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CITY OF NEWPORT BEACH
SEVENTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
CITY ATTORNEY
This SEVENTH AMENDED AND REST ATED EMPLOYMENT AGREEMENT ("Agreement") is made effective as of March 22, 2022 ("Effective Date") and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employ er" or "City") and AARON C. HARP ("Employee"), an individual (sometimes collectively referred to herein as "the Parties").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of Califo rnia with the powe r to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. Employee has been continuously employed by City as City Attorney since September 6, 2011. Employ ee is currently employed under a Sixth Amended and Restated Employment Agr eement approved January 26, 2021 ("Employment Agreement").
C. The Parties mutually agree that they intend for this Agr eement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment Agreements shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment, and that there are no other Agreements between them; oral, written, or implied.
ATTACHMENT A
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows:
SECTION 1: Term
A. This Agreement shall become effective March 22, 2022 and shall terminate on December 30, 2028, subject to the City's right to terminate Employee's employment at any time as provided for in this Agreement, and Section 600 of the City Charter.
B. City's election not to extend this Ag reement shall not enti tle Employee to Severance pursuant to Section 7 of this Agreement.
SECTION 2: Duties and
Authority
A. Employer agrees to co ntinue to employ Employee as City Attorney, to exercise the powers and authority and to perform the functions and duties specified in the Newp ort Beach City Charter, the Newport Beach Municipal Code ("NBMC") and all relevant re solutions, 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 f unctions 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 Employ ee an annual base salary of Two Hundred, Seventy Thousand, Four Hundred Twenty-Eight Dollars ($270,428) ("Base Salary "), effective on the firs t day of the pay period following approval of the Agreement.
B. Effective the first day of the pay period after Januar y 1, 2023, and each year thereafter, the Base Salary shall be adjusted in accordance with the percentage cost of living adjustment, if any, approved by the City Council for Key and Management Executive Management Employees, as set forth in the Key and Management Compensation Plan (“Compensation Plan”).
C. The Base Salary and compensati on payable to Employee shall be subject to deductions and withholdings of any and all sums required for federal or state in come tax, pension cont ributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays 17-5
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for the City Manager, City Attorney , City Clerk and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employ er shall also deduct sums Employee is obligated to pay becaus e 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 and the City Council shall adjust the salary range, as needed, to ensure that the Base Salary remains within the approved salary range.
D. Employer, by the City Council, and Employee may set mutually agreed upon objectives for each year under this Agreement. Employer, by the City Counci
l, may elect to co nduct an evaluation of Employee's performanc e at any tim
e or times during the period in which this Agreement remains in effect.
E. Employee's compensation as discusse d under this Sectio n is not tied to the compensation of any other City employ ee or group of City em
ployees, except as expressly provided in this Agreement.
SECTION 4: Employee Benefits
A. Benefit Balances Carried Over . Employee shall not have a break in employment service between the prior Employment Agreement and this Agreement. All of Employee 's accrued leave and o ther benefi t balances shall
carry over as agreed, and Em ployee leave and benefit balances shall continue to accrue under the te rms of applicable City policies an d this Agreement.
B. Flex Leave. Employee shall accumulate Fl ex Leave as provided in Compensation Plan, Executive Management category, at the rate designated for Employee's years of se rvice in the “15 and over” category .
Em
ployee's maximum accrual for Flex Leave is limited to four hundred (400) hour
s. No Flex Leave shall further accrue beyond said maximum. The right to
sell back accumulated Flex Leave shall be the same as other Key and Management Employees and shall comply with the Leave Sellback provisions set forth in the Compensation Plan.
C. Administrative Leave. Employee shall be entitled to eighty (80) hours of paid Administrative Leave and shall be cred ited with said leave the fi rst pay period in January of each calendar year. Adm
inistrative Leave will not
rollover from calendar year to calendar year and must be used eac h 17-6
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calendar year or no additional entitl ement above eighty (80) hours shall arise or occur. Upon separation from employment, Employee shall be entitled to payment of any hours rema ining of the eigh ty (80) entitled hours that were not used in the calendar y ear. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave.
D. Additional Benefits. Unless othe rwise provided in this Agreem ent, Employee shall receive the same benefits as are available to Executiv e Managem
ent Employees under the Compensation Plan and/or Employee Pol
icy Manual ("EPM"), including, but not limited to, ca feteria benefi ts, LIUNA
Supplemental Pension, IR S Sect ion 125 Flexible Spending Acc
ounts, short-term and long-term disability plans, life in surance plans, and deferred compensa ti
on plans. This Agreement shall be deemed
amended whenever the Ci
ty Council ad opts a resolution or takes acti on
changing these benefi
ts under the Compensation Plan and/or EPM.
E. Annual Physical Exam. Employ ee m ay undergo an annual physi cal examination and City shall reimburse Employee for the actual cost of the examinati
on up to a maximum of One Thousand Dollars ($1,000).
F. Automobile Allowance. Employee's duties requi re Em ployee to be available and to respond to demands of City business at all times and outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee an Automobile A llowance of Five Hundred Dollars ($500) per month to respond to these demands of City business.
G. Phone Allowance. Employee s hall be entitled to the same phone allowance as provided to any Executive Management Employee.
H. Deferred Compensation. Upon the Effective Date of this Agreement, Employer contributions to Employee’s City-sponsored deferred compensation account ( 457 Pl
an) shall cease.
Employee has a 401(a) defined contribut ion plan account set up by the City which is subject to the rules of Inte rnal Revenue Code Section 415(b). The City shall make bi-weekly contributio ns to Employee’s 401(a) defined contribution plan account, on a pre-tax bas is, in the total amount of Fourteen Thousand and Five Hundred Dollars ( $14,500) for calendar year 2022 and increase the annual contribution amount by Two Thousand Five Hundred Dollars ($2,500) each and every calendar year thereafter. Employee is immediately 100% vested in all Employ er contributions made to his 401(a) 17-7
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defined contribution plan account. Employee shall not be entitled to the 401(a) contributions set forth in the Compensation Plan.
Under federal law, th ere is an annual maximum c ontribution which may be made to an employee’s 401(a) defined contribution plan account. If Employee’s account contributions r each the annual maximum, th e City will stop making contributions for the remainder of the calendar year and will not owe Employee any additional compensation related to this Section.
City contributions to the 401(a) Plan cease immediately upon Employee’s separation from employment with the City.
I. Amendment of Benefits. Except as expres sly provided under Section 4 of this Agreement, Employee's benefits are not tied to the compensation of any other Ci
ty employee or group of City employees.
J. Retirement-CalPERS. Employee contributes thirteen percent (13%) of compensation earnable towards Employ ee's retirement benefit, which is designated as follows: 8% Employee/Member’s total PERSable salary as th e Emp
loyee/Member Contribution; and 2.42% and 2.58% as cost sharing of the Employer Contribution Rate in acco rdance with Government Code sections 20516(a) and 20516(f) respectively.
The Parties agree that the City will not report as special compensation the value of any Em
ployer Paid Member Contribution. In the event the
City
Council adopts a Compensation Plan in which retirement
contributions for non- safety employees of the Key & Management Group exceeds 13%, this Agr eement shall be deemed am ended and Employee wil
l be subject to t he same formula or percentag e
contribution as i
t is applied to the non-safety employees of the Key &
Managem
ent Group covered under the Compensation Plan and for the same duration. In no event, shall the Employee’s retirement contribution be l
ess than 13% . Employee’s retirement contributions that are in addition to the norm
al PERS Member Contribution shall be calculated
on Base Salary, special
pays, and other pays normally reported as
“PERSa
ble” compensation and will be made on a pre-tax basis through payroll
deduction, to the extent allowable by the Government Code.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non-personal
, job-re lated nature that are reasonably necessary to
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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 incu rred and submitted according to Employer’s normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement , all expenses must be supported by documentation meeting Employer’s normal requirements and must be submitted within time limits established by Employer.
B. Employer shall reimburse Employee for expenses incurred while attending a reasonable number of League of Cities and other si milar conferences relev
ant to the performance of Em ployee’s duties. City shall pay E
mployee’s annual California Bar Association dues, membership in the Orange C
ounty Bar Association and appropriate sections of that
Association and the expenses for satisfying Employee’s Mandatory Continuing Legal Education (“MCLE”) obligations. It is not contemplated that travel outside of Orange County will be required for Employee to meet the MCLE obligations.
C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B
above, are exclusiv e of reasonable expenses related to events, parti
cipation in organizations, or attendance at events or meetin gs 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 organi
zations or events in which Employer requires Employ ee to parti
cipate.
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 pleasu re of the City Coun cil. Nothing in thi
s Agreement shall prevent, limit or otherwise interfere with the right of Em
ployer to terminate this Agreement and the employment of Employee at any tim
e, with or without Cause (as defined below), and with or without no
tice. Employer shall pay Employee for all servic es through the effecti
ve date of termination and Employee shall have no right to any addi
tional compensation or payment, except as provi ded in Section 7, Sev
erance and Benefit Payoff at Termination and General Releas e Agreem
ent, below.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from Employee’s employment with Employer, subject only to Employee provid ing a minimum of forty-five 17-9
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(45) calendar days prior written notice to Employer of the effecti ve date of E
mployee’s resignation. Upon the effective date of resi gnation, Em
ployee forfeits all compensation and benefits owing for the remainder of the term
of this Agreement, as well as any potential “Severance” pay per Section 7 below.
SECTION 7: Severance and Bene fit Payoff at Termination and General Release Agreement
A. Termination Without Cause. Notwithstanding any other provision of this Employment Agreement, and as require d by Government Code Sections 3511.2 and 53260,
if Employer terminates this Agreem ent (thereby
term
inating Employee’s employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a m
eeting of the City Coun cil, and if Employee signs, delivers to the Ci ty Counci
l, and does not revoke the Agreement of Separation, Severance and General Release Agreement in substantially the same form attached hereto as E
xhibit A, as approved by counsel for the City to ensure all potential
claims are released, th en Employer shall pay Employ ee beginning on the effective dat
e of termination a cash settleme nt equal to
Em
ployee’s monthly Base Salary, as adjusted, multiplied by the number of months left on the unexpired term of the Agreement, with the following exceptions: (1) i
f Employee is terminated Withou t Cause on or prior to
March 22, 2026, the maxim
um cash settlement shall be an amount equal
to E
mployee’s monthly Base Salary, as adjusted, multiplied by 18; or (2) i
f Employee is terminated Without Cause after March 22, 2026, th e maxi
mum cash settlement shall be an amount equal to Em ployee’s m
onthly Base Salary, as adjusted, mu ltiplied by 12 . (See, Governme nt Code Secti
on 53260(a).) Additionally, Employer shall provide Employ ee beginning on the effecti
ve date of termination six (6) months of medica l
coverage as provided under the
Compensation Plan, as lo ng as
E
mployee is already enrolled in an d receiving medical coverage through the Ci
ty medical benefits plan at the time of termination.
’’The lum
p sum payment described in this Section 7 (A) shall be referred to herein as “Severance”.
B. Termination With Cause. If Employer terminates this Agreement (thereby terminating Employee’s employment) with Cause, as determ ined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, Employee sh all not be entitled to any additional compensation or payment, including Severance. If the City Council intends to 17-10
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terminate with Cause, based on a reason or reasons set forth in subparts 5 or 6, immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council’s independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall only mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee’s duties under thi
s 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 i
s 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 Counci
l made by the City Council as a body; and
6. Any grossly negligent action or inacti on by Employee that materially and adversely: (a) impedes or disrup ts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established ru les or procedures of Employer.
C. Municipal Elections. In no event may Employee be terminated under this Section within ninety (90) days af ter any municipal electi on for the selection or recall of one or m
ore of the members of the City Council.
D. Resignation. If Employee resigns or otherwise terminates this Agreement (thereby terminating Employee's empl oyment), Employee shall not be entitled to any additional compensation or payment, including Severance.
E. Accrued Leave. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave and unused Admini
strative Leave.
SECTION 8: Employee's Obligations and Hours of Work
A. Employee shall devote Employee 's full energies, interests, 17-11
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abilities and productive time to the performance of this Agreement and utilize Employee's best efforts to promote Employer's interests.
Employee's duties may involve expendi tures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outsi de normal office hours, including attendance at City Counc il 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 no rmal office hours to business activities of Employer and the exempt salaried nature of the employment, Employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall during normal business ho urs, subject to paragraph B of this Section.
B. Employee is authorized to work the 9/80 schedule; however, as City Attorney, E
mployee shall not take a 9/80 day: (1) on any Monday or Friday immediately preceding a regularly scheduled City Council Meeting; (2) on the same day as the Assistant City A ttorney takes a 9/80 day off; or (3) any other day where the press of business requires Employee's attendance, in Employee's good faith judgment, such as court appear
ances or emergency City Council meetings.
SECTION 9: Confidentiality and Non-Disparagement
A. Employee acknowledges that in t he course of Employee's employment contem
plated herein, Employee will be given or will have acce ss to pri
vileged, confidential and propri etary documents and inform ation, relating to the City, its
residents, businesses, employees, and customers
("Confidenti
al Information"). Such Confidential Information may include, but is not limited to, all information gi ven to or otherwise accessible to Employee that is not public information or would be exempt from public di
sclosure as confidential, protect ed, exempt or privileged informati on.
E
mployee shall hold the Confidential Information in trust for Ci ty's benefi
t and shall not disclose the Confidential Informati on to others wi
thout the express written consent of City.
B. The obligati ons of Employer and Employee under this Section 9 shall survi
ve the termination of this Agreement.
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SECTION 10: Outside Activities
A. E mployee shall not engage in any employment, activity, consul ting se
rvice or enterprise for compensation, or otherwise, which is, actually or potentially, inconsistent, incompatible, in conflict, inimical to or which materially interferes with Employ ee's duties and responsibilities to Em
ployer. (GOV§ 1125 - 1129)
SECTION 11: Indemnification
A. To the extent mandated by the California Government Code, the City shall
defend, hold harmless, and indemni fy Employee against any tort, pr
ofessional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of employee's services under this
Agreement. This section shall not
apply to any intentional tort or crime commi
tted by Employee, to any
action outside the cour se and scope of the services provided by employee under this Agreement, or any other intentional or malicious conduct or gross negligence of Employee. (GOV§ 825, 995, et. seq.) B. Notwithstanding the foregoing, and consistent wi th Sections 53243 through 53243.3 of the Government Code, Employee shall be required, if convicted of a crime involving an abuse of Employee's office or position, to fully reim burse the City for: (1 ) any paid leave salary offered by the Ci
ty to the Employee ; (2) any funds provided for the
legal criminal
defense of the Empl oyee; (3) any cash settlement
re
lated to the termination that Employee may receive; and (4) any other payments recei
ved by Employee from City that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
A. Employer may fix other terms and condi tions of employment, as it may determ
ine from time to time, re lating to the performanc e of the Employee, provided such terms and conditions are not incons istent with or i
n conflict with the provisions of this Ag reement or applicable law .
SECTION 13: Notices
A. Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed
as follows:
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(1) EMPLOYER:
City of Newport Beach
c/o City
Clerk
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Aaron C. Harp
at the home address then show n in Employer's files
B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing.
SECTION 14: General Provisions
A. Integration. This Agreement sets fo rth the final, comp lete and exclusiv e agreement between Employer and Empl oyee relating to the employment of Em
ployee 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 Partie s by mutual written agreement may amend any provi
sion of this Agreemen t during the life of the Agreem ent.
Such am
endments shall be incorpor ated and made a part of this Agreement. The foregoing notwithstanding, Empl oyee acknowledges that, except as expressly provided in this Agreement, Employee's employment is subject to Employer's generally applicable rules and policies pertaining to em
ployment matters, such as those addressing equal employment opportunity
, sexual harassment and violen ce in the workplace, as they currently or may in the future exist, and Employee's employment is, and will conti
nue to be, at the will of the City Council.
B. Binding Effect. This Agreement sh all be binding on the Em ployer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest.
C. Choice of Law. This Agreement shal l be interpre ted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Code s, Ordinances, Policies and Resoluti
ons.
D. Severability. If any provision of this Agreement is held in valid or 17-14
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unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provisio n is held invalid or unenforceable with respect to particular circumstanc es, it shall nevertheless remain in full force and effect in all other circumstances.
E. Conflict with City Charter or Municipal Code. In the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreem ent and
the NBMC, the City Charter or the NBMC shall prevail over this Agreement. All other City personnel ordinances , resolutions, rules, and policies shall apply to Employee in the same manner as applied to other Executive Management Employees.
F. Employee's Independent Review . E mployee acknowledges that Employee has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Em ployee acknowl
edges that Employee has made an independ ent judgment upon the fi
nancial and legal effects of th is Agreement and has not re lied upon any repr
esentation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement. Employee acknowledges that Employee has been advised to obtain and has availed oneself of legal advi
ce with respect to the terms and provisions of this Agreement. [Signatures on next page]
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EMPLOYER
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:--------
Kevin Muldoon, May or
EMPLOYEE,
An Individual
By:
Aaron C. Harp
Date:-------- Date: __________ _
APPROVED AS TO FORM:
By: �C:-
Charles Sakai, Attorney
ATTEST:
By: _________ _
Leilani Brown, City Clerk
Date: 10 March, 2022
[End of Signatures]
Attachment: Exhibit A - General Release Agreement
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Exhibit A
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Ag reement") is enter ed into by and between AARON C . HARP ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts :
A. Employee's employment with Employer concluded on _
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any lia bility whatsoever to the other .
D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other.
E. Employee is hereby informed that Employee has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with Employee's legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days foll owing the signing of this Agr
eement ("Revocati on Period"), Employee may revoke the
Agreement. This Agreement shall not become effective or enforceable until the day the Revocation Period has expired.
G. Employee acknowledges that the Sa lary Payment referenced b e l o w in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reim
bursed expenses, due and payable to Employee throu gh
the dat
e of employment termination. Employee also acknowledges that Employer has made this Salary Pay
ment without regard to whether Employee signs this Agreement.
The Salary P
ayment does not constitute consideration for this Agreement. Employee acknowl
edges that the Severance referenced below in paragraph 2 of this Agreement is in exc
ess of all amounts that are due and owing to Employee as a result of Employee's employment by Employer.
1. Receipt of Salary Payment. Empl oyee hereby acknowledges receipt of a check or checks for all compensation owing to Employee, including salary, accrued benefit balances and reimbursed expens es ("Salary Payment") from Employer .
2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement during the Revocation Period, City shall pay Employee the gross amount provi ded for in Section 7 of the Seventh 17-17
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Amended and Restated Employment Agreem ent effective March 22, 2022, 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 Em ployee as a result of Employee's employment by Employer .
3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and pr esent City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in eq uity, concerning and/ or arising out of Employee's employment with Employer wh ich Employee now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Ac t 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.
Nothing in this Agreement shall affe ct the EEOC or DFEH rights and responsibilities to enforce Title VII of t he Civil Rights Act of 1964, as amended, the Fair Employment and Housing Act, or any other applicable law, nor shall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an investigation or proceeding conducted by the EEOC or any other state, federal or local government entity; except that, if the EEOC or any other state, federal or local government entity pursues a lawful investigation or issues a complaint on Employee’s behalf, Employee specifically waives and releases Employee’s right, if any to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will Employee seek reinstatement to Employer employment.
Employee hereby waives and relinquishes all rights and bene fits afforded by Section 1542 of the Civi l Code of California . Employee understands and acknowledges the significance and consequence s of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows :
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT TH E TIME OF EXECUTING TH E
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
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MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employ ees, representatives and agents, Employee expressly acknowledges that this General Release is int ended to include in its effect, without limitation, all claims which Employee does not know or suspect to exist in Employee's favor.
Employee further acknowledges that Employee has read this General Release and that Employee understands that this is a general release, and t hat Employee intends to be legally bound by the same.
4. Fees. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevai ling party shall not be entitled to recover its reasonable attorneys' fees.
5. Older Workers’ Benefits Protection Act. It is the intention of the parties that the releases contained in this Agreement apply to all claims of any kind against the Employer. In order to comply with the Older Workers’ Benefits Protection Act (29 U.S.C. § 626(f)) and effectuate the release by Employee of any potential claims under the federal Age Discrimination in Employment Act, Employee agrees as follow s: (i) Employee has carefully reviewed the foregoing Agreement, and understands the terms and conditions it contains; (ii) by entering into this Agreement, Employee is giving up potentially valuable legal rights, and Employee intends to be bound by all the terms and conditions set forth above; (iii) Employee is entering into this Agreement freely, knowingly, and voluntarily; (iv) Employee has had 21 days to consider whether to agree to the terms and conditions set forth in this Agreement; and (v) for a seven (7) day period following Employee’s execution of this Agreement, Employee may revoke this Agreement by delivering a written revocation to counsel for the Employer, and this Agreement shall not become effective nor enforceable until the revocation period has expired [Signatures
on Next Page]
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CITY OF NEWPORT BEACH
Dated _____________, 20__ By: __________________ ________ Newport Beach Mayor
Dated _____________, 20__ By: __________________ ________ Aaron C. Harp
APPROVED AS TO FORM:
By: ____________________________
Date: __________________________
ATTEST:
By: ____________________________
Newport Beach City Clerk
Date: __________________________
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