HomeMy WebLinkAbout23 - Approval of Side Letter MOU - NBFA�EWPORr CITY OF
NEWPORT BEACH
COUNCIL STAFF REPORT
Agenda Item No. 23
November 26, 2013
TO: , HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, City Manager
949 - 644 -3002, dkifff newgortbeachca.pov
Human Resources Department
Terri L. Cassidy, Deputy City Manager /Human Resources Director
949 - 644 -3303, tcassidv(a)newi)ortbeachca.00v
PREPARED BY: Terri L. Cassidy, Deputy City Manager /HR Director
Maggie Williams- Dalgart, Senior Human Resources Analyst
APPROVED:
TITLE: Approval of Side Letter Extending the 2012 -2014 Memorandum of
Understanding between the City of Newport Beach and the Newport
Beach Firefighters Association to December 31, 2014 and Approval
of Settlement Agreement
ABSTRACT:
The City of Newport Beach and the Newport Beach Firefighters Association (NBFA)
signed a Memorandum of Understanding (MOU) that expires June 30, 2014. The
attached Side Letter between the City and NBFA would extend the contract six months,
from June 30, 2014 to December 31, 2014; no changes to pay or benefits are proposed
in the contract extension. The Settlement Agreement with NBFA will resolve all disputes
related to overtime compensation for the period January 2010 through December 2011.
City Council adoption of the Side Letter and Settlement Agreement are the final actions
required to complete both agreements.
RECOMMENDATION:
The following actions are recommended:
1) Approve the Side Letter with the NBFA to extend the expiration date of the
Memorandum of Understanding from June 30, 2014 to December 31, 2014; and
2) Approve the Settlement Agreement between the City and NBFA to settle all
disputes regarding back payment of overtime for the period January 1, 2010
through December 31, 2011.
Approval of Side Letter and Settlement Agreement with the Newport Beach Firefighters
Association
November 26, 2013
Page 2
FUNDING REQUIREMENTS:
See financial information in the body of the discussion text
DISCUSSION:
The Newport Beach Firefighters Association represents 113 employees in both safety
(eg: Firefighter) and non -safety (eg: Life Safety Specialist) positions. The current MOU
between the City and NBFA, negotiated in 2012, is for the period January 1, 2012
through June 30, 2014. During the negotiations process the parties discussed
application of the overtime provision in the labor contract and agreed to a different
calculation method for greater compliance with overtime regulations under the Fair
Labor Standards Act. Specifically, the NBFA claimed the City had an obligation to pay
employees additional overtime under a specific provision of the FLSA law (dubbed "W',
it requires overtime pay in certain situations for public safety employees), from prior
years (2010 and 2011) and to modify the practice on a go forward basis.
Following the 2012 negotiations, City and NBFA representatives continued discussing
the overtime question and agreed to resolve the matter through a change in how
overtime pay is calculated for the current contract period (2012- 2014). The City has
corrected its practice and all questions regarding overtime for the current contract
period have been resolved. To settle the disputed back payment of overtime for 2010
and 2011, an agreement was reached to provide the back pay to eligible
employees /retirees and extend the current contract term.
The specific terms of the complete agreement are outlined in the Side Letter
(Attachment A) and the Settlement Agreement (Exhibit A) between the City and the
NBFA. The Side Letter provides a six month extension of the 2012 -2014 MOU, from
June 30, 2014 to December 31, 2014 and clarifies mandatory retirement contributions
for employees hired under the Public Employees Pension Reform Act (PEPRA) of 2013,
(which was not included in the MOU at.the time it was adopted in 2012). The Side
Letter settles all disputes with NBFA regarding overtime from January 2010 to
December 2011.
Both the Side Letter and Settlement Agreement require City Council approval. If
approved, Human Resources and Finance Department staffs will work to implement the
terms as soon as practicable.
Fiscal Impact:
The cost to settle the dispute for the overtime calculation for 2010 and 2011 with the
NBFA is $200,303. This represents the total amount to be paid to the 107 eligible
members, including active and separated employees, for the overtime back payment as
outlined in Exhibit 1 of the Settlement Agreement.
N
Approval of Side Letter and Settlement Agreement with the Newport Beach Firefighters
Association
November 26, 2013
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Terri L. dassidy
Deputy City Manager /HR Director
Attachment A: Side Letter Amending the Memorandum of Understanding between the
City of Newport Beach and the Newport Beach Firefighters Association,
Including Exhibit A and Corresponding Exhibits 1 and 2
Attachment A
SIDE LETTER TO EXTEND THE MEMORANDUM OF UNDERSTAI\TDING BETWEEN THE
CITY OF NEWPORT BEACH AND THE NEWPORT BEACH FIREFIGHTERS ASSOCIATION
TO DECEA'IBER 31, 2014
WHEREAS, on May 22, 2012, the City of Newport Beach (the "City") and the Newport Beach
Firefighters Association (the "Association" and together with the City, the 'Parties ") executed a
memorandum of understanding (the "MOU") for the period of January 1, 2012 through June 30, 2014;
and
WHEREAS, during the term of this agreement, the Association asserted that the City's overtime
compensation did not satisfy the requirements of the Fair Labor Standards Act CPLSA "); and
WHEREAS, in resolution of this administrative issue, the City and the Association have entered into a
settlement agreement (the "Settlement Agreement")' whereby the City has agreed to make payments to
certain current and former members of the Association in exchange for a waiver and release of any FLSA
claims held by such members that arose during the period covered by the settlement agreement; and
WHEREAS, as a condition precedent to the City's payment under the Setd ement. Agreement, the Parties
agreed that the Association would be responsible for collecting executed waivers (the "Individual
Waivers ") from at least ninety percent (90 %) in number of the employees listed on Exhibit 1 thereto; and
WHEREAS, the City has agreed that, upon receipt of executed Individual Waivers from at least ninety
percent (90 %) in number of the employees Listed on Exhibit I to the Settlement Agreement, the City
would agree to extend the teen of the MOU by six months to December 31, 2014; and
WHEREAS, as part of this extension, the Parties have agreed that the remaining terms of the MOU shall
retrain in full force and effect except as set forth in this Side Letter.
NOW, THEREFORE, the City and the Association agree as follows:
Section L• Subject to the collection of executed Individual Waivers from at least ninety percent (90 %) in
number of the Association members listed on Exhibit 1 to the Settlement Agreement, the term of the
existing MOU between the City and the Association shall be extended for a period of six months and
Section 1(13)(1) of the existing MOU is hereby modified to read as follows:
B. Duration of Memorandum
I. Except as specifically provided otherwise, any ordinance, resolution or action of
the City Council necessary to implement this MOU shall be considered effective as of
January 1, 2012. This MOU remains in frdl force and effect until December 31, 2014 and
the provisions of this MOU shall continue after the date of expiration of this MOU in the
event the parties are meeting and conferring on a successor MOU.
The parties agree that if NBFA submits preliminary requests for changes in wags, firinge
benefits and other terms and conditions of employment earlier than 90 days prior to
t The Settlement Agreement is attached as Exhibit A hereto.
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expiration of the MOU, the parties will begin negotiations promptly, with the objective of
reaching an agreement by December 31, 2014.
Section 2: Section 4.D of the MOU shall be restated in its entirety as follows:
D. The Retirement Benefit
L Tier I
A. Non -Sworn Members (Miscellaneous)
i. Non -sworn members hired prior to November 25, 2012, are subject to
the Public Employees' Retirement System retirement formula of 2.5% at
55.
ii. Pursuant to a separate agreement, miscellaneous (nonsafety) unit
members have agreed to have 2.42% of the employer retirement cost
added to the employee's rate pursuant to California Government Code
Section 20516. Non - safety employees now pay 3.42% of retirement
costs (2.42% employer cost sharing [ER side] and 1% employee normal
member contribution ['`EE side "]) on a pre -tax basis pursuant to IRS
Code Section 414(h)(2).
iii. Effective the fast payroll period commencing on and after City Council
adoption of this 2012 -2014 MOU, non- safety member employees shall in
addition to the cost sharing provision described above, pay an additional
3.08% of compensation as and for the individual member normal
employee PERS contributions required to be paid by PERS. Said
payment shall be made on a pre -tax basis pursuant to IRS Code Section
414(h)(2) and pursuant to Government Code §20516 and §20691. At
this point, non - safety members will be contributing 4.08% (EE) and
2.42% (ER) for a total of 6.5 %.
iv. Effective the fast payroll period on or after January 1, 2013, non - safety
employees, shall in addition to the cost sharing provision described
above, pay an additional 1.5% of compensation as and for the individual
member's normal employee PERS contributions required to be paid by
PERS. Said payment shall be made on a pre -tax basis pursuant to IRS
Code Section 414(h)(2) and pursuant to Government Code §20516 and
§20691. Further, the City will eliminate reporting the value of the 2.42%
Employer Paid Member Contribution (EPMC) as special compensation.
At this point, non -safety member will be contributing 5.58% (EE) and
2.42% (ER) for a total of8% with no EPMC.
V. Effective the first payroll period on or after June 30, 2013, in addition to
the contribution listed above, Tier I employees shall contribute 1.45% of
pensionable pay toward retirement costs pursuant to Government Code
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§205160, for a total contribution of 9.4591a Said payment shall be
made an a pre -tax basis pursuant to IRS Code Section 4140i)(2).
vi. Effective the first payroll period on or after June 30, 2014, non -sworn
members receiving a Tier I benefit shall, in addition to the 8%
contribution listed above, contribute 2.9% of pensionable pay toward
retirement costs pursuant to Government Code §20516(]), for a total
contribution of 10.9% Said payment shall be made on a pre -tax basis
pursuant to IRS Code Section 414(h)(2).
B. Swom Members (Safety)
i. Sworn members hired prior to November 25, 2012, are subject to the
Public Employees' Retirement System retirement formula of 3% at 50.
ii. Effective the fast payroll period commencing on and after the adoption
of this MOU and in accordance with PERS Regulations, swom unit
members have agreed to a total PERS employee contribution of 3.5%
pursuant to California Government Code §20516 and §20691 on a pre-
tax basis pursuant to IRS Code §414(h)(2). City shall contribute 5.5% of
the employee contribution pursuant to Government Code 620691 and
shall report the value of the 5.5% as EPMC under Government Code
§20636(c)(4).
iii. Effective the first payroll period commencing on and after January 1,
2013, swom unit members agreed to a total PERS employee contribution
of 7.0% pursuant to California Retirement Code §20516 and §20691 on a
pre -tax basis pursuant to IRS Code §414(h)(2).
iv. Effective the first payroll period commencing on and after January 1,
2014, sworn unit members agreed to a total PERS employee contribution
of 9% pursuant to CaEfomia Government Code §20691 on a pre -tax
basis pursuant to IRS Code §414(h)(2).
C. The City's contract with PERS for Tier I members shall also provide for.
i. A 3 %Q 50 retirement formula and the highest year benefit pursuant to
the provisions of §21252.01 and §20042 of the California Government
Code for safety employees hired before November 25, 2012.
ii. The military buy -back provisions pursuant to §20996 of the California
Goverment Code.
iii. The Level 4 1959 Survivors Benefits pursuant to §21574 of the
California Government Code.
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H. Tier 2
A. Nun -Sworn Members (Miscellaneous)
i. Non -sworn members hired on or after November 25, 2012 and on or
before December 31, 2012 who do not qualify as "new members"
pursuant to Government Code § 7522,04, are subject to the Public
Employees' Retirement System retirement formula of 2.0% at 60 and
shall pay the statutory 7% member contribution.
ii. Effective the first pay period commencing on or after June 30, 2013, non -
sworn members receiving a Tier 2 benefit shall contribute a total of
9.45% compensation toward PERS costs, comprised of 7.0% as and for
the individual member's normal employee _PERS contributions and
2.45% toward employer costs, which shall be paid pursuant to
Government Code §205160. Said payment shall be made on a pre -tar
basis pursuant to IRS Code Section 414(h)(2).
iii. Effective the first pay period commencing on or after January 1, 2014,
non -sworn members receiving a Tier 2 benefit shall contribute a total of
10.90% compensation toward PERS costs, comprised of 7.0 %as and for
the individual member's normal employee PERS contributions and
3.90% toward employer costs, which shall be paid pursuant to
Government Code §205160. Said payment shall be made on a pre -tax
basis pursuant to IRS Code Section 414(h)(2).
B. Sworn Members (Safety)
i. Sworn members hired on or after November 25, 2012 and on or before
December 31, 2012 or who do not qualify as "new members" pursuant
to Government Code §7522.04, are subject to the Public Employees'
Retirement System retirementformuda oft %at 50.
ii. Efjective upon appointment, sworn unit members receiving a Tier 2
benefit shall contribute 9% of compensation towards PERS costs on a
pre -tax basis pursuant to IRS Code §414(h)(2).
iii. To the extent allowed by PERS, the IRS and other applicable regulatory
agencies and law, safety unit members who shall be enrolled in Tier 2
shall be eligible to participate in a Defined Contribution plan (Plan) to be
administered by the City of its designee in accordance with said
regulatory agency regulations and laws. The Plan shall be funded by
allowing each affected employee to contribution any amount (unless
statutorily capped or capped by the Plan) of base salary each payroll
period. The City shall match any such employee contribution up to 1.5%
of base salary per year. The employee -only contributions shall be
deemed fully vested at the time of its deposit. The employer -only
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matching contribution shall vest upon a PERS retirement being
implemented as follows: 100% - age 55 +; 80% - age 54; 60% - age 53;
40% - age 52; 20% - age 51. ( "Age" at time of retirement being
effective.) In the event that a participant in the Plan has a medical
retirement earlier than the vesting above, he or she shall be deemed
100% vested upon the date of the medical retirement.
C. The City's contract with PERS for Tier 2 members shall also provide for:
i. The military buy -back provisions pursuant to §20996 of the California
Government Code.
ii. The Level 4 1959 Survivors Benefits pursuant to §21574 of the
California Government Cnde.
fO. Tier 3
A. Non -Sworn Members (Miscellaneous)
is Non -sworn members hired on or after January 1, 2013 and who qualify
as "new members " pursuant to Government Code §7522.04 are subject
to the Public Employees' Retirement System retirement formula of 2.0%
at 62 in accordance with Government Code §7522.20(x) and shall pay
the 6.25 % statutory member contribution.
ii. Effective the first pay period commencing on or after June 30, 2013, non -
sworn members receiving a Tier 3 benefit shall contribute a total of
9.45% compensation toward PERS costs; comprised of 625% as and for
the individual member's normal employee PERS contributions and
3.20% toward employer costs, which is to be paid pursuant to
Government Code §205160. Said payment shall be made on a pre -tax
basis pursuant to IRS Code Section 414(h)(2).
iii. Effective the first pqv period commencing on or after June 30, 2014, non -
sworn members receiving a Tier 3 benefit shall contribute a total of
10.90% of compensation towards PERS costs, comprised of 625 %'as
and for the individual member's normal employee PERS contributions
and 4.65% toward employer costs, which is to be paid pursuant to
Government Code §205160. Said payment shall be made on a pre -tax
basis pursuant to IRS Code Section 414(h)(2).
R. Sworn Members (Safety)
I. Sworn members hired on or after January 1, 2013 and who quay as
"new members "pursuant to Government Code §7522.04, are subject to
the Public Employees' Retirement System retirement formula of 2.7% at
57 in accordance with Government Code §7522.25(d).
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ii. Effective the first pay period commencing on or after January 1, 2013,
sworn unit members receiving a Tier 3 benefit shall pay the PERS
statutory 11.25% member contribution on a pre -tax basis pursuant to
IRS Code §414(h)(2).
iv. To the extent allowed by PERS, the IRS and other applicable regulatory
agencies and law, safety unit members who shall be enrolled in Tier 3
shall'be eligible to participate in a Defined Contribution plan (Plan) to
be administered by the City of its designee in accordance with said
regulatory agency regulations and laws. The Plan shall be funded by
allowing each affected employee to contribution any amount (unless
statutorily capped or capped by the Plan) of base salary each payroll
period. The City shall match any such employee contribution up to 1.5%
of base salary per year. The employee -only contributions shall be
deemed ftdly vested at the time of its deposit. The employer -only
matching contribution shall vest upon a PERS retirement being
implemented as follows: 100% - age 57 +; 80% - age 56; 60 %- age 55;
40% - age 53; 20% - age 52 . ( "Age" at time of retirement being
effective) In the event that a participant in the Plan has a medical
retirement earlier than the vesting above, he or she shall be deemed
100% vested upon the date of the medical retirement.
C. 77te City's contract with P1 RS for Tier 3 members shall also provide for:
i. The military buy -back provisions pursuant to §20996 of the California
Government Code.
ii. 77te Level 4 1959 Survivors Benefits pursuant to §21574 of the
California Government Code.
1[! For non -safety employees, effective the pay period that includes January 1, 1014 salaries
will be increased by an amount equal to the increase in the Consumer Price Index (CPI)
Los Angeles /Orange Cotmty Urban 6trage Earners Index for the 12 month period ending
on October 31, 2013 with a minimum IS% increase and a maximum 2.15% increase.
The terns of the January 1, 2014 cost -of- living adjustment for safety members, under
Sec6an2, A.1, remain unchanged.
V. Unless specifically modified herein, newly hired employees shall be subject to other
existing City-PERS contract provisions and applicable PERS regulations.
VL To the extent during the term of this Memorandum of Understanding, that the City pays a
portion of the normal PERS contributions of members (sworn and eon - sworn), said
payments shall be reported to PERS as special compensation as is authorized by
Government Code §20636(c)(4).
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VII. Payment by any unit member of the individual member's normal employee PERS
contributions required to be paid by PERS shall not be reported to PERS as special
compensation as was authorized by Government Code §20636(c)(4) or by any other
authority.
Signatures on the following page.
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APPROVED AS TO FORM:
CTTY ATTO MY'S OFFICE
Date:
O n /�
� L WL, -
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
\'ER'PORT BEACH FIREFIGHTERS
ASSOCL4,TIO\'
CITY OF NERTORT BEACH,
a California municipal corporation
Date:
Keith D. Curry
Mayor
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Exhibit A
SETTLEMENT AGREEMEN'r REGARDhNG PAYMENT OF WAGES AND GENERAL RELEASE OF CLAWS
This Settlement Agreement and General Release (the "Agreement ") is made and entered into by
the City of Newport Beach (the "City"), certain former and current employees of the Newport
Beach Fire Department identified on Exhibit 1 hereof (collectively, the "Employees ") and the
Newport Beach Firefighters Association (the "Association ") with reference to the following facts
(the City and the Association are collectively referred to herein as the "Parties "):
RECITALS
A. Whereas, the Employees are or were employed by the Newport Beach Fire Department
(the "1NTBFD ") and are or were in a bargaining unit whose exclusive representative was
the Association;
B. Whereas the City and the Association are currently party to an memorandum of
understanding, effective until June 30,, 2014 (the "2012 -14 MOTY ), which succeeded the
prior memorandum of understanding between the City and the Association, which
expired on December 31, 2011 (the "2003 -11 MOU" and together with the 2012 -14
MOU, the "MOUs ");
C. Whereas, the Association alleges that during the time period of January 1, 2010 through
December 31, 2011, the City's overtime compensation did not satisfy the requirements of
the Fair Labor Standards Act ( "FLSA ");
D. Whereas, notwithstanding the Association's allegations, at all relevant times, the City
has compensated its employees pursuant to the terms set forth in the then - applicable
MOU between the City and the Association, which, in most cases, provided for higher
overtime payments than required under the FLSA;
E. Whereas, the parties have engaged in extensive negotiations in an attempt to resolve their
dispute;
F. Whereas, the Parties wish to avoid the potential uncertainty, expense and delay of
litigation and have therefore, based upon their extensive negotiations, agreed to a
settlement of their dispute, resolving and releasing all disputes and claims related to
payment of FLSA overtime during the periods covered by the MOUs;
G. Whereas, the Parties want to enter into this Agreement as hereinafter set forth:
NOW, THEREFORE, in consideration for the mutual promises and undertakings of the Parties
as set forth below, the City and the Association hereby agree as follows:
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I . No Admission. The recitals set forth in this Agreement are true and correct and are
hereby fully incorporated by reference into this Agreement. This Agreement affects
claims and demands which are disputed, and by executing this Agreement, no Party
admits or concedes any part of the claims, defenses, or allegations which were raised or
could be raised by any other party or any third party. Each Party expressly denies
liability for any and all claims or demands. The Parties acknowledge that this is a
compromise settlement of a disputed claim or claims. Moreover, neither this agreement
nor any part of this Agreement, shall be construed to be nor shall be admissible in any
proceeding as evidence of or any admission by any Party of any violation of law or any
wrongdoing whatsoever. This document may be introduced in a proceeding to enforce
the terms of the Agreement.
2. Settlement Temvs.
a. Settlement Amount. The City shall pay a total of S200,303.00, allocated as set
forth in Exhibit '11 ", which shall include all of the Employees' recovery. The
Settlement Amount was calculated pursuant to the terms of the 2012 -14 MOU,
which provides that:
FLSA Overtime shall consist of authorized work hours
worked in excess of the maximum number of hours
permitted by the United States Department of Labor
regulations pursuant to the FLSA 7(k) exemption for a
work period to be determined by the City. Use of Flex
Leave, Vacation Leave, Holiday Leave, and Sick Leave
shall not be considered as hours worked for the purposes of
determining eligibility for FLSA Overtime.
The Parties have agreed that the "work period" referred to in the foregoing shall
be twenty -four (24) days for the period covered by this Agreement. Because the
payments set forth on Exhibit "1" are based on hours worked and are paid as
earnings, such payments will be subject to withholding taxes.
Although the Parties do not agree that there is liability regarding the Employees'
claims, for purposes of this Agreement, the settlement amount represents the
agreed upon amount for all overtime compensation allegedly owed to the
Employees and all amounts allegedly owed for liquidated damages, and any and
all other damages and/or relief: recoverable by the Employees for the period
covered by the MOUs related to payment of FLSA overtime.
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b. Individual Waivers. Each of the Employees, as a condition of receiving the
settlement amount, shall execute, and the Association shall coordinate execution
and collection of individual waivers of claims against the City that are being
settled pursuant to this Agreement (each an "Individual Waiver" and collectively,
the "Individual Waivers "). The Association is responsible for transmitting
Individual Waivers to the Employees, collecting executed Individual Waivers,
and providing the executed Individual Waivers to the City. A form of Individual
Waiver is attached hereto as Exhibit "2''. Any Employee or former Employee
who fails or refuses to execute an individual release shall not be entitled to receipt
of any payment under this agreement.
c. Fair Allocation. The Association expressly agrees that the allocation of the
Settlement Amount as provided herein is fair, just and reasonable and acceptable
to them.
d. Resolution of Claims to Association Satisfaction. The Association expressly
agrees that this Agreement fully and completely resolves all concerns held by the
Association with respect to payment of overtime compensation from January 1,
2010 through December 31, 2011. The Association further acknowledges that, to
the best of its knowledge, the City is now in full compliance with the overtime
payment requirements of both the MOU and the FLSA and is not currently
engaged in any practices that would violate the FLSA with respect to overtime
compensation.
e. Payment of Settlement Amount. Payment of the Settlement Amount set forth
above and on Exhibit "1" shall not occur unless and until the Association collects
executed Individual Waivers from at least ninety percent (90 %) in number of the
Employees listed on Exhibit "I ". Upon collection of these executed Individual
Waivers, and delivery of these executed Individual Waivers to the City, the City
shall make the payments contemplated under this Settlement Agreement within
fifteen (15) business days following receipt
f. Release of Claims. In consideration for payment of the Settlement Amount, the
Association and Employees, their spouses, domestic partners; children, heirs,
estates, administrators, representatives, executors, attorneys, successors and
assigns hereby irrevocably and unconditionally release and discharge the City,
including its officers, employees, agents and attorneys, from any and all lawsuits,
claims, actions, demands, or other legal responsibilities, including any grievances
pursuant to the MOUs, of any kind that the Association or Employees have, or
may have, against the City relating to the facts upon which this Agreement is
based, including, but not limited to, any and all claims for failure to pay overtime
Page 3 of 7
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required under state or federal law existing prior to the execution of this release.
The Association expressly acknowledges and agrees that this release is an
essential and material term of this Agreement and, without such release, no
settlement would have been reached by the Parties.
g. Waiver of Unknown Claims. The Association acknowledges that there is a
possibility that subsequent to the execution of this Agreement, they may discover
facts that were unknown or unsuspected at the time this Agreement was executed,
and that if known by the Association at that time may have materially affected
their decision to execute this Agreement. Further, the Association has been
advised of the existence of Section 1542 of the California Civil Code, which
provides:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS AUCH THE CREDITOR DOES NOT 10\10W
OR SUSPECT TO EXIST MT HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, Mq-fICH IF
1QgOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR
Notwithstanding this provision, the releases set forth in this Agreement shall
constitute full releases in accordance with the terms. The Association knowingly
and voluntarily waives the provisions of Section 1542, as well as any other
statute, law, or rule of similar effect. The Association understands and
acknowledges the significance and consequences of this release and this specific
waiver of Section 1542.
h. Unanticipated consequences. The parties recognize and acknowledge that factors,
which have induced them to enter into this Agreement may turn out to be
incorrect or to be different from what they had previously anticipated, and the
parties hereby expressly assume any and all of the risks thereof and further
expressly assume the risks of waiving the rights provided by California Civil
Code Section 1542.
3. Knowledge of the Parties. The Parties understand and agree to the settlement, this
Agreement and the terms and conditions contained herein, and enter into this Agreement
knowingly and voluntarily. The Parties have been advised that they have the right to seek
legal advice with respect to this Agreement, including the releases contained herein, have
had the opportunity to consult with counsel, and have in fact consulted with counsel of
their choice. The Parties have investigated the facts pertaining to the settlement and this
Agreement and all matters pertaining thereto as deemed necessary. The Parties have
relied upon their judgment, belief knowledge, understanding and expertise after
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consultation with their counsel concerning the legal effect of the settlement and its terms.
By signing this document and the documents referred to herein, the Parties signify their
full understanding, agreement, and acceptance of this Agreement.
4. Entire Agreement. This Agreement, including its exhibits, contains the entire agreement
of the Parties regarding the subject matter of the Agreement and shall constitute the final
understanding between the Parties hereto. All prior negotiations made or which have
occurred prior to the date of this Agreement are merged into this Agreement.
5. No unwritten representations. Each of the Parties represents that in executing this
Agreement, the Parties do not rely upon and have not relied upon any representation,
promise, or statement not expressly contained herein.
6. No Additional Representations. Except of the terms of this Agreement, including
its exhibits, the Parties have not relied upon any statement or representation, written or
oral, made by any Party, or any of their respective agents, attorneys or any other person,
regarding any matter including, but not limited to, the federal or state income tax
consequences of the Agreement to any Party. The Parties expressly acknowledge and
agree that they have relied solely upon the advice of their own attorneys and/or
accountants as to the tax and benefit consequences of this Agreement.
7. Binding Agreement. This Agreement and all documents referred to herein shall bind and
inure to the benefit of each of the Parties hereto and their spouses, domestic partners,
children, heirs, estates, administrators, representatives, executors, attorneys, successors
and assigns. Except as expressly provided herein, this Agreement is not for the benefit of
any person not a Party hereto or any person or entity not specifically identified as a
beneficiary herein or specifically identified herein as a person or entity released hereby.
The Agreement is not intended to constitute a third party beneficiary contract.
8. Authority to Execute. Each Party hereto warrants to the other Party or Parties that he, she
or it has the full power and authority to execute, deliver and perform under this
Agreement and all documents referred to herein.
9. Interpretation and Construction. Any ambiguities or uncertainties herein shall be
equally and fairly interpreted and construed without reference to the identity of the Party
or Parties preparing this document or the documents referred to herein, on the
understanding that the Parties participated equally in the negotiation and preparation of
this Agreement and the documents referred to herein, or have bad equal opportunity to do
so. The headings used herein are for reference only and shall not affect the construction
of this Agreement.
Page 5 of 7
17
10. Governing Law and Venue. The settlement, this Agreement and the documents referred
to herein, shall be interpreted in accordance with the laws of the State of California and,
if necessary, Federal Law. To the extent that any Party brings an action to enforce the
terms of this Agreement, such action shall be filed and prosecuted in the Superior Court
for the County of Orange and/or the United States District Court for the Central District
of California, Southern Division, to the extent of that court's jurisdiction.
11. Agreement Does Not Establish Precedent. The Parties agree that the terms of this
Agreement are binding and will not establish any precedent, nor will this Agreement be
used as a basis by the Parties or anyone else to seek to justify similar terms in any
subsequent case.
12. Savings Clause. If any term, condition, provision or part of this Agreement is determined
to he invalid, void or unenforceable for any reason, the remainder of this Agreement will
continue in full force and effect.
13. Exhibits. All exhibits attached to this Agreement are hereby incorporated into this
Agreement as though fully set forth herein.
14. Exccution. This Agreement, and any document referred to herein, may be executed in
any number of counterparts, each of which may be deemed an original and all of which
together shall constitute a single instrument.
15. Effective Date. This Agreement shall become effective immediately following execution
by all of the Parties on the latest date appearing below.
PLEASE READ CAREFULLY: THIS SETTLEMENT AGREEMENT AND GENERAL
RELEASE OF CLAIMS INCLUDES A RELEASE OF KNOWN AND UNKNOWN
CLAIMS RELATED TO THE SUBJECT MATTER OF THIS AGREED'IENT.
Signatures on the following page.
Page 6 of 7
18
APPROVED AS TO FORM:
CITY A O KEY'S OFFICE
Date:
B z Y.I "�
Aaron C. Harp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
NEWPORT BEACH FIREFIGHTERS
ASSOCIATION
Date:
CITY OF \'ER'PORT BEACH,
a California municipal corporation
Date:
By:
Keith D. Curry
Mayor
Page 7 of 7
19
Individual Settlement Amounts
Newport Beach firefighters Association Overtime Pay
for the period January 1, 2010 through December 31, 2011
Employee No
Hours
PLSA 70Vertime ''
10540
150.0
$2,900
11694
90.0
$1,514
14083
133.5
$1,451
14082
170.0
$1,880
11149
40.0
5672
14081
10.0
S103
11237
240.0
$4,936
13621
120.0
$1,715
11186
154.0
$2,609
11984
100.0
$2,041
12187
140.0
$2,395
14284
110.0
$1,107
10976
129.0
$2,555
12779
58.5
5964
13678
120.0
$1,836
10909
70.5
$1,378
12606
80.0
$1,408
13679
210.0
$3,026
13055
140:0
$2,300
14287
170.0
$1,727
13053
120.0
$1,868
11420
80.0
$1,430
12197
110.0
$1,818
13599
120.5
$1,656
14085
150.0
$1,577
12922
75.5
$1,041
10750
150.0
$3,114
13680
140.0
$1,730
11825
90.0
$1,575
13256
95.0
$1,320
12569
86.0
$1,418
14285
160.0
$1,623
13156
106.0
$1,728
11139
131.0
$1,536
12374
80.0
$1,550
13824
140.0
$2,077
10299
120.0
$2,291
13056
115.0
$1,923
13151
87.0
$1,403
Exhibit 1
11/26/13
20
Individual Settlement Amounts
Newport Beach Firefighters Association Overtime Pay
for the period January 1, 2010 through December 31, 2011
Employee No.
Hours
FLSA 7k Overtime
14288
140.0
$1,488
12744
150.0
$2,451
10069
110.0
$1,906
13178
129.0
$2,169
10671
120.0
$1,912
12789
100.0
$1,682
12622
290.0
$4,491
14079
170.0
$1,897
13924
90.0
$1,064
12135
200.0
$3,864
14319
90.0
$905
13923
50.0
$619
13620
110.0
$1,570
10863
110.0
$2,190
13623
88.0
$1,287
13152
120.0
$1,845
12370
110.0
$2,247
10737
120.0
$2,419
13007
220.0
$3,722
10912
129.5
$2,619
12904
80.0
$1,391
14289
160.0
$1,623
10872
135.5
$2,399
10885
10.0
$194
11904
115.0
$1,650
12673
100.0
$1,602
12092
130.0
$2,175
12599
110.0
$2,187
13823
155.5
$2,245
10607
60.0
$1,210
12605
200.0
$3,269
10624
80.0
$1,418
13677
140.0
$2,115
11914
80.0
$1,434
13254
114.0
$1,695
13153
130.0
$2,029
10888
120.0
$2,079
11691
120.0
$2,372
10968
120.0
$1,927
13681
146.5
$2,266
13682
60.0
$774
11/26/13
21
Individual Settlement Amounts
Newport Beach Firefighters Association Overtime Pay
for the period January 1, 2010 through December 31, 2011
mployee No.
Hours
FLSA 7k Overtime
12017
130.0
$1,716
12090
60.0
$960
11445
120.0
$1,856
13622
120.0
$1,958
12538
90.0
$1,255
14086
110.0
$1,150
13684
100.0
$1,274
13054
80.0
$1,258
10986
160.0
$2,980
13683
167.5
$2,699
13258
100.0
$1,559
14283
30.0
$295
13052
120.0
$2,132
11562
260.0
$3,575
11036
110.0
$2,237
13255
105.5
$1,637
10626
106.0
$1,786
10282
80.0
$1,382
12532
73.0
$1,312
14286
150.0
$1,525
11047
100.0
$2,091
10857
145.5
$2,941
11532
81.5
$1,605
13179
50.0
$735
10593
125.0
$2,519
14087
150.0
$1,583
11555
130.0
$2,693
Total $200,303
Count 107
11/26/13
22
Exhibit 2
CITY OF NEWPORT BEACH
AGREEMENT REGARDNG PAYMENT OF WAGES AND GENERAL RELEASE OF CLAMS
This Agreement Regarding Payment of Wages and General Release of Claims (the "Agreement ") is
hereby entered into by and between the City of Newport Beach (the "City") and the Undersigned
Employee (the "Employee ") and provides as follows:
RECITALS
A. Whereas, the Employee is or was employed by the Ne£vport Beach Fire Department (the
NI BFD ")•
B. Whereas, while employed by the NBFD, the Employee is or w0�'a_ -- member of the Newport
Beach Firefighters Association IAFF Local 3734 (the 13FA" ); vcr ZIA
L
C. Whereas the City and the Association are,.cucr n L'y party to a memorandum ofunderstanding,
effective until June 30, 2014 (the "201x24 MOU )�whtchrsucceeds� the =prior memorandum
of understanding between the Ci€ pd the ctahon, which peed- n December 31, 2011
Al
(the `2008 -11 MOU and together X ith the 20,12-114 - OA
D. Whereas, the NBFA alleges that during,thetume penod of January 1, 2010 through December
�
3 L, 2011, the City's overtime comp atton 'd no sati's'fy the requirements of the Fair Labor
v A 3
Standards Act ( "FLSA) -9
E. Whereas notwithstanding the NBI.:,V allegations, at all relevant times, the City has
compensated rtsernployees pursuant to the _ e set forth in the MOUs, which, in most
cases, provrde,'•for lugherovertime payments than required under the FLSA;
F . ieas in reso7uh o£'thF-76—
-M ft-and the NBFA's dispute with respect to overtime payments
from January I,
'a 0110 through <1
e ember 31, 2011, the City and the NBFA have entered into
asettlement agreem ne t� (the "FLSA Settlement "), which is incorporated by reference herein,
pur`suant,to w ch the City has agreed to make a one -time, lump sum payment to employees
who may have been tmp ted by the City's payroll practices in exchange for the waiver and
releases set forth,in'the FLSA Settlement.
G. Whereas, pursuant to this Agreement, the Employee agrees to be bound by the terms of the
FLSA Settlement, including the waivers and releases set forth therein.
NOW, THEREFORE, in consideration for the mutual promises and undertakings of the Employee
and the City (together, the "Parties ") as set forth below, the Parties hereby agree as follows:
1. FLSA Settlement: The Employee understands that the NBFA negotiated the FLSA
Settlement with the City on behalf of its members regarding a dispute over the calculation for
Page 1 of 3
23
overtime payments under the FLSA for the period of January 1, 2010 through December 31,
2011. The Employee also understands that the FLSA Settlement includes a waiver of
liquidated damages and attorney's fees and that the FLSA Settlement shall be considered as
full and complete settlement of any overtime payments owed by the City to the Employees
for the period of time set forth above.
2. Agreement to Be Bound: The Employee hereby agrees to accept and be bound by the terms
of the FLSA Settlement, including the waivers and releases included therein.
3. Acknowledgement of Release. By entering into this Agreement, the Employee knowingly
�y
and voluntarily acknowledges, consents and agrees to the°=` Notice of Employee Under the
C
Fair Labor Standards Act" as contained in the United States - ;Department of Labor's Receipt
-
for Payment of Lost or Denied Wages, Employee Benefits, or oc•:Othe6Compensation (Form
WH -58), which provides as follows: "Your acc�ance of bac `w=wages due under the Fair
Labor Standards Act means that you have given up�y right you may�haave to g suit for
back wages under Section 16(b) of the Act-:P-Section l6(b� provides that =an _employee may
bring suit on his/her own behalf for unatd�mrn mum wages and/or overture compensation
and an equal amount as liquidated daCma es, plus Rbme} s f s andfco'sts. Generally a 2-
year statute of limitations apphe?_�to the overy,ollback a g s o not sign this receipt
unless you have actually receedpayment oeack wages due
ry
4. Waiver of Unknown Claims: The'� ptoyee aclmo_wledge-s that there is a possibility that
subsequent to the exntion of this`�Agr ement he o she may discover facts that were
z
unknown or unsuspected atzee time this Agreement was executed, and that if known by the
Employee .ttats� that time ma .,have mated ally affected his or her decision to execute this
Agreement;2fFurther, the Employee has beeniadvised of the existence of Section 1542 of the
a- a. --a. ' `tea
California Civil Code, - .which provides.
A GENERAL RELEASE DOES NOT EXTENT) TO CLAIMS WHICH THE
CREDITORS DOES NO OW OR SUSPECT TO EXIST IN HIS OR
r HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WIIICH
rti g 1Q?jQWN iiBY HEVI MUST HAVE MATERIALLY AFFECTED HIS
YY:I21ti74i 311977
Notwithstanding'this provision, the releases set forth in this Agreement shall constitute full
releases in cordance with the terms. The Employee knowingly and voluntarily waives the
provisions of Section 1542, as well as any other statute, law, or rule of similar effect. The
Employee understands and acknowledges the significance and consequences of this release
and this specific waiver of Section 1542.
Page 2 of 3
24
PLEASE READ CAREFULLY: THIS AGREEMENT, INCLUDING THE FLSA
SETTLEMENT, WHICH IS INCORPORATED BY REFERENCE HEREIN, INCLUDES A
RELEASE OF KNOWN AND UNKNOWN CLAIMS RELATED TO THE SUBJECT
MATTER OF THIS AGREENIENT.
Date:
Employee Name:
Employee Signatu
} r':
"jp'
Page 3 of 3
25