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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. 5 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 2 6 §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. 3 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 0 9 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). 5 7 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). 0 10 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. 7 11 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 12 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: 13 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. Page 2 of 7 14 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 15 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 Page 4 of 7 16 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