Newport Beach Cm Contract

8/9/2019 Newport Beach Cm Contract

1/49

EMPLOYMENT AGREEMENTThis EMPLOYMENT AGREEMENT ("Agreement") is made effective as of August I~2009 and is entered into by and between the CITY OF NE W POR T BEA CH, a Califomiamunicipal corporation and Charter city, ("Employer" or "City") and DAVID KIFF,("Employee") an individual.

RECITALSAo City is a municipal corporation duly organized and validly existing under the laws ofthe State of California with the power to carry on its business as it is now beingconducted under the statutes of the State of California and the Charter of City.

ao Emp loyee has been employed by City since January 5, 1 998 at which time he w asemployed as Assistant to the City Manag er.

Emp loyee was reclassified to Deputy City Manag er in September 1999 and then toAssistant City Manager on April 20, 2001.

Per Section 500 of the City Charter, in mak ing this selection, the City Counc il hasscreened all qualified applicants and other qualified persons known by the Councilto be available.

The City Council believes Employee to be the best qualified on the basis oexecu tive and administrative qualifications, with special reference to the experienceand knowledge of accepted practice in respect to the duties of the office of CityManager as set forth in the City Charter.

Fo The City desires to employ Employee as City Manager and to enter into anAgreement with Employee upon the terms and conditions in this Agreement.

Employee is willing to accept such employment on the terms and conditions seforth in this Agreem ent.

NOW , THEREFORE, it is mu tually agreed by an d betwee n the unde rsigned parties asfollows:

Page I of 9


2/49

SEC TION 1: TermUnless sooner terminated, as provided in this Agreement, this Agreement shall remainin full force and effect from September 12, 2009 ("Effective Date"), to and includingSeptember 11 ,2011, subject to renewal upon the m utual agreement of both parties.SECTION 2: Duties and AuthorityEmployer agrees to employ Employee as City Manager to exercise the powers andauthority and to perform the functions and duties specified in the Newport Beach CityCharter and M unicipal Code and a ll relevant resolutions, rules, regulations, proceduresapplicable job description(s) and state codes, as they currently or may in the futureexist. Employee shall exercise such power and authority and perform such othefunctions and duties, not inconsistent with this Agreement, as Employer, by its CityCouncil, may legally assign.SECTION 3: Compensation

Effective September 12, 2009, Employer agrees to pay Employee an annualbase salary of $225,000 (Two Hundred Twenty-Five Thousand Dollars), subjecto deduction and withholding of any and all sums required for federal or stateincome tax, social secudty tax and all other taxes, deductions or withholdingsrequired by then current state, federal or local law, prorated and paid onEmployers normal paydays for other management employees. Employer shalalso deduct sum s Em ployee is obligated to pay bec ause of participation in plansor programs described in Section 4 of this Agreem ent. The annual base sa lary ofEm ployee shall be established by resolution of the City Council. This Agreem entshall be deemed amended whenever the City Council adopts a resolutionchang ing the base salary of the City Ma nager or the man ner (but not the am ount)in which managemen t employees are paid.Employer, by the City Council, and Employee will promptly set mutually agreedgoals for the first twelve (12) months of this Agreement. Employer, by the CityCouncil, shall conduct an initial evaluation of Employees performance promptlyfollowing the six (6) month anniversary of the Effective Date of this Agreement,with annual evaluations beginning at the one year anniversary of the EffectiveDate of this Agreement.Employees compensation as discussed under this section is not tied to thecompensation of any other City employee or group of City employees except asexpressly provided in this Agreem ent.

SECTION 4: Em ployee BenefitsFlex Leave. Em ployee shall accum ulate Flex Leave as provided in the Citys Keyand Management Compensation Plan, Executive Management categor("Compensation Plan"), at the current rate of 27 days per year. As Em ployee is acurrent employee of City, his current maximum accrual rate will be increasedfrom 648 hours to 1,000 hours effective September 12, 2009. The right to selback accu mu lated Flex Leave shall be consistent with the Compen sation Plan.

Bo Administrative Leave. Employee shall be entitled to one-hundred and twent(120) hours of administrative leave per calendar year. Administrative leave wilnot accrue from calendar year to calendar year and must be used or lost at thePage 2 of 9


3/49

conclusion of each c alendar. Consistent with the Com pensation Plan, there is noright to sell back any ac cum ulated Administrative Leave.Additional Benefits. Employee shall receive the same health insurance andretirement benefits, and be entitled to participate in plans and programs such asshort term and long term disability plans, life insurance plans, and deferredcompensation plans, as are available to non-public safety employees o f the City,as provided in the Compensation Plan. This Agreement shall be deemedamended as to these benefits, and these benefits only, whenever the CityCouncil adopts a resolution or takes action changing these benefits under theComp ensation Plan.Annual Physical Exam. Employee may undergo an annual physical examinationand C ity shall reimbu rse Em ployee for the actual cost of the examination up to amax imum o f one thousan d dollars ($1,000.00).Automobile Allowance. Employees duties require him to be available andrespond to dem ands of C ity business at all times and ou tside of regular businesshours, including we ekends. Em ployer shall, therefore, pay to Employee $5 00 permonth as an automobile allowance so that Employee may respond to thesedemands of City business.Amendment. Employees benefits provided under this Section 4 are not tied tothe comp ensation of any other City emp loyee or group of City employees exceptas expressly provided in this Section.

SECTION 5: General Business ExpensesAo Employer recognizes that Employee may incur expenses of a non-personal, jobrelated nature that are reasonably nec essary to Em ployees service to Emp loyer.Employer agrees to either pay such expenses in advance or to reimburse theexpenses, so long as the expenses are incurred and submitted according toEm ployers normal expense reimbu rsement procedures or such other procedureas may be designated by the City Council. To be eligible for reimbursement, allexpenses must be supported by documentation meeting Employers normalrequirements and mus t be subm itted within time limits established by Emp loyer.Bo Employer agrees to budget and pay for professional dues, membership andsubscriptions of Employee necessary for continuation and participation in theInternational City/County Management Association (ICMA), CaI-ICMA, theCalifornia City M anagers Foundation (CCM F), and state and national League ofCities and such o ther organizations as Emp loyer and Employee m ay agree fromtime to time.

Employer agrees to budget and to reimburse or pay for reasonable costs forattendance and participation in meetings, institutes, training programs,conferences, conventions and similar gatherings that support leadershipdevelopment and the advancement of Employer and Employees mutuallyagreed upon goals, and which are related to Employees duties or Employersoperations and held in the continental United States. For purposes of thisparagraph, reasonable expenses are limited to the reasonable and ac tual cost ofregistration, airfare (where applicable), ground transportation and meals.

Page 3 of 9


4/49

Reasonable expenses will also include the reasonable and actual cost of lodgingfor meetings ou tside of O range County.The exp enses to be budg eted and paid in this S ection 5, Paragraphs A, B, and Cabove, are exclusive of reasonable expenses related to events, participation inorganizations, or attendance at events or meetings on behalf of the City asrequired by the City Council. Employer will separately budget and pay formembership and participation in community, civic or other organizations orevents in which Employer requires Employee to participate.

SECTION 6: At-Will Employment RelationshipConsistent with Article V of the City Charter and Ne wpo rt Beach M unicipal CodeChapter 2.08, Employee is appointed by, and serves at the pleasure of, the CityCoun cil. Nothing in this Ag reemen t shall prevent, limit or otherwise interfere withthe right of Employer to terminate this Agreement and the employment ofEm ployee at any time, with or without cause. E mployer shall pay Em ployee for allservices through the Effective Date of termination and Employee shall have noright to any additional compensation or payment, except as provided in Section7, S everance, below.Nothing in this Agreement shall prevent, limit or otherwise interfere with the rightof Employee to resign from his employment with Employer, subject only toEmployee providing one hundred and twenty (120) calendar days prior writtennotice to Em ployer.

SECTION 7: Severance an d Ben efit Payoff at TerminationIf Employer terminates this Agreement (thereby terminating EmployeesEm ployment) without cause, as determined b y the affirmative votes of ma jority ofthe members of the City Council at any regular meeting as required by Section506 of the City Charter, Employer shall provide Employee with forty-five (45)calendar days wdtten notice and shall pay Em ployee severance as follows:

If termination is effective on or before October 31, 2010, Employer shallpay Employee a lump sum severance benefit equal to twelve (12) monthsof his then applicable base salary, and provide twelve (12) months ofmedical benefits as provided under the Compensation Plan beginning onthe Effective Da te of termination.If termination is effective from November 1, 2010 up to and includingSeptember 10, 2011, Employer shall pay Employee a lump sumseverance benefit equal to nine (9) months of his then applicable basesalary, and provide nine (9) months of me dical benefits as provided und erthe Com pensation Plan beginning on the Effective Date of termination.If termination, including b y no n-renewal of this Agreem ent, is effective onSeptember 11,2011 or any date thereafter, Employer shall pay Employeea lump sum severance benefit equal to six (6) months of his thenapplicable base salary, and provide six (6) months of medical benefits asprovided under the Co mpe nsation Plan beginning on the Effective Date oftermination.

Page 4 of 9


5/49

If Employer terminates this Agreement (thereby terminating EmployeesEmployment) with cause, as determined by the affirmative votes of majority othe 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 o f the following:1. Conviction of a felony;

Conviction of a misdemeanor arising out of Employees duties under thisAgreement and involving a willful or intentional violation of law;3. Willful abandon men t of duties;

A pattern of repeated, willful and intentional failure to carry out materiallysignificant and legally constituted policy decisions of the City Councilmade by the City Council as a body; ando Any other intentional or grossly negligent action or inaction by Employeethat materially and substantially: (a) impedes or disrupts the operations o

Employer or its organizational units; (b) is detrimental to employee orpublic safety; (c) violates prepedy established rules or procedures ofEm ployer causing a material and substantial adverse impac t on Employer;or (d) has a material and substantial adverse effect on Employersinterests as cleady defined and delineated by properly established CityCouncil action taken by the Council as a body, policy, regulations,ordinances, or Charter previsions of Employer.Co Except as otherwise mutually agreed, any dispute as to whether severance isexcused under Se ction 7, Paragraph B, Sub-Parag raphs 3, 4 and 5, above, shallbe referred to binding arbitration before a s ingle neu tral arbitrator selected from alist of seven (7) arbitrators requested from the California State Mediation and

Conciliation Service. Employer will strike the first name and the parties wilaltemate stdking names until one person is left who shall be designated as tharbitrator. The arbitrators decision will be final and binding with no dght oappeal.Consistent with the provisions of Sec tion 50 6 of the City Charter, in no ev ent mayEmployee be terminated within ninety (90) days after any municipal election forthe selection or recall of one or more m embers of the City Council.If Employee terminates this Agreement (thereby terminating EmployeeEmp loyment), Employee shall not be entitled to any severanc e.

Fo Upon termination (regardless of reason), Em ployee shall be com pensated for alaccrued but unused Flex Leave. No com pensation shall be paid for any accruedbut unused ad ministrative leave.SECTION 8: Em ployees Obligations and Ho urs of W orkEmployee shall devote his full energies, interest, abilities and productive time to thperformance of this Agreement and utilize his best efforts to promote Employersinterests. Employees duties m ay involve exp enditures of time in excess of the regularlestablished workday or in excess of a forty (40) hour workweek and may also includetime outside normal office hours (including attendance at City Council meetings).

Page 5 of 9


6/49

Em ployees base salary includes com pensation for all hours worked an d Emp loyee shabe classified as an exempt employee for purposes of overtime and shall not be entitleto any form of compensation for overtime. In recognition of the significant timeEmployee will need to devote outside normal office hours to business activities oEmployer and the exempt, salaried nature of the employment, employee is permitted exercise a flexible work schedule. However, consistent with this flexibility anEmployees participation in activities out of the office, Employee will generally bexpected to keep office hours at City Hall, Monday through Friday dudng normabusiness hours.SECTION 9: Confidentiality and Non-Disparagement

Ao Employee acknowledges that in the course of his employment contemplatedherein, Employee will be given or w ill have access to confidential and p roprietarydocuments and information, relating to the City, its residents, businessesemployees, and customers ("Confidential Information"). Such ConfidentialInformation m ay include , but is not lim ited to, all information given to or otherw isaccessible to Employee that is not public information or would be exempt frompublic disclosure as confidential, protected, exempt or privileged information.Employee shall hold the Confidential Information in trust for Citys benefit, andshall not disclose the Confidential Information to others without the expreswritten consent of City. All Confidential Information shall be promptly returned tothe City imm ediately upo n the effective date of any se verance o f employme nt.In the event the City terminates Employee with or without cause, the City andEmployee agree that no member of the City Council, the city management staffnor the Employee shall make any written, oral, or electronic statement to anymember of the public, the press, or any City employee concerning theEmployees termination except in the form of a joint press release or statementwhich is mutually agreeable to City and Employee. The joint press release ostatement shall not contain any text or information that is disparaging to eitheparty. Either party may verbally repeat the substance of the joint press releaseor statement in response to any inquiry.The obligations of Employer and Employee under this Section 9 shall survive thtermination of this Ag reemen t.

SECTION 10: Outside ActivitiesEmployee shall not engage in any activity, consulting service or enterprise, focompensation or otherwise, which is actually or potentially in conflict with or inimical to,or which m aterially interferes w ith h is duties and responsibilities to Em ployer.SECTION 11: Moving ExpensesEmployer shall pay to Employee up to $15,000 (Fifteen Thousand Dollars) to reimbursEmployee for specific relocation expenses actually incurred by Employee upon hisrelocation of his residence to Newport Beach should Employee elect to make sucmove. Reimbursement shall be payable no later than six months following the date close of escrow of Employees purchase of a residence in Newport Beach, as morespecifically described in Section 11 herein, or Employees receiving possession of realproperty to be used as his personal residence through a lease with a term of at leasone year.

Page 6 of 9


7/49

SECTION 12: Housing A ssistanceEm ployer recognizes and acc epts it cannot require Em ployee to relocate his residencto the City. Employer shall, however, provide Employee with housing assistance enable and encourage Employee to become a resident of Newport Beach substantiaunder the terms more specifically provided in Exhibit A hereto. Nothing in thAgreement is intended to require Employee to relocate his residence to the City.SECTION 13: IndemnificationConsistent with the California Government Code, Employer shall defend and indemnEm ployee, using legal counsel of Emp loyers choosing, against expense or legal liabilifor acts or omissions by Em ployee occurring within the course and scope of Em ployeesemployment under this Agreement. In the event there is a conflict of interest betweEmployer and Employee in such a case so that independent counsel is required foEmployee, Employer may select the independent counsel after having considered thinput of Employee and shall pay the reasonable fees of such independent counsconsistent with City litigation guidelines and standard rates received by City from itchosen special counsel.SECTION 14: Other Terms and C onditions of EmploymentEmployer may fix other terms and conditions of employment, as it may determine frotime to time, relating to the performance of the Employee, provided such terms conditions are not inconsistent with or in conflict with the provisions of this Agreem ent applicable law.SEC TION 15: NoticesNotice pu rsuant to this Agreem ent shall be given by depositing wdtten notification in tcustody of the United States Postal Se rvice, postage prepaid, addressed as follows:

(1 ) EMPLOYER:City of Newport Beachc/o City Clerk3300 N ewport Blvd.PO Box 1768Newport Beach , California 92658-8915With a courtesy copy to:City AttorneyCity of Newport Beach3300 N ewport Blvd.PO Box 1768Newport Beach , California 92658-8915

(2) EMP LOYEE: David Kiffat the home add ress then shown in Em ployers filesAlternatively, notice required pursuant to this Agreement may be personally sewedthe same mann er as is applicable in civil judicial practice. Notice shall be deem ed givas of the date of personal service or as of the date of deposit of such wdtten notice ithe course of transmission in the United S tates Postal Service as provided by law,

Page 7 of 9


8/49

SECTION 16: General ProvisionsIntegration: This Agreement sets forth the final, complete and exclusivagreement between Employer and Employee relating to the employment oEm ployee by Em ployer. Any prior discussions or representations by or betweenthe parties are merged into this Agreement or are otherwise rendered null andvoid. The parties by mutual written agreement may amend any prevision of thisAgreement dudng the life of the Agreement. Such amendments shall beincorporated and m ade a p art of this Agreement. The foregoing notwithstanding,Employee acknowledges that, except as expressly provided in this Agreemenhis employment is subject to Employers generally applicable rules and policiespertaining to employment matters, such as those addressing equal employmenopportunity, sexual harassment and violence in the workplace, as they currentlyor may in the future exist, and his employment is, and will continue to be, at thewill of the C ity Counc il.Binding Effect: This Agreement shall be binding on the Employer and theEmployee as well as their heirs, assigns, executors, personal representativesand succ essors in interest.Choice of Law: This Agreement shall be interpreted and construed pursuant toand in accordance with the laws of the State of California and all applicable CityCharter previsions, Codes, Ordinances, Policies and Resolutions.Severability: If any prevision of this Agreement is held invalid or unenforceable,the remainder of this Agreem ent shall nevertheless rem ain in full force and effectIf any prevision is held invalid or unenforceable with respect to particularcircumstances, it shall nevertheless remain in full force and effect in all othercircumstances.Employees Independent Review: Employee acknowledges that he has had thopportunity and has conducted an independent review of the financial and legaleffects of this Agreement. Employee acknowledges that he has made anindependent judgm ent upon the financial and legal effects of this Agreement andhas not relied upon any representation of Employer, its officers, agents oremployees other than those expressly set forth in this Agreement. Employeeacknowledges that he has been advised to obtain, and has availed himself oflegal advice with respect to the terms an d provisions of this agreem ent.

Page 8 of 9


9/49

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed onthe dates reflected below each signature.

EMPLOYERCITY OF NEWPORT BEACH,A Munic" I Corp, tion

Edv~ard S~lich, MayorDate:

EMPLOYEE

Date:

APPROVED AS TO FORM

ATTEST:

Leilani Brown,City Clerk

Attachments: Exhibit A - Housing Assistance

AOg-O O538.Approved Final CMR Agreement

Page 9 of 9


10/49

EXHIBIT AHOUSING ASS ISTANCEEmployer shall provide housing assistance to Employee consistent with the followinterms:

Shared equ ity ownership generally consistent with past practice. Sp ecifics to bemutually agreed upon, but with the following general parameters to the extenfeasible: City equity contribution of up to $55 0,000 Loan encumbrances cannot exceed 50% of pum hase price The total of City equity contribution and mortgage loans cannot exceed thepurchase price

City and Kiff to share in appreciation/depreciation of property value on a costbasis in prop ortion to initial equity/loan con tribution of the p arties and reflective oany qu antified, docum ented persona l resources that Kiff invests in remodeling oimproving the property after Kiffs purchase of the property. City must approveany proposed remodel or improvements that are to be reimbursed pursuant tthe Housing Assistance p rovisions prior to their construction and ag ree in writingto their cost so as to avoid dispute over the issue in the future. Thimprovements must be documented hard costs including materials and labor, bushall not include soft costs such as personal efforts of Kiff or other owners. Kifshall have the burden of establishing the cost of all investments into the properthrough appropriate documentation. Kiff to assume 100% responsibility for debt service, maintenance, taxes and aexpenses associated with the residence Kiff to use best efforts to establish residency in Newport Beach w ithin 12 m onthof Effective Date of employment agreement City equity contribution (as adjusted for appreciation/depreciation) to berepayable within 12 months o f termination of emp loyment or retirement

Employer and Employee shall take all reasonably necessary action in good faith inorder to reach mutual agreement on all other terms and conditions reasonabnecessary to carry out the intent of these provisions. Nothing in this agreementhowev er, shall be interpreted as a requiremen t that Employee relocate his residence tthe City.Any dispute over the division of equity in property acquired pursuant this thesprovisions shall be subject to binding arbitration as se t out in Section 7, subsection C othe Agreement.

Exhibit APage i of i


11/49

EMPLOYMENT AGREEMENTThis EMPLOYMENT AGREEMENT ("Agreement") is made effective as of August I~_~_,2009 and is entered into by and between the CITY OF NEW POR T BE ACH, a Californiamunicipal corporation and Charter city, ("Employer" or "City") and DAVID KIFF,("Employee" I an individual.

RECITALSCity ~s a mu nicipal corporation duly organized and validly existing under the laws ofthe State of California with the power to carry on its business as it is now beingconducted under the statutes of the State of California and the Charter of City.

Emp loyee has been employed by City since January 5, 1998 at which time he wasemployed as Assistant to the City Manager,

Co Emp loyee was reclassified to D eputy City Manager in Sep tember 1999 and then toAssistant City Manager on Apd120, 2001.

Per S ection 5 00 of the C ity Ch arter, in mak ing this selection, the City Council hasscreened all qualified applicants and other qualif ied p ersons know n by the C ouncilto be available.

The City Council believes Employee to be the best qualified on the basis ofexecu tive and adm inistrative qualifications, with special reference to the expe rienceand knowledge of accepted practice in respect to the duties of the office of CityManager as set forth in the City Charter.

Fo The City desires to employ Employee as City Manager and to enter into anAgreement with Employee upon the terms and conditions in this Agreement.

Employee is willing to accept such employment on the terms and conditions setforth in this Agreement.

NOW, THEREFORE, it is mutually agreed by and between the undersigned parties asfollows:

Page 1 of 9


12/49

SECTION 1: TermUnless sooner terminated, as provided in this Agreement, this Agreeme nt shall remainin full force and effect from September 12, 2009 ("Effective Date"), to and includingSeptember 11,2011, subject to renewal upon the mutual agreement of both parties.SECTION 2: Duties and AuthorityEmployer agrees to employ Employee as City Manager to exercise the powers andauthority and to perform the functions and duties specified in the Newport Beach CityCharter and Mu nicipal Co de and all relevant resolutions, rules, regulations, proced ures,applicable job description(s) and state codes, as they currently or may in the futureexist. Employee shall exercise such power and authority and perform such otherfunctions and duties, not inconsistent with this Agreement, as Employer, by its CityCouncil, may legally assign.SECTION 3: C ompensation

Bo

Effective September 12, 2009, Employer agrees to pay Employee an annualbase salary of $225,000 (Two Hundred Twenty-Five Thousand Dollars), subjectto deduction and withholding of any and all sums required for federal or stateincome tax, social secudty tax and all other taxes, deductions or withholdingsrequired by then current state, federal or local law, prorated and paid onEmployers normal paydays for other management employees. Employer shallalso deduct sum s Em ployee is obligated to pay be cause of pa rticipation in plansor programs de scribed in Se ction 4 of this Agreemen t. The annual base salary ofEm ployee shall be established by resolution of the City Coun cil. This Agreem entshall be deemed amended whenever the City Council adopts a resolutionchanging the base sa lary of the City Man ager or the mann er (but not the amo unt)in which man agement em ployees are paid.Employer, by the City Council, and Employee will promptly set mutually agreedgoals for the first twelve (12) months of this Agreement. Employer, by the CityCouncil, shall conduct an initial evaluation of Employees performance promptlyfollowing the six (6) month anniversary of the Effective Date of this Agreement,with annual evaluations beginning at the one year anniversary of the EffectiveDate of this Agreement.Employees compensation as discussed under this section is not tied to thecompensation of any other City employee or group of City employees except asexpressly provided in this Agreem ent.

SECTION 4: Employee BenefitsAo Flex Leave. Em ployee shall accumulate Flex Leave as provided in the Citys Keyand Management Compensation Plan, Executive Management category("Compensation Plan"), at the current rate of 27 d ays per yea r, As Em ployee is acurrent employee of City, his current maximum accrual rate will be increasedfrom 648 hours to 1,000 hours effective September 12, 2009. The dght to sellback accum ulated Flex Leave sh all be consistent with the Com pensa tion Plan.

Administrative Leave. Employee shall be entitled to one-hundred and twenty(120) hours of administrative leave per calendar year. Administrative leave willnot accrue from calendar year to calendar year and must be used or lost at thePage 2 of 9


13/49

conclusion of each calenda r. Consistent with the Com pens ation Plan, there is noright to sell back any accum ulated Administrative Leave.Additional Benefits. Employee shall receive the same health insurance andretirement benefits, and be entitled to participate in plans and programs such ashort term and long term disability plans, life insurance plans, and deferredcom pensa tion p lans, as are available to non-pu blic safety emp loyees of the City,as provided in the Compensation Plan. This Agreement shall be deemedamended as to these benefits, and these benefits only, whenever the CityCouncil adopts a resolution or takes action changing these benefits under theCompensation Plan.Annual Physical Exam. Employee may undergo an annual physical examinationand C ity shall reimbu rse Em ployee for the actual cost of the exa mination up to amaximum of one thousand dollars ($1,000.00).

Eo Automobile Allowance. Employees duties require him to be available andrespond to deman ds of City business at all times and outside of regular businesshours, including weekends. E mp loyer shall, therefore, pay to Em ployee $500 permonth as an automobile allowance so that Employee may respond to thesedem ands of City business.Amendment. Employees benefits provided under this Section 4 are not tied tothe comp ensation of any other City emp loyee or group of City emp loyees exceptas exp ressly provided in this Section.

SECTION 5: General Business ExpensesEmployer recognizes that Employee may incur expenses of a non-personal, jobrelated nature that are reasonably nece ssary to Em ployees service to Emp loyer.Employer agrees to either pay such expenses in advance or to reimburse theexpenses, so long as the expenses are incurred and submitted according toEmp loyers normal expense reimbursement p rocedures or such other procedureas may be designated by the City Council. To be eligible for reimbursement, allexpenses must be supported by documentation meeting Employers normalrequirements and must be submitted within time limits established by E mp loyer.

ao Employer agrees to budget and pay for professional dues, membership andsubscriptions of Employee necessary for continuation and participation in theInternational City/County Management Association (ICMA), CaI-ICMA, theCalifornia City Managers Foundation (CCMF), and state and national League ofCities and such other organizations as Emp loyer and Emp loyee may agree fromtime to time.Employer agrees to budget and to reimburse or pay for reasonable costs forattendance and participation in meetings, institutes, training programs,conferences, conventions and similar gatherings that support leadershipdevelopment and the advancement of Employer and Employees mutuallyagreed upon goals, and which are related to Employees duties or Employersoperations and held in the continental United States. For purposes of thisparagrap h, reasonable exp enses are limited to the reasona ble and actual cost ofregistration, airfare (where applicable), ground transportation and meals.

Page 3 of 9


14/49

Reasonable expenses will also include the reasonable and actual cost of lodgingfor meetings outside of Orange County.The exp enses to be budgeted and paid in this Section 5, Paragraphs A, B, and Cabove, are exc lusive of reasonable expenses related to events, participation inorganizations, or attendance at events or meetings on behalf of the City asrequired by the City Council. Employer will separately budget and pay formembership and participation in community, civic or other organizations orevents in which Em ployer requires Employee to p articipate.

SECTION 6: At-Will Employment RelationshipCons istent with Article V of the City Charter and New port Beach M unicipal CodeChapter 2.08, Employee is appointed by, and serves at the pleasure of, the CityCouncil. Nothing in this Agreement shall prevent, limit or otherwise interfere withthe dght of Employer to terminate this Agreement and the employment ofEm ployee at any time, with or without cause. Emp loyer shall pay E mp loyee for allservices through the Effective Date of termination and Employee shall have noright to any additional compensation or payment, except as provided in Section7, Severance, below.Nothing Jn this Agreeme nt shall prevent, limit or otherwise interfere with the dgh tof Employee to resign from his employment with Employer, subject only toEmployee providing one hundred and twenty (120) calendar days pdor writtennotice to Employer.

SECTION 7: Severance and B enefit Payoff at TerminationIf Employer terminates this Agreement (thereby terminating EmployeesEm ployme nt) without cause, as determined by the affirmative votes of m ajority ofthe members of the City Council at any regular meeting as required by Section506 of the City Charter, Employer shall provide Employee with forty-five (45)calendar days wdtten notice and shall pay Em ployee severance as follows:

If termination is effective on or before October 31, 2010, Employer shallpay Employee a lump sum severance benefit equal to twelve (12) m onthsof his then applicable base salary, and provide twelve (12) months ofmedical benefits as provided under the Compensation Plan beginning onthe Effective Date of termination.If termination is effective from November 1, 2010 up to and includingSeptember 10, 2011, Employer shall pay Employee a lump sumseverance benefit equal to nine (9) months of his then applicable basesalary, and prov ide nine (9) months of medical benefits as provided und erthe Com pensation Plan beg inning on the Effective D ate of termination.If termination, including by non-renewa l of this Agreem ent, is effective onSeptember 11,2011 or any date thereafter, Employer shall pay Employeea lump sum severance benefit equal to six (6) months of his thenapplicable base salary, and provide six (6) months of medical benefits asprovided under the Com pens ation Plan beginning on the Effective Date oftermination.

Page 4 of 9


15/49

If Employer terminates this Agreement (thereby terminating EmployeesEmployment) with cause, as determined by the affirmative votes of majodty ofthe 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;

Conviction of a misdemeanor arising out of Employees duties under thisAgreem ent and involving a willful or intentional violation of law;3. Willful abandonment of duties;

A pattern of repeated, willful and intentional failure to carry out materiallysignificant and legally constituted policy decisions of the City Councilmade by the City Council as a body; ando Any other intentional or grossly negligent action or inaction by Employeethat materially and substantially: (a) impedes or disrupts the operations of

Employer or its organizational units; (b) is detrimental to employee orpublic safety; (c) violates properly established rules or procedures ofEmp loyer causing a m aterial and substantial adverse impact on Em ployer;or (d) has a material and substantial adverse effect on Employersinterests as clearly defined and delineated by properly established CityCouncil action taken by the Council as a body, policy, regulations,ordinances, or Charter provisions of Employer.Except as otherwise mutually agreed, any dispute as to whether severance isexcused under S ection 7, Paragraph B, S ub-Paragraphs 3, 4 and 5, above, shallbe referred to binding a rbitration be fore a single neu tral arbitrator selected from alist of seven (7) arbitrators requested from the California State Mediation andConciliation Service. Employer will strike the first name and the parties willalternate stdking names until one person is left who shall be designated as thearbitrator. The arbitrators decision will be final and binding with no right ofappeal.Consistent with the provisions of Section 506 of the City Charter, in no event m ayEmployee be terminated within ninety (90) days after any municipal election forthe selection or recall of one or m ore m embers of the C ity Coun cil.

E. If Employee terminates this Agreement (thereby terminating EmployeesEm ployment), Employee shall not be entitled to any se verance.Up on termination (regardless of reason), Em ployee shall be compen sated for allaccrued but unused Flex Leav e. No com pens ation shall be paid for any accruedbut unused administrative leave.

SECTION 8: Em ployees Obligations and H ours of Wo rkEmployee shall devote his full energies, interest, abilities and productive time to theperformance of this Agreement and utilize his best efforts to promote Employersinterests. Em ployees duties may involve exp enditures of time in excess of the regularlyestablished workday or in excess of a forty (40) hour workweek and may also includetime outside normal office hours (including attendance at City Council meetings).

Page 5 of 9


16/49

Emp loyees base salary includes com pensation for all hours worked and E mp loyee shallbe classified as an exempt employee for purposes of overtime and shall not be entitledto any form of compensation for overtime. In recognition of the significant timeEmployee will need to devote outside normal office hours to business activities ofEmployer and the exempt, saladed nature of the employment, employee is permitted toexercise a flexible work schedule. However, consistent with this flexibility andEmployees participation in activities out of the office, Employee will generally beexpected to keep office hours at City Hall, Monday through Fdday dudng normalbusiness hours.SECTION 9: Confidentiality and Non-Disparagement

Employee acknowledges that in the course of his employment contemplatedherein, Emp loyee will be given or will have ac cess to confidential and p roprietarydocuments and information, relating to the City, its residents, businesses,employees, and customers ("Confidential Information"). Such ConfidentialInformation may include, but is not limited to, all information given to o r otherwiseaccessible to Employee that is not public information or would be exempt frompublic disclosure as confidential, protected, exempt or privileged information.Employee shall hold the Confidential Information in trust for Citys benefit, andshall not disclose the Confidential Information to others without the expresswdtten consent of City. All Confidential Information shall be promptly returned tothe City immediately upon the effective date of any severance of em ployment.In the event the City terminates Employee with or without cause, the City andEmployee agree that no member of the City Council, the city management staff,nor the Employee shall make any wdtten, oral, or electronic statement to anymember of the public, the press, or any City employee concerning theEmployees termination except in the form of a joint press release or statement,which is mutually agreeable to City and Employee. The joint press release orstatement shall not contain any text or information that is disparaging to eitherparty. Either party may verbally repeat the substance of the joint press releaseor statement in response to any inquiry.The obligations of Employer and Employee under this Section 9 shall survive thetermination of this A greement.

SECTION 10: Outside ActivitiesEmployee shall not engage in any activity, consulting service or enterprise, forcom pensa tion or othenN ise, which is actually or po tentially in con flict with or inimical to,or which materially interferes with his duties and responsibilities to Employer.SECTION 11: Movina Ex~)ensesEmployer shall pay to Employee up to $15,000 (Fifteen Thousand Dollars) to reimburseEmployee for specific relocation expenses actually incurred by Employee upon hisrelocation of his residence to Newport Beach should Employee elect to make such amove. Reimbursement shall be payable no later than six months following the date ofclose of escrow of Employees purchase of a residence in Newport Beach, as morespecifically described in Section 11 herein, or Employees receiving possession of realproperty to be used as his personal residence through a lease with a term of at leastone year.

Page 6 of g


17/49

SECTION 12: Housing As sistanceEm ployer recognizes and a ccepts it canno t require Em ployee to relocate his residenceto the City. Employer shall, however, provide Employee with housing assistance toenable and encourage Employee to become a resident of Newport Beach substantiallyunder the terms more specifically provided in Exhibit A hereto. Nothing in thisAgreement is intended to require Em ployee to relocate his residence to the City.SECTION 13: IndemnificationConsistent with the Califomia Government Code, Employer shall defend and indemnifyEm ployee, using legal counse l of Employers choosing, aga inst expense or legal liabilityfor acts or omissions by Emp loyee occurring within the course and scope of Emp loyeesemployment under this Agreement. In the event there is a conflict of interest betweenEmployer and Employee in such a case so that independent counsel is required forEmployee, Employer may select the independent counsel after having considered theinput of Employee and shall pay the reasonable fees of such independent counselconsistent with City litigation guidelines and standard rates received by City from itschosen sp ecial counsel.SECTION 14: Other Terms and Conditions of Employm entEmployer may fix other terms and conditions of employment, as it may determine fromtime to time, relating to the performance of the Employee, provided such terms andconditions are not inconsistent with or in conflict with the previsions of this Agreement orapplicable law.SECTION 15: N oticesNotice pursua nt to this Agreem ent shall be given by depo siting written n otification in thecustody of the United S tates Po stal Service, postage p repaid, addressed as follows:

( 1 ) EMPLOYER:City of Newp ort Beachc/o City Clerk3300 New port Blvd.PO Box 1768Newp ort Beach, California 92658-8915With a courtesy copy to:City AttorneyCity of Newport Beach3300 Ne wport Blvd.PO Box 1768Newp ort Beach, California 92658-8915

(2) EMPLO YEE: David Kiffat the home address then show n in Em ployers fi lesAlternatively, notice required pursuant to this Agreement may be personally served inthe sam e m anner as is ap plicable in civil judicial practice. Notice shall be deem ed givenas of the date of personal service or as of the date of deposit of such written notice inthe course of transmission in the United States Postal Service as p rovided by law.

Page 7 of 9


18/49

SECTION 16: General ProvisionsIntegration: This Agreement sets forth the final, complete and exclusiveagreement between Employer and Employee relating to the employment ofEm ployee by Em ployer. Any prior discussions or representations by or betweenthe parties are merged into this Agreement or are otherwise rendered null andvoid. The parties by mutual written agreement may amend any provision of thisAgreement dudng the life of the Agreement. Such amendments shall beincorporated and m ade a pa rt of this Agreem ent. The foregoing notwithstanding,Employee acknowledges that, except as expressly provided in this Agreement,his employment is subject to Employers generally applicable rules and policiespertaining to employment matters, such as those addressing equal employmentopportunity, sexual harassment and violence in the workplace, as they currentlyor may in the future exist, and his employment is, and will continue to be, at thewill of the City Counc il.Binding Effect: This Agreement shall be binding on the Employer and theEmployee as well as their heirs, assigns, executors, personal representativesand succe ssors in interest.Choice of Law: This Agreement shall be interpreted and construed pursuant toand in accordance with the laws of the State of California and all applicable CityCharter previsions, Cod es, Ordinances, Po licies and Resolutions.Severability: If any prevision of this Agreement is held invalid or unenforceable,the remainder o f this Ag reement sha ll nevertheless remain in full force and e ffect.If any provision is held invalid or unenforceable with respect to particularcircumstances, it shall nevertheless remain in full force and effect in all othercircumstances.Employees Independent Review: Employee acknowledges that he has had theopportunity and has conducted an independent review of the financial and legaleffects of this Agreement. Employee acknowledges that he has made anindepen dent judgm ent upon the financial and legal effects of this Agreem ent andhas not relied upon any representation of Employer, its officers, agents oremployees other than those expressly set forth in this Agreement. Employeeacknowledges that he has been advised to obtain, and has availed himself of,legal advice with respect to the terms an d provisions of this agreem ent.

Page 8 of 9


19/49

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed onthe dates reflected below each signature.EMPLOYERCITY OF NEW PORT BEACH,A Muni " I Corp, tion

Edv~ard S elich, MayorDate:

EMPLOYEE

APPROVED AS TO FORM

Date:ATTEST:

LeilanrBrown,City Clerk

A ttachm ents: E xhibit A - H ousing A ssistance

AO 9-OO 538.Approved F~al CMR Agreement

Page 9 of 9


20/49

EXHIBIT AHOUSING ASSISTANCEEmployer shall provide housing assistance to Employee consistent with the followingterms:

Sh ared eq uity ownership gen erally consistent with past practice. Specifics to bemutually agreed upon, but with the following general parameters to the extentfeasible:City equity contribution of up to $550,000

Loan encumbrances cannot exceed 50% of purchase priceThe total of City equity contribution and mortgage loans cannot exceed thepurchase pdceCity and Kiff to share in appreciation/depreciation of property value on a costbasis in propo rtion to initial equity/loan con tribution of the pa rties and reflective ofany qu antified, docum ented pe rsonal resources that Kiff invests in rem odeling orimproving the property after Kiffs purchase of the property. City must approveany proposed remodel or improvements that are to be reimbursed pursuant tothe Hou sing Assistance provisions pdo r to their construction an d agree in writingto their cost so as to avoid dispute over the issue in the future. Theimprovem ents must be docum ented hard costs including ma terials and labor, butshall not include soft costs such as personal efforts of Kiff or other owners. Kiffshall have the burden of establishing the cost of all investments into the propertythrough approp riate docum entation.

Kiff to assume 100% responsibility for debt service, maintenance, taxes and allexpen ses associated with the residence Kiff to use best efforts to establish residency in Ne wp ort Beach w ithin 12 m onthsof Effective Date of emp loyment agreemen t City equity contribution (as adjusted for appreciation/depreciation) to berepayable within 12 mo nths of termination of emp loyment or retiremen t

Employer and Employee shall take all reasonably necessary action in good faith inorder to reach mutual agreement on all other terms and conditions reasonablynecessary to carry out the intent of these provisions. Nothing in this agreement,how ever, shall be interpreted as a requiremen t that Em ployee relocate his residence tothe City.Any dispute over the division of equity in property acquired pursuant this theseprovisions shall be subject to binding arbitration as set out in S ection 7, subsection C o fthe Agreement.

Exhibit APage i of i


21/49

RESOLUTION NO. 200 9-61A RESOLU TION OF THE CITY COUNCIL OF THE CITY OFNEWPORT BEACH APPOINTING DAVID KIFF CITY MANAGER

WHE REAS , the City of Newport Beach is organized under the Council-Manager form ofgovernm ent and its current City Manage r, Homer Bludau, is retidng effective September 11, 2009;WHEREAS, the City Council has conducted a national recruitment to identify the best andmost qua lified candidate to serve as C ity Manager for the City of Newpo rt Beach to carry out theobjectives and priorities of the C ity Council and has determined that David Kiff is that individual;WHEREAS, Mr. Kiff has served the City as an employee with increasing levelsofresponsibility since 1998, and ha s exhibited a high de gree of diligence, ethical conduct, and hasfaithfully performed all duties in the past;WHEREAS, the City has routinely waived the requirement that City o~cials post suretybonds w hen it can be shown that the official in question has exhibited a high degree of diligenceand ethical conduct and has faithfully performed p ast duties; andNOW , THEREFORE , BE IT RESOLV ED by the City Council of the City of Newport Beachas follows:1. David Kiff is appo inted as the City Man ager of the City of Newport Beach effectiveSep tember 12, 2009 and shall perform all duties and have a ll powers of that position as set out inthe Charter, ordinances, resolutions, policies and m inute actions of the City Council.2. The City Council hereby approves and authorizes the Mayor to execute David Kiffscontract attached hereto as Exhibit A to serve as C ity Manager for the City of Newpo rt Beach.3. In light of past practice and Dave Kiffs proven record of integrity in public service,we hereby waive the requirement that Mr. ~~~~

ADOPTED, this 18~ day of August 2009.

Edward Selich,the City of Newp ort BeachATI:E~T: .

Leilan~ Brown, City Clerk

Exhibit "A" - City M anager Employment ContractAOg -OO 538/Klf f Ap pointment

-1-


22/49

EMPLOYMENT AGREEMENTThis EMPLOYMENT AGREEMENT ("Agreement") is made effective as of August2009 and is entered into by and between the CITY OF NEW POR T BE ACH, a Califo~-~municipal corporation and Charter city, !"Employer" or "City") and DAVID KIFF,("Employee") an individual. ,

Co

RECITALSCity is a municipal corporation duly organized and validly existing und er the laws ofthe State of Califomia with the power to carry on its business as it is now beingconducted under the statutes of the S t ]te of Califomia and the Charter of City.

Emp loyee has been emp loyed by City since January 5, 1998 at which time h e wasemp loyed as Assistant to the City Man ~ger.

Emp loyee was reclassified to De puty City Man ager in Sep tember 1999 and then toAssistant City Manager on Apd120, 2001.D

Eo

Per S ection 5 00 of the C ity Ch arter, i~ m aking this selection, the C ity Co uncil hasscreened all qualified applicants and other qualif ied p ersons know n by the C ouncilto be available.

The City Council believes Employee to be the best qualified on the basis ofexecutive and adm inistrative qualificati )ns, with spec ial reference to the expe rienceand knowledge of accepted practice in respect to the duties of the office of CityManager as set forth in the City Chart~ ,r.The City desires to employ Employee as City Manager and to enter into anAgreement with Employee upon the tenThS and conditions in this Agreement.Employee is willing to accept such e~nployment on the terms and conditions setforth in this Agreement. ~

NOW, THEREFORE, it is mutually agreed I~y and between the undersigned parties asfollows: /

Page of 9


23/49

SECTION 1: TermUnless sooner terminated, as provided in this Agreement, this Agreement shall remainin full force and effect from September 12, 2009 ("Effective Date"), to and includingSeptember 11,2011, subject to renewal upon the mutual agreement of both parties.SECTION 2: Duties and AuthorityEmployer agrees to employ Employee as City Manager to exercise the powers andauthority and to perform the functions and duties specified in the Newport Beach CityCha rter and Mu nicipal Code an d all relevant resolutions, rules, regulations, procedu res,applicable job description(s) and state codes, as they currently or may in the futureexist. Employee shall exercise such power and authority and perform such otherfunctions and duties, not inconsistent with this Agreement, as Employer, by its CityCouncil, may legally assign.SECTION 3: Compensation

Effective September t2, 2009, Employer agrees to pay Employee an annualbase salary of $225,000 (Two Hundred Twenty-Five Thousand Dollars), subjectto deduction and withholding of any and all sums required for federal or stateincome tax, social security tax and all other taxes, deductions or withholdingsrequired by then current state, federal or local law, prorated and paid onEmployers normal paydays for other management employees. Employer shallalso deduct sum s Em ployee is obligated to pay be cause of participation in plansor programs de scribed in Se ction 4 o f this Agreeme nt. The annual base salary ofEm ployee sha ll be established by resolution of the City Council. This Agreem entshall be deemed amended whenever the City Council adopts a resolutionchanging the base salary of the City Manager or the ma nner (but not the amount)in which man agem ent employees are paid.Employer, by the City Council and Employee will promptly set mutually agreedgoals for the first twelve (12) months of this Agreement. Employer, by the C tyCouncil, shall conduct an initial evaluation of Employees performance promptlyfollowing the six (6) month anniversary of the Effective Date of this Agreement,with annual evaluations beginning at the one year anniversary of the EffectiveDate of this Agreement.Employees compensation as discussed under this section is not tied to thecompensation of any other City employee or group of City em ployees except asexpressly provided in this Agreeme nt.

SECTION 4: Em ployee BenefitsFlex Leave. Employee shall accumulate Flex Leave as provided in the Citys Keyand Management Compensation Plan, Executive Management category("Compensation Plan"),.at the current rate of 27 days p er year. As Em ployee is acurrent employee of C~ty, his current maximum accrual rate will be increasedfrom 648 hours to 1 000 hours effective September 12, 2009. The right to sellback accum ulated Flex Leave shall be consistent with the Compe nsat on P an.Administrative Leave. Employee shall be entitled to one-hundred and twenty(120) hours of administrative leave per calendar year. Administrative leave willnot accrue from calendar year to calendar year and must be used or lost at the

Page 2 of 9


24/49

conclusion of each calendar. Con sistent with the Com pensation Plan, there is nodght to sell back any accumulated Adm inistrative Leave.Additional Benefits. Employee shall receive the same health insurance andretiremen t benefits, and be en titled to participate in plans an d program s such a sshort term and long term disability plans, life insurance plans, and deferredcom pensa tion p lans, as are available to non-pu blic safety emp loyees of the City,as provided in the Compensation Plan. This Agreement shall be deemedamended as to these benefits, and these benefits only, whenever the CityCouncil adopts a resolution or takes action changing these benefits under theCompensation Plan.Annual Physical Exam. Employee may undergo an annual physical examinationand C ity shall reimburse Em ployee for the actual cost of the examination up to amaxim um of one thousand dollars ($1,000.00).

Eo Automobile Allowance. Employees duties require him to be available andrespond to deman ds of City business at all times and outside of regular businesshours, including weekends. E mp loyer shall, therefore, pay to Em ployee $500 permonth as an automobile allowance so that Employee may respond to thesedema nds of City business.Amendment. Employees benefits provided under this Section 4 are not tied tothe comp ensation of any other City em ployee or group of City emp loyees excep tas exp ressly provided in this Section.

SECTION 5: General Business ExpensesAJ Employer recognizes that Employee may incur expenses of a non-personal, jobrelated nature that are reasonably nece ssary to Em ployees service to Emp loyer.

Employer agrees to either pay such expenses in advance or to reimburse theexpenses, so long as the expenses are incurred and submitted according toEmp loyers normal ex pense reimbursement p rocedures or such other procedureas may be designated by the City Council. To be eligible for reimbursement, allexpenses must be supported by documentation meeting Employers normalrequirements and m ust be subm itted within time limits established by Emp loyer.Employer agrees to budget and pay for professional dues, membership andsubscriptions of Employee necessary for continuation and participation in theInternational City/County Management Association (ICMA), CaI-ICMA, theCalifornia City Managers Foundation (CCMF), and state and national League ofCities and such other organizations as Emp loyer and Emp loyee may agree fromtime to time.Employer agrees to budget and to reimburse or pay for reasonable costs forattendance and participation in meetings, institutes, training programs,conferences, conventions and similar gatherings that support leadershipdevelopment and the advancement of Employer and Employees mutuallyagreed upon goals, and which are related to Employees duties or Employersoperations and held in the continental United States. For purposes of thisparagraph, reasonable expenses are limited to the reasonable and a~ual cost ofregistration, airfare (where applicable), ground transportation and meals.

Page 3 of 9


25/49

Reasonable expenses will also include the reasonable and actual cost of lodgingfor meetings outside of Orang e Cou nty.The exp enses to be budgeted and paid in this Section 5, Paragraphs A, B, and Cabove, are exclusive of reasonable expenses related to events, participation inorganizations, or attendance at events or meetings on behalf of the City asrequired by the City Council. Employer will s.ep.arately budget and pay formembership and participation in community, CIVIC or other organizations orevents in which Em ployer requires Employee to participate.

SECTION 6: At-Will Employm ent RelationshipConsistent with Article V of the City Charter and New port Beach M unicipal CodeChapter 2.08, Employee is appointed by, and serves at the pleasure of, the CityCouncil. Nothing in this Agreement shall prevent, limit or otherwise interfere withthe right of Employer to terminate this Agreement and the employment ofEmp loyee at any time, with or without cause. Em ployer shall pay Em ployee for allservices through the Effective Date of termination and Employee shall have nodght to any additional compensation or payment, except as provided in Section7, Severance, below.Nothing in this Agreem ent shall prevent, limit or otherwise interfere with the dghtof Employee to resign from his employment with Employer, subject only toEmployee providing one hundred and twenty (120) calendar days prior writtennotice to Employer.

SECTION 7: Severance and Be nefit Payoff at TerminationIf Employer terminates this Agreement (thereby terminating EmployeesEm ploymen t) without cause, as de termined by the affirmative votes of m ajority ofthe members of the City Council at any regular meeting as required by Section506 of the City Charter, Employer shall provide Employee with forty-five (45 )calendar days written notice and shall pay E mp loyee severance as follows:

If termination is effective on or before October 31, 2010, Employer shallpay Employee a lump sum severance benefit equal to twelve (12) monthsof his then applicable base salary, and provide twelve (12) months ofmedical benefits as provided under the Compensation Plan beginning onthe Effective Date of termination.If termination is effective from November 1, 2010 up to and includingSeptember 10, 2011, Employer shall pay Employee a lump sumseverance benefit equal to nine (9) months of his then applicable basesalary, and prov ide nine (9) months of medical benefits as provided und erthe Com pensation Plan beg inning on the Effective D ate of termination.If termination, including by non-renewa l of this Agreem ent, is effective onSep tember 11,2011 or any date thereafter, Employer shall pay E,m, ployeea lump sum severance benefit equal to six (6) months of h=s thenapplicable base salary, and provide six (6) months of medical benefits asprovided under the Com pensa tion Plan beginning on the Effective Date oftermination.

Page 4 of 9


26/49

If Employer terminates this Agreement (thereby terminating EmployeesEmployment) with cause, as determined by the affirmative votes of majority ofthe 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 m e a n any of the following:1. Conv iction of a felony;Conviction of a misdemeanor arising out of Employees duties under thisAgreem ent and involving a willful or intentional violation of law ;

Willful abandonment of duties;A pattern of repeated, willful and intentional failure to carry out materiallysignificant and legally constituted policy decisions of the City Councilmade by the City Council as a body; and

o Any other intentional or grossly negligent action or inaction by Employeethat materially and substantially: (a) impedes or disrupts the operations ofEmployer or its organizational units; (b) is detrimental to employee orpublic safety; (c) violates propedy established rules or procedures ofEm ployer causing a material and substantial adverse imp act on Em ployer;or (d) has a matedal and substantial adverse effect on Employersinterests as clearly defined and delineated by properly established CityCouncil action taken by the Council as a body, policy, regulations,ordinances, or Charter provisions of Employer.

Except as otherwise mutually agreed, any dispute as to whether severance isexcused under S ection 7, Paragraph B, S ub-Paragraphs 3, 4 and 5, above, shallbe referred to binding a rbitration before a sing le neutral arbitrator selected from alist of seven (7) arbitrators requested from the California State Mediation andConciliation Service. Employer will strike the first name and the parties willalternate striking names until one person is left who shall be designated as thearbitrator. The arbitrators decision will be final and binding with no dght ofappeal.Consistent with the provisions of Section 506 of the City Charter, in no event mayEmployee be terminated within ninety (90) days after any municipal election forthe selection or recall of one or m ore me mbers of the C ity Coun cil.If Employee terminates this Agreement (thereby terminating EmployeesEm ployment), Employee shall not be entitled to any se verance.Up on termination (regardless of reason), Em ployee shall be compen sated for allaccrued but unused Flex Leav e. No com pens ation shall be paid for any accruedbut unused a dministrative leave.

SECTION 8: Em ployees Obligations and H ours of Wo rkEmployee shall devote his full energies, interest, abilities and productive time to theperformance of this Agreement and utilize his best efforts to promote Employersinterests. Em ployees duties may involve exp enditures of time in excess of the regularlyestablished workday or in excess of a forty (40) hour workweek and may also includetime outside normal office hours (including attendance at City Council meetings).

Page 5 of 9


27/49

Em ployees base salary includes com pensa tion for all hours worked a nd Em ployee shallbe classified as an exempt employee for purposes of overtime and shall not be entitledto any form of compensation for overtime. In recognition of the significant timeEmployee will need to devote outside normal office hours to business activities ofEmployer and the exempt, salaried nature of the employment, employee is permitted toexercise a flexible work schedule. However, consistent with this flexibility andEmployees participation in activities out of the office, Employee will generally beexpected to keep office hours at City Hall, Monday through Friday dudng normalbusiness hours.SECTION 9: Confidentiality and Non-Disparagement

Employee acknowledges that in the course of his employment contemplatedherein, Emp loyee will be given or will have access to confidential and p roprietarydocuments and information, relating to the City, its residents, businesses,employees, and customers ("Confidential Information"). Such ConfidentialInformation m ay include, but is not l imited to, all information given to or otherwiseaccessible to Employee that is not public information or would be exempt frompublic disclosure as confidential, protected, exempt or privileged information.Employee shall hold the Confidential Information in trust for Citys benefit, andshall not disclose the Confidential Information to others without the expresswritten consent of City. All Confidential Information shall be promptly returned tothe City imm ediately upon the effective date of any severance of em ployme nt.In the event the City terminates Employee with or without cause, the City andEm ployee agree that no mem ber of the City Council, the city man agem ent staff,nor the Employee shall make any written, oral, or electronic statement to anymember of the public, the press, or any City employee concerning theEmployees termination except in the form of a joint press release or statement,which is mutually agreeable to City and Employee. The joint press release orstatement shall not contain any text or information that is disparaging to eitherparty. Either party may verbally repeat the substance of the joint press releaseor statement in response to any inquiry.The ob ligations of Emp loyer and Em ployee unde r this Sec tion 9 shall survive thetermination of this Agreem ent.

SECTION 10: Outside ActivitiesEmployee shall not engage in any activity, consulting service or enterprise, forcom pensa tion o r otherwise, which is actually or p otentially in conflict with or inimical to,or which m aterially interferes with his duties and responsibil ities to Em ployer.SECTION 11: Moving ExpensesEm ployer shall pay to Em ployee up to $15 ,000 (Fifteen Thousan d Do llars) to reimburseEmployee for specific relocation expenses actually incurred by Employee upon hisrelocation of his residence to Newport Beach should Employee elect to make such amove. Reimbursement shall be payable no later than six months following the date ofclose of escrow of Employees purchase of a residence in Newport Beach, as morespecifically described in Section 11 h erein, or Emp loyees receiving posses sion of realproperty to be used as his personal residence through a lease with a term of at leastone year.

Page 6 of 9


28/49


29/49

SECTION 16: General ProvisionsIntegration: This Agreement sets forth the final, complete and exclusiveagreement between Employer and Employee relating to the employment oEmployee by Employer. Any prior discussions or representations by or betweenthe parties are merged into this Agreement or are othentcise rendered null andvoid. The parties by mutual written agreement may amend any provision of thisAgreement during the life of the Agreement. Such amendments shall beincorporated and m ade a pa rt of this Agreem ent. The foregoing notwithstanding,Employee acknowledges that, except as expressly provided in this Agreementhis employment is subject to Employers generally applicable rules and policiespertaining to employment matters, such as those addressing equal employmenopportunity, sexual harassment and violence in the workplace, as they currentlyor may in the future exist, and his employment is, and will continue to be, at thewill of the City Council.

go Binding Effect: This Agreement shall be binding on the Employer and theEmployee as well as their heirs, assigns, executors, personal representativesand successors in interest.Co Choice of Law: This Agreement shall be interpreted and construed pursuant toand in accordance with the laws of the State of California and all applicable CityCharter provisions, Co des, O rdinances, Policies and Resolutions.Do Severability: If any provision of this Agreement is held invalid or unenforceable,the rema inder of this Agreem ent shall nevertheless remain in full force and effect.If any provision is held invalid or unenforceable with respect to particularcircumstances, it shall nevertheless remain in full force and effect in all othercircumstances.Eo Employees Independent Review: Employee acknowledges that he has had theopportunity and has conducted an independent review of the financial and legaleffects Of this Agreement. Employee acknowledges that he has made anindependent judgme nt upon the financ ial and legal effects of this Agreem ent andhas not relied upon any representation of Employer, its officers, agents oremployees other than those expressly set forth in this Agreement. Employeeacknowledges that he has been advised to obtain, and has availed himself of,legal advice with respect to the terms and provisions of this agreem ent.

Page 8 of 9


30/49

IN WITNESS WH EREOF, the par~ies have caused this Agreemen t to be executed onthe dates reflected below each signature.EMPLOYERCITY OF NEWPORT BEACH,A Municipal Corporation EMPLOYEE

By: By:Edward Selich, Mayor David K iffDate: Date:APPROVED AS TO FORM

By: David R . Hunt, City AttorneyDate:ATTEST:By: Leilani Brown,City Cle~,

Attachments: Exhibit A - Housing Assistance

AO g.OO 538,Ap proved Final CMR A greement

Page 9 of 9


31/49

EXHIBIT AHOUSING ASSISTANCEEmployer shall provide housing assistance to Employee consistent with the followingterms:

Sha red equity ownership g enerally consistent with past practice. Sp ecifics to bemutually agreed upon, but with the following general parameters to the extentfeasible: City equity contribution of up to $550,000 Loan encum brances cannot exceed 50% of purchase price The total of City equity contribution and mortgage loans cannot exceed thepurchase price

City and Kiff to share in appreciation/depreciation of property value on a costbasis in prop ortion to initial equity/loan centdbution of the pa rties and reflective ofany qua ntified, documen ted personal resources that Kiff invests in remo deling orimproving the property after Kiffs purchase of the property. City must approveany proposed remodel or improvements that are to be reimbursed pursuant tothe Hous ing Assistance p rovisions prior to their construction and ag ree in writingto their cost so as to avoid dispute over the issue in the future. Theimprovem ents must be docum ented hard costs including matadals and labor, butshall not include soft costs such as personal efforts of Kiff or other owners. Kiffshall have the burden of establishing the cost of all investments into the propertythrough appropriate documentation.

Kiff to assume 100% responsibility for debt service, maintenance, taxes and allexpenses associated with the residence Kiff to use be st efforts to establish residency in Ne wpo rt Beach w ithin 12 m onthsof Effective Date of emp loyment agreement City equity contribution (as adjusted for appreciation/depreciation) to berepayable within 12 months o f termination of emp loyment or retirement

Employer and Employee shall take all reasonably necessary action in good faith inorder to reach mutual agreement on all other terms and conditions reasonablynecessary to carr~ out the intent of these provisions. Nothing in this agreement,however, shall be =nterpreted as a requirement that Em ployee relocate his residence tothe City.Any dispute over the division of equity in property acquired pursuant this theseprovisions shall be subject to binding arbitration as set out in Se ction 7, subsection C ofthe Agreement.

Exhibit AP a s e 1 of I


32/49

STATE OF CALIFORNIA }COUNTY OF ORANGE }CITY OF NEWPO RT BEACH }

I, Leflani I. Brown, City Clerk of the City of Newport Beach, California, do herebycertify 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 CityCouncil of said City at a regular meeting of said Council, duly and regularly held on the 18th day ofAugust, 2009, and that the same was so passed and adopted by the following vote, to wit:Ayes: Rosansky, Curry, Gardner, Daigle, Mayor SelichNoes: NoneAbsent: Henn, WebbAbstain: None

IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed theofficial seal of said City this 19th day of August, 2009.

Newport Beach, California

(Seal)


33/49

HOUSING ASSISTANCE AGREEMENTBETWEEN THE CITY OF NEWPO RT BEACH AND DAVID KIFFTO SHARE EQUITY FOR THE REAL PROPERTY LOCATED AT378 23rd Street, Newp ort Beach, California (APN #119-333-12)

THIS HOUSING ASSISTANCE AGREEMENT ("Agreement") is entered into this13th Day of October 2009 by and between the City of Newport Beach, a Californiamunicipal corporation and Charter City ("City") and David Kiff, an individual("Employee ") and is made w ith reference to the following:RECITALS

A. City is a municipal corporation duly organized and validly existing underthe laws of the State of California with the power to carry on its business as it is nowbeing cond ucted und er the statutes of the State of California and the Citys Cha rter.B. On September 12, 2009, Employee entered into an EmploymentAgreem ent with City to serve as Citys City Manag er.C. Section 12 and Exhibit "A" of the Employment Agreement provideincentives to the Employee in the form of an equity contribution of up to Five Hundredand Fifty Thousand Dollars ($550,000) to allow Employee to re-locate within theincorporated boundaries of Newport Beach.D. Employee now desires to re-locate his personal residence into the Cityand exercise his rights to the equity contribution.provided in the Em ploymen t Agreem entby purchasing real property located at 378 23Street, Assessor Parcel Number 119-

33 3-1 2 ("Property").E. City desires to provide Employee with an equity contribution to purchasethe Property upon the terms and co nditions contained in this Agreem ent.F. City and Employee acknowledge adequate consideration has beenprovided to induce both parties to enter into this Agreem ent.NOW , THEREFO RE, the parties agree as fol lows:

TERMS AND CONDITIONS1. EQUITY C ONTRIBUTIONPursuant to the August 18, 2009 Employment Agreement between the City andEmployee, the City hereby agrees to provide Employee with Four Hundred Seventy-One Thousand Two Hundred Fifty Dollars ($471,250.00) to purchase the Property("Equity Contribution"). $471,250.00 is 50.4% of $935,000.00. The City and Employeewill share in all appreciation/depreciation of the Propertys value on a cost basis inproportion to the Equ ity Contributions overall percentage of the total purchase p rice, as


34/49

Housing Assistance Agreem entPage 2 of 12adjusted by any improvements that the Employee or his contractor makes to theProperty in accordance with Section 2.

At the time the property is sold, the payment made to the City reflective of itsEqu ity Co ntribution ("Final Equity Rep aym ent") shall be m ade in accordan ce with eitherof the below conditions, wh ichever is applicable:If the Property is not improved by the Employee further beyond ordinarymaintenance of the Property, the Final Equity Repayment shall be calculated asfollows:

(Final Property Sale Price - Employee-P aid Closing Costs) X50.4% =

Final Equity RepaymentB. If the Property is improved by the Employee or his contractor in accordance withSection 2 , the Emp loyee sha ll retain all invoices for materials and labor charges a ndhas the burden of establishing the costs of all investments into the Property. Suchimprovements must be documented hard costs including materials and labor("Docum ented Ha rd Costs"), but shall not include soft costs such as persona l effortsof Employee or other owners. In this case, the Final Equity Repayment shall becalculated as follows :

(Final Property Sale Price - Emp loyee-Paid Closing Cos ts - Docum ented Hard Co sts)X

50.4% =Final Equity Repayment

The Equity Contribution (as adjusted for appreciation/depreciation) shall berepaid by the Em ployee to City within twelve (12 ) mon ths of the Em ployees terminationof em ployment or retirement, unless otherwise agreed to by the City in writing.1.1 Employees Financing of Property. Employee shall securefinancing from C ity National Bank or Ban k of Ame rica ("Bank") and enter into Escrow topurchase the Property. Employee shall provide a deposit of five percent (5%) of the

Propertys total purchase price. In addition, Employee shall obtain a conventional loan("Loan") from Bank.1.2. Delivery of Equity Contribution. City shall deposit the EquityContribution in "good funds" according to the terms of Escrow between the Employeeand Bank to purchase the Property. "Good funds" shall mean a wire transfer of funds,check drawn on or issued by the offices of a financial institution located in the State ofCalifornia, or cash.


35/49

Housing Assistance AgreementPage 3 of 122. EMPLOYEES IMPROVEMENTS TO THE PROPERTYWith Citys prior written consent, Employee may remodel or constructimprovements on the Property. The Citys written consent shall contain a dollar amount

agreeable to both parties for the cost of the remodel or improvement(s).Notwithstanding any provision in this Agreement to the contrary, Employee shall beentitled to recover the cos t of the rem odel or improvem ent(s) from the sale or transfer ofthe Prope rty before repaymen t of the Citys Equity Con tribution.3. TAXES, MAINTENANCE AND ASSOCIATED EXPENSESEmployee shall be one hundred percent (100%) responsible for all debt serviceon the loan, maintenance, taxes, liability insurance and any liabilities occurring on orarising from the Property, and any and all expenses associated with the Property. TheCity has no o bligation and a ssum es no liabilities with respec t to the P roperty other than

providing the Equity Contribution in Section 1 of this Agreement. Employee expresslyassum es any and all l iabil ities arising from the P roperty as between he and the City.4. ADDITIONAL DOCUM ENTS REQUIRED FROM CITY AND EM PLOYEE

4.1 City. City agrees that on or before 1:00 p.m. on the business daypreceding the P ropertys Escrow closing date, City will deposit with the escrow holder alladditional docum ents (executed and ackno wledged, if appropriate) which are necessaryto comply with the terms of this Agreement, including, without limitation, items andinstruments as may be necessary for escrow holder to effectuate the terms of thisAgreement.4,2 Employee. Employee agrees that on or before 1:00 p.m. on thebusiness day preceding the Propertys Escrow closing date, Employee will deposit withescrow holder such i tems and instruments (executed and acknow ledged, if appropriate)as ma y be necessa ry for the escrow holder to comply with this Agreeme nt.

5. PROMISSORY NOTE AND RECORDA TION OF DEED OF TRUSTEmployee shall execute in a form substantially similar to Exhibit "A" attachedhereto and incorporated by this reference, a Deed of Trust in favor of City for theamo unt of Citys Equity Contribution ("Second Deed o f Trust"). Within ten (10) businessdays of the Propertys close of Escrow and satisfaction or waiver of all conditionsprecedent, City shall cause the Second Deed of Trust to be recorded with the OrangeCounty Recorders Office with a copy to the City Clerk for the City of Newport Beach.Employee shall also execute in a form substantially similar to Exhibit "B" attachedhereto and incorporated by this reference, a Prom issory Note in favor of the City for theamount of the Citys Equity Contribution secured by the Second Deed of Trust. ThisAgreement, the Promissory Note and the Second Deed of Trust shall act as a "secondmortgage" on the property and sec ure the Citys interest in the Property pursuant to thisAgreement. This Agreement, the Promissory Note and the Second Deed of Trust shall


36/49

Housing Assistance Agreeme ntPage 4 of 12be second to the mortgage secured by Bank but superior to all other liens andencum brances that ma y attach to the Property in the future.

6. CONDITIONS PRECEDENT TO CLOSE OF ESCROW6.1 Conditions to Citys Obligations. The obligations of City underthis Agreement shall be subject to the satisfaction or wdtten waiver, in whole or in part,by City of each o f the following conditions precedent:

(a) City has a pproved in writing the condition(s) of title.(b) Escrow holder holds and will deliver to City the instruments,if any, accruing to City pursuant to this Agreement.(c) The due performance by Employee of each and everyundertaking and agreement to be performed by Employee hereunder, and

representation by Employee of the truth of each representation and warranty made inthis Agreem ent. For purpose s of this subsection (c) only, a represen tation that is l imitedto Employees knowledge or notice shall be false if the factual matter that is subject tothe representation is false, notwithstanding any lack of knowledge or notice toEmployee.(d) Citys approval of any other conditions specified in thisAgreeme~.

In the event ea ch of the co nditions set forth above is not fulfil led or w aivedin writing by City prior to the Propertys Escrow closing date, City may, at its option,terminate this Agreement, thereby releasing both parties from further obligationshereunder (except for those that by their terms survive the termination of thisAgreement), and all funds shall be immediately returned by the Employee/escrowholder to City without notice or further action by either party. Nothing in this sectionshall be construed as releasing any party from liability for any default of its obligationshereunder or breach of its representations and warranties under this Agreementoccurring prior to the term ination o f this Agree me nt.

6.2 Conditions to Employees Obligations. The obligations ofEmployee under this Agreement shall be subject to the satisfaction or written waiver, inwhole or in part, by Employee of each of the following conditions precedent: The dueperformance by City of each and every undertaking and agreement to be performed byCity hereunder.6.3 Satisfaction of Conditions. Where satisfaction of any of theforegoing conditions requires action by City or Employee, each party shall use itsdiligent best efforts, in good faith, and at its own cost, to satisfy such condition. Wheresatisfaction of any of the foregoing conditions requires the approval of a party, suchapproval shall be in such partys sole and abs olute discretion.


37/49

Housing Assistance AgreementPage 5 of 127. ADDITIONAL COVENANTS OF EMPLOYEE

7.1 Environmental Claims. Employee shall retain all liability under allEnvironmental Laws asserted at any time in connection with any set of facts orconditions existing in, on or abou t or arising from the E mployees ow nership/occupancyof the Property ("Retained Environmental Liabilities"). For purposes of this Agreement,"Environmental Laws" shall mean all federal, state or local statutes, regulations,ordinances, codes or rules as such have been or may hereafter be enacted, adopted,amended or supplemented and all common law causes of action relating to theprotection of human health or the environmental, including without limitations theComprehensive Environmental Response, Compensation and Liability Act of 1980, asamended (42 U.S.C. Sections 9601 et seq.), the Resoume Conservation and RecovAct, as amended (42 U.S.C. Sections 6901 et seq.), the Federal W ater Pollution C ontrolAct, as amended (33 U.S.C. Sections 7401, et seq.), the Toxic Substance Control Act,as amended (15 U.S.C. 2601 , et seq.), the Safe Ddnking Water Act, as amended (42U.S.C. Sections 30 0f, et seq.), the Federal Insecticide, Fungicide and Rodenticide Act,as amended (7 U.S.C. Sections 13 6, et seq.) and the Clean Air Act, as amended (42U.S.C. 7401 , et seq.), and pdvate dghts of action for nuisance or damages to propertyor persons. Notwithstanding any other provision of this Agreement, the provisions ofthis section sh all survive the termination of this Agreem ent.

8. REPRESENTATIONS AND WARRANTIES8.1 Representations and Warranties. Employee hereby makes thefollowing rep resentations and wa rranties to C ity, each o f which (i) is material and reliedupon by City in making its determination to enter into this Agreement; and (ii) toEm ployees actual knowledge, is true in all respects as of the date hereof:

(a) There are no pending or threatened litigation, allegations,lawsuits or claims, whether for personal injury, property damage, property taxes,contractual disputes or otherwise, which do or ma y affect the P roperty or the operationor value thereof, and there are no actions or proceedings pending or, to the best ofEm ployees knowledge, threatened against Emp loyee before any court or administrativeagency in any way connected with the Property and neither the entering into of thisAgreement nor the consummation of the transactions contemplated hereby willconstitute or result in a violation or breach by Employee of any judgment, order, writ,injunction or decree issued against or imposed upon him. There is no action, suit,proceeding or investigation pending or threatened against Employee which wouldbecome a cloud on Citys interest in the Property or have a matedal adverse impactupon the Prope rty or any po rtion thereof or w hich questions the va lidity or enforceabilityof the transaction contemplated by this Agreement or any action taken pursuant heretoin any court or before or by any federal, district, county, or municipal department,com mission, board, bureau, agency or other governm ental instrumen tality.(b) There are no contracts or other agreements affecting thePrope rty that would adversely affect Citys dgh ts with respect to the P roperty.


38/49

Housing Assistance Agreeme ntPage 6 of 12(c) There are no contingent liabilities adsing out of theow nership or operation of, or affecting, the Property or any pa rt thereof wh ich wou ld bebinding upon the City.(d) As of the Propertys close of Escrow, the Property will not be

subject to any leases, subleases, easeme nts, or any other possessory interests.All representations and warranties made hereunder are in additio

Newport Beach Cm Contract

Documents

Transcript of Newport Beach Cm Contract