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HomeMy WebLinkAbout2009-61 - Appointing City ManagerRESOLUTION NO. 2009-61 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPOINTING DAVID KIFF CITY MANAGER WHEREAS, the City of Newport Beach is organized under the Council- Manager form of government and its current City Manager, Homer Bludau, is retiring effective September 11, 2009; WHEREAS, the City Council has conducted a national recruitment to identify the best and most qualified candidate to serve as City Manager for the City of Newport Beach to cant' out the objectives and priorities of the City Council and has determined that David Kiff is that individual; WHEREAS, Mr. Kiff has served the City as an employee with increasing levels of responsibility since 1998, and has exhibited a high degree of diligence, ethical conduct, and has faithfully performed all duties in the past; WHEREAS, the City has routinely waived the requirement that City officials post surety bonds when it can be shown that the official in question has exhibited a high degree of diligence and ethical conduct and has faithfully performed past duties; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: 1. David Kiff is appointed as the City Manager of the City of Newport Beach effective September 12, 2009 and shall perform all duties and have all powers of that position as set out in the Charter, ordinances, resolutions, policies and minute actions of the City Council. 2. The City Council hereby approves and authorizes the Mayor to execute David Kiffs contract attached hereto as Exhibit A to serve as City Manager for the City of Newport Beach. 3. In light of past practice and Dave Kiff s proven record of integrity in public service, we hereby waive the requirement that Mr. Kiff post ty bony ADOPTED, this 18"' day of August 2009. n I J1 n ATTE T: r^j N T Leilani Brown, QT Clerk Exhibit "A" — City Manager Employment Contract A09- 00538Miff Appointment -1- City of Newport Beach EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT ( "Agreement ") is made effective as of August _, 2009 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter city, ( "Employer' or "City ") and DAVID KIFF, ( "Employee ") an individual. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of Califomia and the Charter of City. B. Employee has been employed by City since January 5, 1998 at which time he was employed as Assistant to the City Manager. C. Employee was reclassified to Deputy City Manager in September 1999 and then to Assistant City Manager on April 20, 2001. D. Per Section 500 of the City Charter, in making this selection, the City Council has screened all qualified applicants and other qualified persons known by the Council to be available. E. The City Council believes Employee to be the best qualified on the basis of executive and administrative qualifications, with special reference to the experience and knowledge of accepted practice in respect to the duties of the office of City Manager as set forth in the City Charter. F. The City desires to employ Employee as City Manager and to enter into an Agreement with Employee upon the terms and conditions in this Agreement. G. Employee is willing to accept such employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: Page 1 of 9 SECTION 1: Term Unless sooner terminated, as provided in this Agreement, this Agreement shall remain in full force and effect from September 12, 2009 ( "Effective Date "), to and including September 11, 2011, subject to renewal upon the mutual agreement of both parties. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Manager to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter and Municipal Code and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation A. Effective September 12, 2009, Employer agrees to pay Employee an annual base salary of $225,000 (Two Hundred Twenty -Five Thousand Dollars), subject to deduction and withholding of any and all sums required for federal or state income tax, social security tax and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for other management employees. Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee shall be established by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of the City Manager or the manner (but not the amount) in which management employees are paid. B. Employer, by the City Council, and Employee will promptly set mutually agreed goals for the first twelve (12) months of this Agreement. Employer, by the City Council, shall conduct an initial evaluation of Employee's performance promptly following the six (6) month anniversary of the Effective Date of this Agreement, with annual evaluations beginning at the one year anniversary of the Effective Date of this Agreement. C. Employee's compensation as discussed under this section is not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Agreement. SECTION 4: Employee Benefits A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 27 days per year. As Employee is a current employee of City, his current maximum accrual rate will be increased from 648 hours to 1,000 hours effective September 12, 2009. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. B. Administrative Leave. Employee shall be entitled to one - hundred and twenty (120) hours of administrative leave per calendar year. Administrative leave will not accrue from calendar year to calendar year and must be used or lost at the Page 2 of 9 conclusion of each calendar. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. C. Additional Benefits. Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available to non - public safety employees of the City, as provided in the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. D. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of one thousand dollars ($1,000.00). E. Automobile Allowance. Employee's duties require him to be available and respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee $500 per month as an automobile allowance so that Employee may respond to these demands of City business. F. Amendment. Employee's benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non - personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. Employer agrees to budget and pay for professional dues, membership and subscriptions of Employee necessary for continuation and participation in the International City /County Management Association (ICMA), Cal -ICMA, the California City Manager's Foundation (CCMF), and state and national League of Cities and such other organizations as Employer and Employee may agree from time to time. C. Employer agrees to budget and to reimburse or pay for reasonable costs for attendance and participation in meetings, institutes, training programs, conferences, conventions and similar gatherings that support leadership development and the advancement of Employer and Employee's mutually agreed upon goals, and which are related to Employee's duties or Employer's operations and held in the continental United States. For purposes of this paragraph, reasonable expenses are limited to the reasonable and actual cost of registration, airfare (where applicable), ground transportation and meals. Page 3 of 9 Reasonable expenses will also include the reasonable and actual cost of lodging for meetings outside of Orange County. D. The expenses to be budgeted and paid in this Section 5, Paragraphs A, B, and C above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Council. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate. SECTION 6: At -Will Employment Relationship A. Consistent with Article V of the City Charter and Newport Beach Municipal Code Chapter 2.08, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without cause. Employer shall pay Employee for all services through the Effective Date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 7, Severance, below. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from his employment with Employer, subject only to Employee providing one hundred and twenty (120) calendar days prior written notice to Employer. SECTION 7: Severance and Benefit Payoff at Termination A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without cause, as determined by the affirmative votes of majority of the members of the City Council at any regular meeting as required by Section 506 of the City Charter, Employer shall provide Employee with forty -five (45) calendar days written notice and shall pay Employee severance as follows: 1. If termination is effective on or before October 31, 2010, Employer shall pay Employee a lump sum severance benefit equal to twelve (12) months of his then applicable base salary, and provide twelve (12) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. If termination is effective from November 1, 2010 up to and including September 10, 2011, Employer shall pay Employee a lump sum severance benefit equal to nine (9) months of his then applicable base salary, and provide nine (9) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. 3. If termination, including by non - renewal of this Agreement, is effective on September 11, 2011 or any date thereafter, Employer shall pay Employee a lump sum severance benefit equal to six (6) months of his then applicable base salary, and provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination. Page 4 of 9 B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with cause, as determined by the affirmative votes of majority of the members of the City Council at any regular or specially noticed meeting, Employee shall not be entitled to any severance. As used in this Agreement, cause shall mean any of the following: 1. Conviction of a felony; 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Willful abandonment of duties; 4. A pattern of repeated, willful and intentional failure to carry out materially significant and legally constituted policy decisions of the City Council made by the City Council as a body; and 5. Any other intentional or grossly negligent action or inaction by Employee that materially and substantially: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employee or public safety; (c) violates properly established rules or procedures of Employer causing a material and substantial adverse impact on Employer; or (d) has a material and substantial adverse effect on Employer's interests as clearly defined and delineated by properly established City Council action taken by the Council as a body, policy, regulations, ordinances, or Charter provisions of Employer. C. Except as otherwise mutually agreed, any dispute as to whether severance is excused under Section 7, Paragraph B, Sub - Paragraphs 3, 4 and 5, above, shall be referred to binding arbitration before a single neutral arbitrator selected from a list of seven (7) arbitrators requested from the California State Mediation and Conciliation Service. Employer will strike the first name and the parties will alternate striking names until one person is left who shall be designated as the arbitrator. The arbitrator's decision will be final and binding with no right of appeal. D. Consistent with the provisions of Section 506 of the City Charter, in no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of the City Council. E. If Employee terminates this Agreement (thereby terminating Employee's Employment), Employee shall not be entitled to any severance. F. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused administrative leave. SECTION 8: Employee's Obligations and Hours of Work Employee shall devote his full energies, interest, abilities and productive time to the performance of this Agreement and utilize his best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Page 5 of 9 Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours. SECTION 9: Confidentialitv and Non- Disoaraaement A. Employee acknowledges that in the course of his employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ( "Confidential Information "). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. All Confidential Information shall be promptly returned to the City immediately upon the effective date of any severance of employment. B. In the event the City terminates Employee with or without cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either party. Either party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. SECTION 10: Outside Activities Employee shall not engage in any activity, consulting service or enterprise, for compensation or otherwise, which is actually or potentially in conflict with or inimical to, or which materially interferes with his duties and responsibilities to Employer. SECTION 11: Moving Expenses Employer shall pay to Employee up to $15,000 (Fifteen Thousand Dollars) to reimburse Employee for specific relocation expenses actually incurred by Employee upon his relocation of his residence to Newport Beach should Employee elect to make such a move. Reimbursement shall be payable no later than six months following the date of close of escrow of Employee's purchase of a residence in Newport Beach, as more specifically described in Section 11 herein, or Employee's receiving possession of real property to be used as his personal residence through a lease with a term of at least one year. Page 6 of 9 SECTION 12: Housing Assistance Employer recognizes and accepts it cannot require Employee to relocate his residence to the City. Employer shall, however, provide Employee with housing assistance to enable and encourage Employee to become a resident of Newport Beach substantially under the terms more specifically provided in Exhibit A hereto. Nothing in this Agreement is intended to require Employee to relocate his residence to the City. SECTION 13: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. SECTION 14: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 15: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Clerk 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 With a courtesy copy to: City Attorney City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, California 92658 -8915 (2) EMPLOYEE: David Kiff at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. Page 7 of 9 SECTION 16: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, his employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Council. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Employee's Independent Review: Employee acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this agreement. Page 8 of 9 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature. EMPLOYER CITY OF NEWPORT BEACH, A Municipal Corporation By: Edward Selich, Mayor APPROVED AS TO FORM By: David R. Hunt, City Attorney Date: ATTEST: By: Leilani Brown, City Clerk EMPLOYEE By: David Kiff Date: Attachments: Exhibit A — Housing Assistance A09- 00538.Approved Final CMR Agreement Page 9 of 9 EXHIBIT A HOUSING ASSISTANCE Employer shall provide housing assistance to Employee consistent with the following terms: • Shared equity ownership generally consistent with past practice. Specifics to be mutually agreed upon, but with the following general parameters to the extent feasible: • City equity contribution of up to $550,000 • Loan encumbrances cannot exceed 50% of purchase price • The total of City equity contribution and mortgage loans cannot exceed the purchase price • City and Kiff to share in appreciation /depreciation of property value on a cost basis in proportion to initial equity/loan contribution of the parties and reflective of any quantified, documented personal resources that Kiff invests in remodeling or improving the property after Kiffs purchase of the property. City must approve any proposed remodel or improvements that are to be reimbursed pursuant to the Housing Assistance provisions prior to their construction and agree in writing to their cost so as to avoid dispute over the issue in the future. The improvements must be documented hard costs including materials and labor, but shall not include soft costs such as personal efforts of Kiff or other owners. Kiff shall have the burden of establishing the cost of all investments into the property through appropriate documentation. Kiff to assume 100% responsibility for debt service, maintenance, taxes and all expenses associated with the residence • Kiff to use best efforts to establish residency in Newport Beach within 12 months of Effective Date of employment agreement • City equity contribution (as adjusted for appreciation /depreciation) to be repayable within 12 months of termination of employment or retirement Employer and Employee shall take all reasonably necessary action in good faith in order to reach mutual agreement on all other terms and conditions reasonably necessary to carry out the intent of these provisions. Nothing in this agreement, however, shall be interpreted as a requirement that Employee relocate his residence to the City. Any dispute over the division of equity in property acquired pursuant this these provisions shall be subject to binding arbitration as set out in Section 7, subsection C of the Agreement. Exhibit A Page 1 of 1 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2009 -61 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 18th day of August, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Rosansky, Curry, Gardner, Daigle, Mayor Selich Noes: None Absent: Henn, Webb Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 19th day of August, 2009. City Clerk Newport Beach, California (Seal)