaluated the Appointee agreements and wishes to enter into multi-year agreements with them which provide for annual base wage adjustments; WHEREAS, the newly negotiated Appointee agreements contain base wage adjustments which may exceed their current salary ranges, even as modified by the cost of living adjustments set forth in the 2019 Plan; and WHEREAS, the City Council wishes to modify the salary ranges for the Appointees by the amount(s) needed to provide enough movement to accommodate the base wage increases set forth in their respective employment agreements, as adjusted from year to year. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: 15-5 Resolution No. 2021 - Page 2 of 3 Section 1: The recitals provided above are true and correct and are incorporated into the operative part of this resolution. Section 2: Any resolution or action in conflict herewith, whether by minute action or resolution of the City Council heretofore approved, is hereby repealed. Section 3: The salary range for the City Manager, City Attorney and City Clerk shall be as reflected in Exhibit A hereto, which is incorporated herein by this reference. Section 4: Effective the pay period following the adoption of this Resolution, the salary ranges for the Appointees, as set forth in Exhibit A, shall be adjusted by two percent (2%) to provide sufficient room to accommodate the annual percentage increases in their "Base Salary" as set forth in their respective Appointees' Employment Agreements. Thereafter, the salary ranges for the Appointees will be adjusted by two percent (2%) at the time of the City's annual budget adoption. Section 5: The City's Salary Schedule shall be modified as needed to be consistent with this Resolution. Section 6: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared invalid or unconstitutional. Section 7: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQK) 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, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 15-6 Section 8: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 26th day of January, 2021. Brad Avery Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney Attachment: Exhibit A — Salary Schedule Adjustment 15-7 Exhibit A The City of Newport Beach CITY COUNCIL APPOINTEES Salary Schedule Adjustment Revision Date: January 30, 2021 Adjustment: 2.0% Increase to Salary Rangel Effective January 30, 2021 Position Title Minimum Annual Salary` Maximum Annual Salary` City Manager $ 203,734 $ 305,591 City Attorney $ 171,617 $ 257,403 City Clerk $ 106,090 $ 159,124 Current Range, Effective December 19, 2020 Position Title Minimum Annual Salary` Maximum Annual Salary` City Manager $ 199,740 $ 299,599 City Attorney $ 168,252 $ 252,355 City Clerk $ 104,010 $ 156,004 1 The cost of living adjustment will apply to the salary ranges only for these positions. A change to the compensation for these positions is determined by the Employees' Employment Agreement. Z Annual salary rates are rounded to the nearest dollar. 15-8 ATTACHMENT B CITY OF NEWPORT BEACH SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY MANAGER This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of January 26, 2021 ("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 the City. B. Employee has been continuously employed by City as City Manager since September 4, 2018. Employee is currently employed under a First Amended and Restated Employment Agreement approved April 9, 2019 ("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 Second Amended and Restated Employment Agreement Page 1 15-9 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 January 26, 2021 ("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 Newport Beach Municipal Code ("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 A. 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 Newport Beach Municipal Code ("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 an annual base salary of Two Hundred, Eighty -One Thousand, Two Hundred and Twenty Dollars ($281,220) ("Base Salary"), which is a 2% increase, effective on the first day of the pay period following approval of the Agreement. The Base Salary shall be 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 Leung Second Amended and Restated Employment Agreement Page 2 15-10 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. B. Effective the pay period which includes January 1, 2022, and annually thereafter; Employee shall receive a Base Salary increase 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 the California Government Code ("Government Code" or "GOV") 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]. C. Employee shall receive a one-time, lump sum bonus in the amount of Six Hundred, Thirty -Six Dollars ($636) in the first payroll period after the complete execution of this Agreement. D. 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. E. 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 Employee 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, at the rate designated for Employee's years of Leung Second Amended and Restated Employment Agreement Page 3 15-11 service. Employee's maximum accrual for 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, LEAVES, Section H - Leave Sellback. C. Administrative Leave. Employee shall be entitled to a maximum of eighty (80) hours of paid Administrative Leave and shall be credited with said leave the first pay period in January of each calendar year. Administrative Leave will not rollover 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 and Fifty Dollars ($1,250). F. Automobile Allowance. Employee's duties require Employee 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 an Automobile Allowance of Five Hundred Dollars ($500) per month to 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 Leung Second Amended and Restated Employment Agreement Page 4 15-12 a maximum of Four Thousand Dollars ($4,000). Deferred Compensation. Employer shall contribute to Employee's City - sponsored deferred compensation account as follows: Effective on the first day of the pay period following the approval of this Agreement, Employer shall contribute up to Nineteen Thousand and Five Hundred Dollars ($19,500) per calendar year towards Employee's deferred compensation account. For calendar year 2021, Employer shall consider any prior City or Employee - paid contributions since January 1, 2021 and shall prorate biweekly contributions for the remaining number of pay periods in 2021, if necessary, so as not to exceed $19,500. Beginning calendar year 2022, and continuing thereafter, Employer shall make bi-weekly contributions towards Employee's City -sponsored deferred compensation account up to the amount of $19,500 per calendar year. J. Amendment of Benefits. Except as expressly provided under Section 4 of this Agreement, Employee's benefits 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%, 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%. 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. SECTION 5: General Business Expenses Leung Second Amended and Restated Employment Agreement Page 5 15-13 A. Employer recognizes that Employee may incur expenses of a non -personal, job-related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. Employer agrees to budget and pay for professional dues, membership and subscriptions of Employee necessary for continuation and participation in the International City/County Management Association (ICMA), Cal-ICMA, the California City Manager's Foundation (CCMF), 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 reimburse Employee 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 this Section 5, Paragraphs A, B, and C above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Council. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 6: At -Will Employment Relationship A. Consistent with Article V of the City Charter, 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, Leung Second Amended and Restated Employment Agreement Page 6 15-14 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 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 General Release Agreement 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 Agreement in the form attached hereto as Exhibit A, then Employer shall pay Employee beginning on the effective date of termination a lump sum benefit equal to six (6) months of Employee's 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 in and receiving medical coverage through the City medical benefits plan at the time of termination. In accordance with Government Code Section 53260(a), in no event shall Employee receive a cash settlement that is greater than the monthly Base Salary of Employee multiplied by the number of months left on the unexpired term of the Agreement. The lump sum payment described in this Section 7(A) shall be referred to herein as "Severance". B. 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 Leung Second Amended and Restated Employment Agreement Page 7 15-15 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. Resignation. 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. 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 A. Employee shall devote Employee's full energies, interests, abilities and productive time to the performance of this Agreement and utilize Employee's Leung Second Amended and Restated Employment Agreement Page 8 15-16 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 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's 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. 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 Leung Second Amended and Restated Employment Agreement Page 9 15-17 the termination of this Agreement. SECTION 10: Outside Activities A. Employee shall not engage in any employment, activity, consulting service or enterprise for compensation, or otherwise, which is, actually or potentially, inconsistent, incompatible, in conflict, inimical to or which materially interferes with Employee's duties and responsibilities to Employer. (GOV § 1125 - 1129) 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. (GOV § 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 A. 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: Leung Second Amended and Restated Employment Agreement Page 10 15-18 (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 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, 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. 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 Leung Second Amended and Restated Employment Agreement Page 11 15-19 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 oneself of legal advice with respect to the terms and provisions of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. [Signatures on next page] Leung Second Amended and Restated Employment Agreement Page 12 15-20 EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation William Avery, Mayor Date: APPROVED AS TO FORM: Edward P. Zappia THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: By: Leilani Brown, City Clerk Date: EMPLOYEE, An Individual M Grace K. Leung Date: Date: [End of Signatures] Attachment: Exhibit A - General Release Agreement Leung Employment Agreement Page 13 15-21 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 Employee has twenty-one (21) days from receiptof this Agreement to consider it. Employer hereby advises Employee to consult with Employee's 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"), Employee 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 Employee through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether Employee 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 Employee as a result of Employee's employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to Employee, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Second Amended and Restated Employment Agreement effective January 26, 2021, 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 Employee as a result of Employee's employment by Employer. Page 14 15-22 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 Employee's employment with Employer which Employee 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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 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 Employee does not know or suspect to exist in Employee's favor. Employee further acknowledges that Employee has read this General Release and that Employee understands that this is a general release, and that Employee 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 its reasonable attorneys' fees. Page 15 15-23 CITY OF NEWPORT BEACH Dated , 20_ By: Dated: , 20_ By: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE LM Aaron C. Harp, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk Date: Newport Beach Mayor Grace K. Leung Page 16 15-24 ATTACHMENT C CITY OF NEWPORT BEACH SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY ATTORNEY This SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of January 26, 2021 ("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 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 Attorney since September 6, 2011. Employee is currently employed under a Fifth Amended and Restated Employment Agreement approved April 9, 2019 ("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 15-25 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 January 26, 2021 ("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 A. 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 Newport Beach Municipal Code ("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 an annual base salary of Two Hundred, Fifty -Two Thousand, Five Hundred Dollars ($252,500) ("Base Salary"), which is a 2.058% increase, effective on the first day of the pay period following approval of the Agreement. The Base Salary shall be 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 Harp Employment Agreement Page 2 of 17 15-26 participation in plans or programs described in Section 4 of this Agreement. The annual Base Salary of Employee will be within the approved salary range adopted by resolution of the City Council on this night, January 26, 2021. B. Effective the pay period which includes January 1, 2022, and annually thereafter; Employee shall receive a Base Salary increase 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 the California Government Code ("Government Code" or "GOV") 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] C. Employee shall receive a one-time, lump sum bonus in the amount of Five Hundred and Eighty -Eight Dollars ($588) in the first payroll period after the complete execution of this Agreement. D. 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. E. 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 Employee 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 Harp Employment Agreement Page 3 of 17 15-27 Management category, at the rate designated for Employee's years of service (9.69 hours per Pay Period). Employee's maximum accrual for 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, LEAVES, Section H - Leave Sellback. C. Administrative Leave. Employee shall be entitled to a maximum of eighty (80) hours of paid Administrative Leave and shall be credited with said leave the first pay period in January of each calendar year. Administrative Leave will not rollover 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. Consistent with the City's Key and Management Compensation Plan, Administrative Leave does not accrue and therefore has no cash value. As such it 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 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 Dollars ($1,000). F. Automobile Allowance. Employee's duties require Employee 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 an Automobile Allowance of Five Hundred Dollars ($500) per month to 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. Deferred Compensation. Employer shall contribute to Employee's City -sponsored Harp Employment Agreement Page 4 of 17 15-28 deferred compensation account as follows: Effective on the first day of the pay period following the approval of this Agreement, Employer shall contribute Two Hundred Dollars ($200), biweekly, towards Employee's deferred compensation account. Amendment of Benefits. Except as expressly provided under Section 4 of this Agreement, Employee's benefits are not tied to the compensation of any other City employee or group of City employees. J. Retirement - CalPERS. Employee contributes thirteen percent (13%) of compensation earnable towards Employee's retirement benefit, which is designated as follows: 8% 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 employees of the Key & Management Group exceeds 13%, 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 employees 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%. Employee's 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. 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. Harp Employment Agreement Page 5 of 17 15-29 B. Employer shall reimburse Employee for expenses incurred while attending a reasonable number of League of Cities and other similar conferences relevant to the performance of Employee's 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 for satisfying Employee's Mandatory Continuing Legal Education ("MCLE") obligations. It is not contemplated that travel outside of Orange County will be required for Employee to meet the 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 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 General Release Agreement Harp Employment Agreement Page 6 of 17 15-30 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 Agreement in the form attached hereto as Exhibit A, then Employer shall pay Employee beginning on the effective date of termination a lump sum benefit equal to six (6) months of Employee's 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 in and receiving medical coverage through the City medical benefits plan at the time of termination. In accordance with Government Code Section 53260(a), in no event shall Employee receive a cash settlement that is greater than the monthly Base Salary of Employee multiplied by the number of months left on the unexpired term of the Agreement. The lump sum payment described in this Section 7(A) shall be referred to herein as "Severance". B. 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 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; Harp Employment Agreement Page 7 of 17 15-31 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 resigns or otherwise 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 Employee's full energies, interests, 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 during normal business hours, subject to paragraph B of this Section below. Harp Employment Agreement Page 8 of 17 15-32 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 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 Employee's 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's 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. 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 Harp Employment Agreement Page 9 of 17 15-33 A. Employee shall not engage in any employment, activity, consulting service or enterprise for compensation, or otherwise, which is, actually or potentially, inconsistent, incompatible, in conflict, inimical to or which materially interferes with Employee's duties and responsibilities to Employer. (GOV § 1125 - 1129) 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. (GOV § 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 A. 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: Harp Employment Agreement Page 10 of 17 15-34 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 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, 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. 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 Harp Employment Agreement Page 11 of 17 15-35 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 oneself of legal advice with respect to the terms and provisions of this Agreement. [Signatures on next page] Harp Employment Agreement Page 12 of 17 15-36 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 By: By: William Avery, Mayor Aaron C. Harp Date: Date: APPROVED AS TO FORM: By: Edward P. Zappia THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: By: Leilani Brown City Clerk Date: Date: [End of Signatures] Attachment: Exhibit A - General Release Agreement Harp Employment Agreement Page 13 of 17 15-37 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 Employee has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with Employee's 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"), Employee 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 Employee through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether Employee 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 Employee as a result of Employee's employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to Employee, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer. Harp Employment Agreement Page 14 of 17 15-38 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 Sixth Amended and Restated Employment Agreement effective January 26, 2021, 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 Employee as a result of Employee's 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 Employee's employment with Employer which Employee 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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE Harp Employment Agreement Page 15 of 17 15-39 MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 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 Employee does not know or suspect to exist in Employee's favor. Employee further acknowledges that Employee has read this General Release and that Employee understands that this is a general release, and that Employee intends to be legally bound bythe 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 its reasonable attorneys' fees. Dated , 20 [Signatures on Next Page] Harp Employment Agreement Page 16 of 17 15-40 Dated , 20_ Dated: 20 APPROVED AS TO FORM: By: Date: ATTEST: By: City Clerk Date: By: CITY OF NEWPORT BEACH Newport Beach Mayor Aaron C. Harp Harp Employment Agreement Page 17 of 17 15-41 ATTACHMENT D CITY OF NEWPORT BEACH SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT CITY CLERK This SIXTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of January 26, 2021 ("Effective Date") and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and LEILANI I. BROWN ("Employee"), an individual (sometimes collectively referred to herein as "the Parties"). RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. Employee has been continuously employed by City as City Clerk since November 22, 2008. Employee is currently employed under a Fifth Amended and Restated Employment Agreement approved April 9, 2019 ("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. Brown Employment Agreement Page 1 15-42 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 January 26, 2021 ("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 A. 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 Newport Beach Municipal Code ("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 an annual base salary of One Hundred, Fifty - Five Thousand, Seven Hundred and Thirty -Two Dollars ($155,732) ("Base Salary"), which is a 2% increase, effective on the first day of the pay period following approval of the Agreement. The Base Salary shall be 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 Brown Employment Agreement Page 2 15-43 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. B. Effective the pay period which includes January 1, 2022, and annually thereafter; Employee shall receive a Base Salary increase 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 the California Government Code ("Government Code" or "GOV") 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]. C. Employee shall receive a one-time, lump sum bonus in the amount of Three Hundred and Fifty -Two Dollars ($352) in the first payroll period after the complete execution of this Agreement. D. 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. E. 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 Employee's 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, at the rate designated for Employee's years of service Brown Employment Agreement Page 3 15-44 (9.69 hours per Pay Period). Employee's maximum accrual for 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, LEAVES, Section H - Leave Sellback. C. Administrative Leave. Employee shall be entitled to a maximum of eighty (80) hours of paid Administrative Leave and shall be credited with said leave the first pay period in January of each calendar year. Administrative Leave will not rollover 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. Consistent with the City's Key and Management Compensation Plan, Administrative Leave does not accrue and therefore has no cash value. As such it 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 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 Dollars ($1,000). F. Automobile Allowance. Employee's duties require Employee to be available and to respond to demands of City business outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee an Automobile Allowance of Four Hundred Dollars ($400) per month to 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. Deferred Compensation. Employer shall contribute to Employee's City - sponsored deferred compensation account as follows: Effective on the first day of the pay period following approval of this Agreement, Employer shall Brown Employment Agreement Page 4 15-45 contribute One Percent (1%) of Employee's Base Salary, biweekly, towards Employee's deferred compensation account. Effective on the first day of the pay period which includes January 1, 2022, Employer shall contribute One- and One -Half Percent (1-'/2%) of Employee's Base Salary, biweekly, towards Employee's deferred compensation account. Amendment of Benefits. Except as expressly provided under Section 4 of this Agreement, Employee's benefits are not tied to the compensation of any other City employee or group of City employees. J. 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%, 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%. 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. 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 Brown Employment Agreement Page 5 15-46 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 related to attending a reasonable number of League of Cities and other similar conferences relevant to the performance of Employee's 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, 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 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 General Release Agreement 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 Brown Employment Agreement Page 6 15-47 Council, and does not revoke the Agreement of Separation, Severance and General Release Agreement in the form attached hereto as Exhibit A, then Employer shall pay Employee beginning on the effective date of termination a lump sum benefit equal to six (6) months of Employee's 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 in and receiving medical coverage through the City medical benefits plan at the time of termination. In accordance with Government Code Section 53260(a), in no event shall Employee receive a cash settlement that is greater than the monthly Base Salary of Employee multiplied by the number of months left on the unexpired term of the Agreement. The lump sum payment described in this Section 7(A) shall be referred to herein as "Severance". B. 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 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 Brown Employment Agreement Page 7 15-48 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 resigns or otherwise 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 Employee's full energies, interests, 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 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 EPM and referred to in the City's 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 privileged, confidential and proprietary documents and information, relating to the City, its Brown Employment Agreement Page 8 15-49 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's 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. 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 A. Employee shall not engage in any employment, activity, consulting service or enterprise for compensation, or otherwise, which is, actually or potentially, inconsistent, incompatible, in conflict, inimical to or which materially interferes with Employee's duties and responsibilities to Employer. (GOV § 1125 - 1129) 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. (GOV § 825, 995, et. seq.) Brown Employment Agreement Page 9 15-50 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 A. 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 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 Brown Employment Agreement Page 10 15-51 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. 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 oneself of legal advice with respect to the terms and provisions of this Agreement. [Signatures on Next Page.] Brown Employment Agreement Page 11 15-52 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: William Avery, Mayor Date: APPROVED AS TO FORM: By: Edward P. Zappia THE ZAPPIA LAW FIRM A Professional Corporation ATTEST: By: Brandi Goodman-Decoud Assistant City Clerk Date: EMPLOYEE, An Individual Leilani I. Brown Date: Date: [End of Signatures] Attachment: Exhibit A — General Release Agreement Brown Employment Agreement Page 12 15-53 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 Employee has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with 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"), Employee 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 Employee through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether Employee 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 Employee as a result of Employee's employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to Employee, 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 Sixth Amended and Restated Employment Agreement effective January 26, 2021, 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 Employee as a result of Employee's employment by Employer. 15-54 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 Employee's employment with Employer which Employee 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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 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 Employee does not know or suspect to exist in Employee's favor. Employee further acknowledges that Employee has read this General Release and that Employee understands that this is a general release, and that Employee 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 its reasonable attorneys' fees. 15-55 [Signatures on Next Page.] CITY OF NEWPORT BEACH Dated , 20_ By: Newport Beach Mayor Dated: , 20_ By: Leilani Brown APPROVED AS TO FORM: Date: ATTEST: Assistant City Clerk Date: 15-56 p+tr Fons''�P City of Newport Beach BUDGET AMENDMENT 2020-21 ATTACHMENT E BA#: 21-026 Department: Human Resources ONETIME: ❑ Yes [±]N. Requestor: Jyll Ramirez Approvals ❑ CITY MANAGER'S APPROVAL ONLY ) /� L Finance Director: Dal �L F±1 COUNCIL APPROVAL REQUIRED City Clerk: Date =XPLANATION FOR REQUEST: o increase expenditure appropriations to provide funding for the first five months of Appointed Employees updated contracts. ❑ from existing budget appropriations ❑ from additional estimated revenues j] from unappropriated fund balance Fund # Org Object Project IDescription Increase or (Decrease)_$ . L.......... ... ._._... .... ..__ ..._._. ... .... .. ...._... Subtotal $ Fund # 010 010 010 010 ___01020005 010 _ 010 010 010 010 010 010 010 010 010 010 010 010 010 010 010 010 Org 01020005 01015005 01010005 - 01015005 01010005 01020005 01015005_ -- - - 010005 01MAL 01020005 - 01015005 01010005 01020005 01015005 01010005 _ _ 01020005 01015005 01010005 01020005 01015005 01010005 Object 711001 711001 711001CITY - - .. _ . 722001 722001 722001 723002 723002 - - .... 723002 724001 724001 724001 727016 _ 72 7016 727016 727020 727020 7MUC 714001 714001 714001 Project ...... - - -- _ Descrption _ _ Increase or jDecrease�$ $ 2,064.00 $ 1,905.96 $ 1,143.00 --- -- $ 143.97 $ 199.00 $119.00 $ 210.00 $ 148A0 _.. - $ 89.00 $ 268.00 $ {248.00 $ 5149:00) $ 117.00_ $ 60. 00_ $ 26.00 $ 8,038.00 $ 657.00 $ 636.00- $588.00 $ 352.00 CITY MANAGER ADMIN SALARIES MISCELLANEOUS CITY ATTORNEY ADMIN - SALARIES MISCELLANEOUS CLERK ADMIN - SALARIES MISCELLANEOUS -- - — -- --- —-—.........- CITY MANAGER ADMIN - PENSION EE NORMAL COST MISC CITY ATTORNEY ADMIN - PENSION EE NORMAL COST MISC CITY CLERK ADMIN - PENSION EE NORMAL COST MISC CITY MANAGER ADMIN - PENSION ER NORMAL COST MISC CITY ATTORNEY ADMIN - PENSION ER NORMAL COST MISC --- -- -- — CITY CLERK ADMIN -PENSIONER NORCOST MISC _ CITY MANAGER ADMIN -PENSION EE CONTRIB MIS_C --- CITY ATTORNEY ADMIN - PENSION EE CONTRIB MISC CITY CLERK ADMIN PENSION EE CONTRIB MISC CITY MANAGER ADMIN - MEDICARE FRINGES CITY ATTORNEY ADMIN - MEDICARE FRINGES CITY CLERK ADMIN - MEDICARE FRINGES CITY MANAGER ADMIN - DEFERRED COMP CITY CONTRIB CIN ATTORNEY ADMIN - DEFERRED COMP CITY CONTRIB CLERK ADMIN -DEFERRED COMP CITY CONTRIB CITY MANAGER ADMIN - LUMP SUM_ PAYMENT _ _ CITY ATTORNEY ADMIN - LUMP SUM PAYMENT _ T _ CITY CLERK ADMIN - LUMP SUM PAYMENT Subtotal 1 $ _ _ 18,030:93 15-57 Newport Beach Appointed Position: CITY MANAGER Assumptions: 2% COLA per year eff 1/30/21 $14,200 Increase to City -paid Deferred Comp contribution ($19,500 total; Tier: II Base Pay Miscellaneous Supplemental Pay Car Allowance Pension Contribution Employee Normal Cost (7%) Employer Normal Cost (10.172%) Employee Pension Pickup (-13.0%) Other City Paid Benefits Medicare Compensated Absences Medical Allowance Cafeteria Allowance Employee Assistance Program (EAP) Cellphone Allowance Life Insurance (policy based on annual base pay with cap of $50,000 ) Tuition Reimbursement (based on calendar year 2020 actual) Retiree Health Savings (Post Employment Healthcare Contribution ) Deferred Compensation ($19,500 per calendar year) Bonus ATTACHMENT F Total FY 21 Year 1 Year 2 Cost 275,706 4,878 10,490 15,367 Subtotal 275,706 4,878 10,490 15,367 Subtotal 19,299 341 734 1,076 28,045 496 1,067 1,563 Subtotal 11,502 204 438 641 4,486 277 358 635 9,650 171 367 538 1,687 - - - 20,700 20 960 105 - 60 60 120 5,300 14,200 14,200 28,400 - 636 - 636 Subtotal 42,908 15,344 14,985 30,329 Total 336,116 20,425 25,912 46,337 Salary Only 1.77% 3.80% Total Comp 6.08% 7.71% 15-58 Newport Beach Appointed Position: CITY ATTORNEY Assumptions: $252,500 Salary in Yr 1; 2% COLA in Yr 2 $200 per pay period City paid Deferred Compensation contribution Tier: Classic Base Pay Miscellaneous Supplemental Pay Car Allowance Pension Contribution Employee Normal Cost (10.42%) Employer Normal Cost (7.752%) Employee Pension Pickup (-13.0%) Other City Paid Benefits Medicare Compensated Absences Medical Allowance Cafeteria Allowance Employee Assistance Program (EAP) Cellphone Allowance Life Insurance (policy based on annual base pay with cap of $50,000 ) Tuition Reimbursement (based on calendar year 2020 actual) Retiree Health Savings (Post Employment Healthcare Contribution) Deferred Compensation ($200 per pay period) Bonus ATTACHMENT F Total FY 21 Year 1 Year 2 Cost Subtotal 247,407 4,505 9,543 14,048 6,000 - Salary Only 1.82% Subtotal 6,000 Total Comp - - 25,780 469 994 1,464 19,179 349 740 1,089 (32,163) (586) (1,241) (1,826) Subtotal 12,796 233 494 727 3,999 141 214 354 8,659 158 334 492 1,687 - - - 20,700 20 960 105 1,680 60 60 120 - 5,200 5,200 10,400 Subtotal 37,810 5,558 5,808 11,366 Total 304,013 10,296 15,845 26,141 Salary Only 1.82% 3.86% Total Comp 3.39% 5.21% 15-59 Newport Beach Appointed Position: CITY CLERK Assumptions: 2% COLA Yr 1 & Yr 2 1% City paid Deferred Compensation contrib in Yr 1 & 1.5% in Yr 2 Tier: Classic Base Pay Miscellaneous Supplemental Pay Car Allowance Pension Contribution Employee Normal Cost (10.42%) Employer Normal Cost (7.752%) Employee Pension Pickup (-13.0%) Other City Paid Benefits Medicare Compensated Absences Medical Allowance Cafeteria Allowance Employee Assistance Program (EAP) Cellphone Allowance Life Insurance (policy based on annual base pay with cap of $50,000 ) Tuition Reimbursement (based on calendar year 2020 actual) Retiree Health Savings (Post Employment Healthcare Contribution) Deferred Compensation (2021 - 1%, 2022 - 1.5%) Bonus ATTACHMENT F Total FY 21 Year 1 Year 2 Cost Subtotal 152,679 2,702 5,809 8,511 4,800 - Salary Only 1.77% Subtotal 4,800 Total Comp - - 15,909 282 605 887 11,836 209 450 660 (19,848) (351) (755) (1,106) Subtotal 7,897 140 300 440 2,608 62 119 180 5,344 95 203 298 1,687 - - - 20,700 20 960 105 2,160 60 60 120 - 1,554 2,377 3,931 Subtotal 33,583 2,122 2,759 4,529 Total 198,959 4,963 8,869 13,480 Salary Only 1.77% 3.80% Total Comp 2.49% 4.46% 15-60