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HomeMy WebLinkAbout09 - City Clerk AgreementCITY OF NEWPORT BEACH City Council Staff Report March 11, 2014 Agenda Item No. 9. TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Mike Henn, Designated City Council Negotiator PREPARED BY: Terri L. Cassidy, Deputy City Manager PHONE: (949) 644 -3303, tcassidy @newportbeachca.gov TITLE: First Amended and Restated Employment Agreement for City Clerk ABSTRACT: The City Clerk position (along with the City Manager and City Attorney) is one of three positions that are appointed by, and report directly to, the City Council. The City Council recently finalized its 2013 evaluation of the City Clerk and has assessed her performance in accordance with goals and objectives previously outlined by the City Council and consistent with the City Charter. As a result of this performance review process, recommendations for compensation changes and adjustments to the City Clerk's employment agreement are discussed below. RECOMMENDATION: Approve and authorize the Mayor and Deputy City Clerk to execute the attached First Amended and Restated Employment Agreement ( "Agreement ") (Staff Report Attachment A) for the City Clerk. FUNDING REQUIREMENTS: The Agreement provides for a salary increase that totals approximately $4,000 annually (3 %) and a one -time merit payment of $14.24 for each work day from the date of Agreement adoption retroactive to November 16, 2013 (the first day of the pay period which encompasses employee's anniversary date of November 22, 2013). 123 DISCUSSION: Leilani Brown has served as the City Clerk since November 22, 2008. Based on Ms. Brown's demonstrated performance as City Clerk, which was reviewed in Council Closed Session January 28, February 11 and February 25, 2014, it is recommended that she receive a one -time merit payment retroactive to her anniversary date and an approximate 3% increase in base salary from $133,307 to $137,000, an increase of almost $4,000 annually. The proposed salary falls within the salary range for City Clerk, previously adopted by the City Council as part of the Fox Lawson & Associates Executive Compensation Study (2012). In recognition of the City Council's goal of shared retirement costs, Ms. Brown will continue to contribute to her PERS retirement, consistent with the unrepresented Key & Management Group. As of July 1, 2014, the employee contribution will increase from 9.45% to 10.9% and is scheduled to increase to 12.35% June 30, 2015. The Agreement specifies that if the City Council adopts a retirement contribution for the unrepresented Key and Management Group, the Agreement will be deemed amended and Ms. Brown will be subject to the greater PERS contribution rate applicable to the Key and Management Group. In addition, Ms. Brown is eligible to receive any increased benefits that become available under the Key and Management Compensation Plan during the term of the Agreement. The Agreement includes changes to other provisions, to conform the City Clerk's Agreement to the structure of those of the City Manager and City Attorney. A redline version of the Agreement showing all of the revisions is attached hereto as Attachment B. Staff is available to answer questions, should any clarifications be required. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This 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: Name. D First Amended and Restated Employment Agreement (Approved by ACH).odf D Brown Redlined Agreement ( #2).pdf Description: Recommended First Amended and Restated Employment Agreement Redline of Recommended Amended and Restated Employment Agreement 124 ATTACHMENT A FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement ") is made effective as of March 11, 2014 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 an Amended and Restated Employment Agreement dated March 26, 2013 ( "Employment Agreement"). C. The Parties mutually agree that they intend for this, Agreement to supersede the Employment Agreement and that upon execution of this Agreement, the Employment Agreement shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment. Page 1 125 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term This Agreement shall become effective March 11, 2014 ( "Effective Date "). Subject to City's right to terminate Employee's employment at any time, as provided for in this Agreement, the Term of this Agreement is two (2) years from the Effective Date, and shall automatically be extended for one additional twelve (12) month period on each annual anniversary of the Effective Date of the Agreement unless City notifies Employee of its intent not to extend the Agreement at least thirteen (13) months prior to expiration of the original Term or any subsequent automatic extension of the Term. City's election not to extend this Agreement shall not entitle Employee to severance pursuant to Section 7 of this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Clerk, to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the Municipal Code and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation A. Employer agrees to pay Employee at the rate of an annual base salary of $137,300 (one hundred thirty-seven thousand three hundred dollars), subject to deduction and withholding of any and all sums required for federal or state Page 2 126 state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ( "Executive Management Employees "). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer also agrees to pay Employee a one -time merit payment of $14.24 per paid work day from the date of adoption of this Agreement back to November 16, 2013. C. Employer, by the City Council, and Employee shall promptly 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. D. 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 her employment service between the Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall cant' over, and Page 3 127 her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 9.69 hours per Pay Period. Employee's maximum accrual for Flex Leave is limited to 400 (four hundred) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to 40 (forty) hours of Administrative Leave per calendar year. Administrative Leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly provided herein, Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available under the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of $1,000 (one thousand dollars). F. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. Page 4 128 G. Amendment of Benefits. Employees benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. H. PERS. The Parties agree that prior to the Pay Period including June 30, 2014, Employee shall pay a total of 9.45% of the Employee's retirement costs (5.58% employee normal member contribution [ "EE side "], 2.42% of employer costs sharing and 1.45% payment pursuant to Government Code Section 20516(f) ["ER side "] on a pre -tax basis pursuant to IRS Code Section 414(h)(2). Effective the Pay Period including June 30, 2014, Employee shall contribute an additional 1.45% of pensionable pay towards retirement costs pursuant to Government Code Section 20516(f), for a total contribution of 10.9 %. Effective the Pay Period including June 30, 2015, Employee shall contribute an additional 1.45% of pensionable pay towards retirement costs pursuant to Government Code Section 20516(f), for a total contribution of 12.35 %. The Parties agree that the City will not report the value of any Employer Paid Member Contribution as special compensation. SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non - personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employers normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employers normal requirements and must be submitted within time limits established by Employer. B. City shall reimburse Employee for expenses incurred in her attending a reasonable number of League of Cities and other similar conferences relevant to the performance of her duties. Page 5 129 C. The expenses to be budgeted and paid in the 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 her employment with Employer, subject only to Employee's providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. SECTION 7: Severance and Benefit Payoff at Termination, and General Release Agreement A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay Page 6 130 Employee a lump sum benefit equal to six (6) months of her then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination (collectively "Severance"). B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 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 Page 7 131 organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused Administrative Leave. SECTION 8: Employee's Obli-gations and Hours of Work A. Employee shall devote her full energies, interest, abilities and productive time to the performance of this Agreement and utilize her best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's base salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt, salaried nature of the employment, employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall, Monday through Friday during normal business hours, subject to paragraph B of this Section, below. Page 8 132 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. SECTION 9: Confidentiality and Non- Disaaraciement A. Employee acknowledges that in the course of her employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ( "Confidential Information "). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, oral, or electronic statement to any member of the public, the press, or any City employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to City and Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. C. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement. Page 9 133 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 her duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee, in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terns and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. Page 10 134 SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: City of Newport Beach c/o City Manager 100 Civic Center Drive Newport Beach, California 92660 (2) EMPLOYEE: Leilani I. Brown at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the Parties are merged into this Agreement or are otherwise rendered null and void. The Parties, by mutual written agreement, may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, her employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and her employment is, and will continue to be, at the will of the City Council. Page 11 135 B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that she has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that she has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that she has been advised to obtain, and has availed herself of, legal advice with respect to the terms and provisions of this Agreement. [Signatures on Next Page.] Page 12 136 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 M Rush N. Hill, II, Mayor APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: f �--- Aaron C. Harp, City Attorney Date: 3 / 1� ./ 11-1 ATTEST: in Deputy City Clerk Date: EMPLOYEE, An Individual Leilani I. Brown Date: [End of Signatures] Page 13 137 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement') is entered into by and between LEILANI BROWN ( "Employee ") and CITY OF NEWPORT BEACH ( "Employer'), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that she has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with her legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ( "Revocation Period "), she may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to her through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether she signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to her as a result of her employment by Employer. 1. Receiat of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to her, including salary, accrued benefit balances and reimbursed expenses ( "Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement dated March _, 2014, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ( "Severance "). Employee acknowledges that the Severance is in excess of all amounts due and owing her as a result of her employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby EXHIBIT A — Page 1 138 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 her employment with Employer which she now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore - Brown- Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which she does not know or suspect to exist in her favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing parry shall be entitled to recover her /its reasonable attomeys' fees and costs. [Signatures on Next Page.] EXHIBIT A — Page 2 WIN Dated 20_ CITY OF NEWPORT BEACH Dated: 20_ APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE 0 Aaron C. Harp, City Attorney Date: ATTEST: Deputy City Clerk Leilani Brown EXHIBIT A — Page 3 140 ATTACHMENT B FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ( "Agreement ") is made effective as of March 11, 20142-611, 20145 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 an Amended and Restated Employment Agreement dated March 26, 20132013Neyen4b f2013"r:oyeMbeF 13, 24Q ( "Employment Agreement "). C. The Parties mutually agree that they intend for this Agreement to supersede the Employment Agreement and that upon execution of this Agreement, the Employment Agreement shall have no force or effect. D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment. Page 1 141 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: SECTION 1: Term This Agreement shall become effective March 11, 20142611, 20134 ( "Effective Date "). Subject to City's right to terminate Employee's employment at any time, as provided for in this Agreement, the Term of this Agreement is two (2) years from the Effective Date, and shall automatically be extended for one additional twelve (12) month period on each annual anniversary of the Effective Date of the Agreement unless City notifies Employee of its intent not to extend the Agreement at least thirteen (13) months prior to expiration of the original Term or any subsequent automatic extension of the Term. City's election not to extend this Agreement shall not entitle Employee to severance pursuant to Section 7 of this Agreement. SECTION 2: Duties and Authority Employer agrees to employ Employee as City Clerk, to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the Municipal Code and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist. Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign. SECTION 3: Compensation and Performance Evaluation A. Employer agrees to pay Employee at the rate of an annual base salary of $1371337,300 (one hundred thirty- seventhreeseven thousand three hundred dollars), subject to deduction and withholding of any and all sums required for Page 2 142 federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk, and any Department Directors not covered by collective bargaining agreements ( "Executive Management Employees "). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual base salary of Employee is within the approved salary range adopted by resolution of the City Council. This Agreement shall be deemed amended whenever the City Council adopts a resolution changing the base salary of Executive Management Employees or the manner (but not the amount) by which Executive Management Employees are paid. B. Employer also agrees to pay Employee a one -time merit payment of $3&754_$1414.24__:-(thirty six Fellers and fifty fe1 r ^ nts 3 per paid work day from the date of adoption of this Agreement back to November 16, 2013.; %Aihmnh —ems the beginning of the pate _period that . hides th�he date Employeel-eilanil -pWa ; was eligible foF an inGFease (NEWeMber 22, 20132012 C. Employer, by the City Council, and Employee shall promptly 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. D. 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 Page 3 143 A. Benefit Balances Carried Over. Employee shall not have a break in her employment service between the Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over, and her leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement. B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan "), at the current rate of 9.69 hours per Pay Period. Employee's maximum accrual for Flex Leave is limited to 400 (four hundred) hours. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan. C. Administrative Leave. Employee shall be entitled to 40 (forty) hours of Administrative Leave per calendar year. Administrative Leave will not accrue from calendar year to calendar year and must be used or lost at the conclusion of each calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave. D. Additional Benefits. Except as expressly provided herein, Employee shall receive the same health insurance and retirement benefits, and be entitled to participate in plans and programs such as short term and long term disability plans, life insurance plans, and deferred compensation plans, as are available under the Compensation Plan. This Agreement shall be deemed amended as to these benefits, and these benefits only, whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan. E. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of $1,000 (one thousand dollars). Page 4 144 F. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management member. G. Amendment of Benefits. Employees benefits provided under this Section 4 are not tied to the compensation of any other City employee or group of City employees except as expressly provided in this Section. H. PERS. The Parties agree that prior to the Pay Period including June 30, 2014, Employee shall pay a total of 9.45% of the Employee's retirement costs (5.58% employee normal member contribution [ "EE side "], 2.42% of employer costs sharing and 1.45% payment pursuant to Government Code Section 20516(f) [ "ER side "] Employee is pFeseRtly p Rg a total of RiRe percent (9,%) of the Employee's retirement nests (3.42% employer nest shoring ["ER side "1 and 5.58% employee normRI m mbpr Geptnb tiep ["EE side"]) on a pre -tax basis pursuant to IRS Code Section 414(h)(2).);. Effective the Pay Period including June 30, 2014, Employee shall contribute an additional 1.45% of pensionable pay towards retirement costs pursuant to Government Code Section 20516(f), for a total contribution of 10.9 %. Effective the Pay Period including June 30, 2015, Employee shall contribute an additional 1.45% of pensionable pay towards retirement costs pursuant to Government Code Section 20516(f), for a total contribution of 12.35 %. The Parties agree that the City will not report the value of any Employer Paid Member Contribution as special compensation. and the Parties agree that Emp.o^yee shall e to use. In the e opt the City f o 1RGil adepts Gempepsetion Plan R ..,hleh the nentrihpfinn tn.. wd rntirmmPnt by the Key and Management Grp is pater than nine percent (9%), but net loss than p .... ... ......F MO/ \ FL...F __. {... -F L. b.-.... ;.. F":.. A............ -...F ..L...II L... .J.- ....«...J ...........J...J RIFF&INM 4VA Page 5 145 SECTION 5: General Business Expenses A. Employer recognizes that Employee may incur expenses of a non - personal, job related nature that are reasonably necessary to Employee's service to Employer. Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer. B. City shall reimburse Employee for expenses incurred in her attending a G.,,.,!Gyee shall he, ent fled to attend a reasonable number of League of Cities and other similar conferences relevant to the performance of her duties. C. The expenses to be budgeted and paid in the 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. Page 6 146 B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from her employment with Employer, subject only to Employee's providing forty-five (45) calendar days prior written notice to Employer of the effective date of her resignation. SECTION 7: Severance and Benefit Payoff at Termination, and General Release Agreement A. If Employer terminates this Agreement (thereby terminating Employee's Employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, Employer shall pay Employee a lump sum benefit equal to six (6) months of her then applicable base salary, and shall provide six (6) months of medical benefits as provided under the Compensation Plan beginning on the Effective Date of termination (collectively "Severance' ). B. If Employer terminates this Agreement (thereby terminating Employee's Employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subpart 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following: 1. Conviction of a felony; Page 7 147 2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law; 3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code section 53243.4; 4. Willful abandonment of duties; 5. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and 6. Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer. C. In no event may Employee be terminated within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council. D. If Employee terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance. E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave. No compensation shall be paid for any accrued but unused Administrative Leave. SECTION 8: Employee's Obligations and Hours of Work A. Employee shall devote her full energies, interest, abilities and productive time to the performance of this Agreement and utilize her best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour Page 8 148 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, subject to paragraph B of this Section, below. B. Employee is authorized to work the 9/80 schedule as defined in Section 2(RR)(1) of the Employee Policy Manual and referred to in Miscellaneous Section (D) of the Compensation Plan. SECTION 9: Confidentiality and Non - Disparagement A. Employee acknowledges that in the course of her employment contemplated herein, Employee will be given or will have access to confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ( "Confidential Information "). Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City. B. Except as otherwise required by law, in the event the City terminates Employee with or without Cause, the City and Employee agree that no member of the City Council, the city management staff, nor the Employee shall make any written, Page 9 149 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 her duties and responsibilities to Employer. SECTION 11: Indemnification Consistent with the California Government Code, Employer shall defend and indemnify Employee, using legal counsel of Employer's choosing, against expense or legal liability for acts or omissions by Employee occurring within the course and scope of Employee's employment under this Agreement. In the event there is a conflict of interest between Employer and Employee, in such a case so that independent counsel is required for Employee, Employer may select the independent counsel after having considered the input of Employee and shall pay the reasonable fees of such independent counsel consistent with City litigation guidelines and standard rates received by City from its chosen special counsel. Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of her office or position, to fully reimburse the City for: (1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Page 10 150 Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing. SECTION 12: Other Terms and Conditions of Employment Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law. SECTION 13: Notices Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: Prier to May 1 2013- City of Newport Beach c/o City Manager 3300 NewpeFt 100 .Civic Center Drive PQ RAN 6R Newport Beach, California 92fifiR RQ15660 ri1002 .. _ , (2) EMPLOYEE: Leilani I. Brown at the home address then shown in Employer's files Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service as provided by law. SECTION 14: General Provisions Page 11 151 A. Integration: This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the Parties are merged into this Agreement or are otherwise rendered null and void. The Parties, by mutual written agreement, may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, her employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and her employment is, and will continue to be, at the will of the City Council. B. Binding Effect: This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Choice of Law: This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions. D. Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. E. Conflict with City Charter or Municipal Code. The City personnel ordinances, resolutions, rules and policies shall apply to Employee in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Page 12 152 Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement. F. Employee's Independent Review: Employee acknowledges that she has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that she has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that she has been advised to obtain, and has availed herself of, legal advice with respect to the terms and provisions of this Agreement. [Signatures on Next Page.] Page 13 153 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 0 Rush N. Hill, II, Mayor APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE go Aaron C. Harp, City Attorney ATTEST: 0 Deputy City Clerk Date: EMPLOYEE, An Individual By: Leilani I. Brown [End of Signatures] Page 14 154 GENERAL RELEASE AGREEMENT This General Release Agreement ( "Agreement ") is entered into by and between LEILANI BROWN ( "Employee ") and CITY OF NEWPORT BEACH ( "Employer "), in light of the following facts: A. Employee's employment with Employer concluded on B. Certain disputes have arisen between Employer and Employee. C. Employer and Employee each deny any liability whatsoever to the other. D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other. E. Employee is hereby informed that she has twenty -one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with her legal counsel before signing this Agreement. F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ( "Revocation Period "), she may revoke the Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired. G. Employee acknowledges that the Salary Payment referenced in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to her through the date of employment termination. Employee also acknowledges that Employer has made this Salary Payment without regard to whether she signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Employee acknowledges that the Severance referenced in paragraph 2 of this Agreement is in excess of all amounts that are due and owing to her as a result of her employment by Employer. 1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to her, including salary, accrued benefit balances and reimbursed expenses ( "Salary Payment ") from Employer. 2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Employee the gross amount provided for in Section 7 of the Employment Agreement dated March _ 20142014 -4, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ( "Severance "). Employee acknowledges that the Severance is in excess of all amounts due and owing her as a result of her employment by Employer. 3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby EXHIBIT A — Page 1 155 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 her employment with Employer which she now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore - Brown- Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy. Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which she does not know or suspect to exist in her favor. Employee further acknowledges that she has read this General Release and that she understands that this is a general release, and that she intends to be legally bound by the same. 4. Fees and Costs. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall be entitled to recover her /its reasonable attorneys' fees and costs. [Signatures on Next Page.] EXHIBIT A — Page 2 156 Dated , 20 CITY OF NEWPORT BEACH Dated: , 20 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: Aaron C. Harp, City Attorney Date: ATTEST: By: Deputy City Clerk Date: 0 Leilani Brown EXHIBIT A — Page 3 157