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CC Resolution 13111 - Approval of Settlement Agreement with CPOA RESOLUTION NO. 13111 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS BETWEEN THE CITY OF CAMPBELL AND THE CAMPBELL PEACE OFFICERS' ASSOCIATION (CPOA) REGARDING BACK PAY OWED TO CURRENT AND FORMER CPOA MEMBERS UNDER THE FAIR LABOR STANDARDS ACT WHEREAS, in 2021, the City of Campbell (City) became aware of a potential issue with its calculation of overtime payments owed to employees under the Fair Labor Standards Act (FLSA); and WHEREAS, in 2022 and 2023, the City worked to analyze back pay potentially owed for each bargaining group; and WHEREAS, while analyzing back pay potentially owed to members of the Campbell Peace Officers' Association (CPOA), the City became aware of additional technical issues with the CPOA's overtime calculations; and WHEREAS, the City has now completed its analysis and calculations for back pay owed to members of the CPOA; and WHEREAS, the City is recommending the City Council approve a Settlement Agreement And Release of Claims (Settlement Agreement) between the City and the CPOA, attached hereto and made a part hereof; and WHEREAS, the Settlement Agreement covers from July 1, 2017 through March 19, 2023 for claims arising from calculations related to the City's "insurance rebate" and compensatory time off(CTO); and WHEREAS, the Settlement Agreement also covers from January 1, 2020 through March 19, 2023 for claims arising from calculations related to "add-on pays"; and WHEREAS, the Settlement Agreement amount is for a total of up to $69,359.91; with $67,022.00 payable to current employees, and up to $2,337.91 payable to former employees. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Campbell does hereby approve the attached Settlement Agreement and Release of Claims for a total amount of up to $69,359.91. PASSED AND ADOPTED this 6th day of February, 2024, by the following roll call vote: AYES: Councilmembers: Bybee, Furtado, Scozzola, Lopez, Landry NOES: Councilmembers: None ABSENT: Councilmembers: None APPROVED: Susan M. L dry, Mayor ATTEST: ha Andrea Sanders, Clerk SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This Settlement Agreement and Release ("Agreement") is entered into by and between the City of Campbell ("City")and the Campbell Peace Officers' Association("Association"). This Agreement is effective on the Effective Date set forth below. RECITALS A. WHEREAS,the Association is the designated exclusive bargaining representative of those City job classifications in the bargaining unit that are identified in the labor agreement by and between the City and the Association; and B. WHEREAS,the City recently undertook an internal review of its overtime policies and practices to ensure compliance with the calculation and payment of overtime requirements of the parties' labor agreement and the Fair Labor Standards Act("FLSA"); and C. WHEREAS,the City's internal review determined that certain aspects of its contractual overtime policies and practices pertaining to the calculation of the regular rate of pay did not strictly comply with the particular requirements of the FLSA and that other aspects of its overtime policies and practices exceeded the requirements of the FLSA; and D. WHEREAS,the City undertook an internal analysis to determine the amount of back overtime due to the current and former members of the bargaining unit had their overtime and cash out of accrued Compensatory Time Off("CTO") been calculated in compliance with the labor agreement and the FLSA; and E. WHEREAS, effective March 20, 2023,the City amended its overtime practices to comply with the requirements of the labor agreement and the FLSA; and F. WHEREAS,the Parties wish to enter into a compromise and release related to any and all claims by the Association on behalf of the bargaining unit members regarding the calculation and payment of overtime and accrued CTO under the labor agreement. NOW THEREFORE, in consideration for the mutual promises and undertakings of the Parties as set forth below,the Parties enter into this Agreement and agree as follows: A. Settlement Settlement Period: The Parties agree that this settlement will cover the time period from July 1, 2017 through March 19, 2023 for claims arising from the City's omission of cash in lieu of health benefits (also referred to as "insurance rebate")from the regular rate of pay and CTO cash out value for both active employees and former employees. The Parties further agree that this settlement will cover the time period from January 1, 2020 through 12202686.3 CA025-032 March 19, 2023 for claims arising from the City's omission of other compensation items (also referred to as "add-on pays")from the regular rate of pay for active employees. These time periods shall hereafter collectively be referred to as the"Settlement Period". Only individuals who were a member of the bargaining unit represented by the Association during the Settlement Period are covered by and subject to the terms of this Agreement. Bifurcation of Settlement: The parties further agree that this settlement is designed to effectuate the payment of the settlement amounts in two parts.Part One will cover current bargaining unit members and provide for the payment of the settlement amounts listed in Attachments A- C. Part Two will cover all former City employees who left the bargaining unit during the Settlement Period, as confirmed by the City, and provide for the payment of the settlement amounts listed in in Attachments D-E. The settlement and payment of back overtime under Parts One and Two will be as described below. Settlement Calculation Methodology: The Parties agree that in determining the amount of back overtime compensation owed pursuant to this settlement,the City has identified each pay period in the Settlement Period that former and current bargaining unit members received overtime and recalculated the overtime by including the insurance rebate and add- on pays incorrectly excluded from the overtime regular rate of pay calculation.Add-on pays to now be included as part of the FLSA overtime calculation per this settlement agreement are: • Bilingual pay; • Conditional-Opt-Out Incentive Pay; • Working-Out-Of-Class Pay; • Specialty Pay; • Canine Pay; • Motorcycle Pay; • Crisis Intervention Training Pay; and • Peace Officers Standard Training(POST)Pay. Settlement Part One: Based on the calculation methodology summarized above,the City will pay a total amount of$67,022.00 to current employees in the bargaining unit,hereafter referred to as the Part One Settlement Amount. The allocation of the Part One Settlement Amount to the current bargaining unit members will be as set forth in Attachments A through C,hereafter referred to as"Part One Settlement Payments". The Parties understand and agree that the Part One Settlement amount represents a reasonable compromise of disputed claims and reflects agreed upon and negotiated consideration for any and all overtime compensation allegedly owed to the current members of the bargaining unit under the labor agreement, during the Settlement Period. By executing this agreement and accepting the payments set forth in Attachments A through C,the Association, on behalf of the bargaining unit members and each of them, expressly waives the bargaining unit's claims for any and all further recovery, including,but not limited to, back pay due to the City's contractual overtime policies and practices pertaining to the calculation of the regular rate of pay. Payment of the amounts listed in Attachments A-C will occur within ninety(90) calendar days of the Effective Date of this Agreement. 12202686.3 CA025-032 Settlement Part Two: Within ninety (90) calendar days of the Effective Date of this Agreement,the City will send written notice to each of the former bargaining unit members listed in Attachments D and E,providing them with a copy of this settlement agreement and its attachments. The notice will advise the former bargaining unit members of the Parties' disputed claims and issues pertaining to the City's overtime compliance and of their right to opt into the negotiated settlement, by submitting a fully executed individual acknowledgment and acceptance of this Agreement form,which is attached to this Agreement as Attachment F("Opt-in Form). Each former bargaining unit member will be provided sixty (60) calendar days from the date of the notice to execute and return the Opt- In Form to the City. No later than thirty(30) calendar days after the deadline for former members to return their executed Opt-in Forms,the City shall issue payment to all former members who timely submitted their fully executed Opt-in Forms. B. Bona Fide Dispute The Parties agree that this settlement resolves a"bona fide" contractual dispute over the City's overtime policies and practices pertaining to the calculation of the regular rate of pay. Specifically,the Parties, by this Agreement,are settling a dispute regarding the City's method of calculating the regular rate of pay and measuring overtime compensation due bargaining unit members per the terms of the labor agreement,which the Parties believe to be more favorable than what is required under the FLSA. The Settlement Payments are paid as full and complete consideration for the resolution of that dispute. C. Method of Payment The Parties understand and agree that the payments under the Settlement Part One will be issued as part of the Employees' regular paycheck, itemized as RETRO OVERTIME PAY. The Parties further understand and agree that the payments issued pursuant to this Agreement are subject to the standard, applicable tax withholding amounts and that neither Party has offered or received tax advice to or from the other as to the necessary reporting of income pursuant to this settlement. D. Acceptance of Terms and Conditions of Settlement By accepting the payments provided by this Agreement, each current and former bargaining unit member expressly agrees that the allocation of the Settlement Amount, as provided herein, is fair,just, and reasonable and acceptable to all of them. E. General Release Each current and former bargaining unit member listed in Attachment A through E, by accepting his/her respective settlement amount,understands and agrees that their acceptance of that amount constitutes a full and complete settlement of all contractual claims against the City for the contractual overtime policies and practices pertaining to the calculation of the regular rate of pay that may exist or have existed for services rendered 12202686.3 CA025-032 during the Settlement Period.Further, each current and former bargaining unit member, listed in Attachments A through E by accepting his/her respective settlement amount, hereby fully, finally, and completely releases, waives and discharges the City, and its officers, agents, employees, successors and assigns from any further claims for contractual overtime due for services rendered during the settlement period. The current and former bargaining unit members reserve the right to pursue any non-contractual claims for back overtime amounts not covered and paid under this Agreement. The Parties to this settlement understand that this Release extends to all grievances, disputes, or claims of every nature and kind, known or unknown, suspected or unsuspected, arising from or attributable to the City's contractual overtime policies and practices pertaining to the calculation of the regular rate of pay during the Settlement Period. The Parties understand that this release does not include claims relating to conduct or activity which does not arise from or is attributable to any conduct or activity occurring after the Settlement Period of this Agreement. The Parties understand that this is a compromise settlement of disputed claims and that nothing herein shall be deemed or construed at any time or for any purpose as an admission of the merits of any claim or defense. The Parties further acknowledge that any and all rights granted them under section 1542 of the California Civil Code are hereby expressly waived regarding the contract overtime claims occurring during the Settlement Period relating to the City's contractual overtime policies and practices pertaining to the calculation of the regular rate of pay. Section 1542 of the California Civil Code provides as follows: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. F. Knowledge of the Parties The Parties understand and agree to this Agreement, and the terms and conditions contained herein, and enter into this Agreement knowingly and voluntarily. The Parties have investigated the facts pertaining to this Agreement and all matters pertaining thereto as deemed necessary. The Parties have relied upon their judgment, belief, knowledge, understanding and expertise after consultation with their designated legal representatives concerning the legal effect of the settlement and its terms.By signing this Agreement,the Parties signify their full understanding, agreement, and acceptance of the Agreement. G. Governing Law and Venue This Agreement will be governed by and construed 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 12202686.3 CA025-032 enforce the terms of this Agreement, such action shall be filed and prosecuted in the Superior Court in the County of Santa Clara. H. Entire Agreement This Agreement and the attachments constitute the entire agreement between the Parties regarding this matter.No other promise or inducement has been offered for this Agreement. Any amendments to this Agreement must be in writing, signed by duly authorized representatives of the City and the Association, and must state that the Parties intend to amend the Agreement. I. Duty to Act in Good Faith The Parties shall act in good faith and use their reasonable good faith efforts after the execution of this Agreement to ensure that their respective obligations hereunder are fully and punctually performed. The parties shall promptly perform any further acts and execute and deliver any other documents or instruments that may be reasonably necessary to carry out the provisions of the Agreement. J. Partial Invalidity The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision of this Agreement. K. Confidentiality and Disclosure of Terms The Parties each agree to maintain the confidentiality of the negotiations underlying this Agreement to the extent permitted by law, and agree that they shall not voluntarily and publicly discuss the negotiations that led to this Agreement. This provision shall not extend to any information relating to the negotiations of this Agreement that the City may be required to disclose pursuant to the requirements of the Ralph M.Brown Act, Government Code section 54950, et. seq.,the California Public Records Act, Government Code section 7920, et. seq., or the provisions of any other law or regulation requiring disclosure of information by public entities. L. Counterparts This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together shall constitute one-in-the-same document. M. Effective Date This Agreement shall become effective following execution by all of the Parties,the undersigned counsel for the Parties, and the approval of the City Council. 12202686.3 CA025-032 IN WITNESS WHEREOF,the Parties hereto have executed this Settlement Agreement and Release on the dates hereinafter indicated. FOR THE CITY OF CAMPBELL FOR THE CAMPBELL POLICE OFFICERS ASSOCIATION ibeCtri4 hail Rit124.T. Matt Ryan, President Date: 6 rQ h 29' Date: December 15, 2023 APPROVED AS TO FORM APPROVED AS TO FORM Lisa Charbonneau,LCW Peter Hoffmann, RLS Date: l?- f 2. 2 / 2 3 Date: December 28, 2023 1 12202686.3 CA025-032 1 Attachment A CTO Insurance Rebate—Current Employees MARK G CUTLER - VICTOR M QUINTERO 830.03 SPENCER A BILLMAN 1,772.32 WILLIAM NUNN JR 941.62 BRAD D RICE 3,860.27 JASON D FAVREAU 911.62 JAMES W JOINES 1,533.47 LEE W HEITZMAN - DANIEL P STROMSKA 6,552.19 MARGARET F LEITZ 1,108.49 JAMES C COOPER 591.00 NAJIB M MAGEE JORDAN A FINESTONE - MICHAEL S KARDAN - DARRICK HONG 2,523.57 ADAM M ALAMEDA 2,135.85 STEVE T MUNOZ 1,235.37 JOSE I TALAMANTES - CHRISTOPHER JOINES 1,729.86 Sub-Total 25,725.66 12202686.3 CA025-032 Attachment B CTO Add-On Pays—Current Employees Active MARK G CUTLER 2,979.22 VICTOR M QUINTERO - SPENCER A BILLMAN 1,087.73 WILLIAM NUNN JR 407.80 BRAD D RICE 3,075.84 JASON D FAVREAU 829.34 JAMES W JOINES 238.44 LEE W HEITZMAN 819.67 DANIEL P STROMSKA 3,231.97 MARGARET F LEITZ 1,623.52 JAMES C COOPER - NAJIB M MAGEE 779.40 JORDAN A FINESTONE 996.08 MICHAEL S KARDAN 339.42 DARRICK HONG 1,195.82 ADAM M ALAMEDA 1,897.02 STEVE T MUNOZ 881.70 JOSE I TALAMANTES 757.62 CHRISTOPHER JOINES - Total 21,140.58 12202686.3 CA025-032 Attachment C Overtime Pay—Regular Rate EE# First Last Amt 1839 ADAM M ALAMEDA '1,926.77 1895 GARY BENDIXEN 722.76 1770 SPENCER BILLMAN 2,132.79 1877 SCOTT BUCKOVIC 841.44 1886 ANDREW COLTON 93.05 1827 JAMES C COOPER 400.01 1647 MARK CUTLER 47.44 1780 JASON FAVREAU 554.03 1830 JORDAN A FINESTONE 88.89 1807 EDITH G FONG 433.48 1834 DARRICK HONG 1,157.18 1904 CODY JOHNSON 9.78 1874 CHRISTOPHER JOINES 658.86 1783 JAMES JOINES 272.90 1833 MICHAEL S KARDAN 1.62 1796 MARGARET LEITZ 124.25 1862 DANIEL LEON 0.04 1829 NAJIB M MAGEE 23.63 1840 STEVE T MUNOZ 2,479.54 1776 WILLIAM NUNN 1,725.19 1899 BENJAMIN PALMER 75.08 1870 RACHEL PECKHAM 190.16 1766 VICTOR QUINTERO 436.99 1795 ANDRE RIBEIRO 33.07 1777 BRAD RICE 1,396.85 1810 MATTHEW RYAN 537.74 1841 ANDREW C SERRANO 432.96 1762 BRIAN SESSIONS 148.33 1792 DANIEL STROMSKA 1,893.50 1903 DOMENIC VAIASICCA 70.11 1900 NATHANIEL VELICHKO 758.50 1747 IAN WHITE 488.82 Total 20,155.76 12202686.3 CA025-032 Attachment D CTO Insurance Rebate—Former Employees THOMAS ROGERS - ANA E SPEAR - DAVID C LOWRY 37.37 TERRY C GALLAGHER - DAVID V MENDEZ - DARWIN Y OKAMOTO 5.91 DAVID C CAMERON - DAVID R WETZEL - DAVID P LIVINGSTON - MICHAEL P SHORT - BRENDAN P BLIGH 36.33 JARED C JOHNSON 15.61 CHRISTOPHER F KIMMA 707.56 NICKOLAS T SKAGGS 181.21 STUART L HOWARD - CHRISTIAN R POTEAT - RAMIRO HERNANDEZ 26.94 Sub-Total 1,010.93 12202686.3 CA025-032 Attachment E Overtime Pay—Regular Rate CAMPBELL DUNCAN 613.34 TERRY GALLAGHER 74.70 STUART L HOWARD 0.14 JARED JOHNSON 13.42 DAVID LIVINGSTON 10.06 DAVID LOWRY 23.34 DAVID MENDEZ 124.37 DARWIN OKAMOTO 0.04 MATTHEW PAGE 37.69 CHRISTIAN R POTEAT 40.95 MICHAEL SHORT 39.72 NICKOLAS SKAGGS 17.35 ANA SPEAR 8.35 DAVID WETZEL 323.51 Total 1,326.98 12202686.3 CA025-032 Attachment F OPT-IN FORM Acknowledgement and Acceptance of the Settlement Agreement I, the undersigned, am a former employee of the City of Campbell. Between March 1, 2017 and my separation date, I was a member of the Campbell Police Officers Association. I hereby acknowledge that I understand and agree to the terms and conditions contained in this Settlement Agreement and Release of Claims (Settlement Agreement), as set forth in the above six(6)pages, and Attachments A through F. I understand that my representatives, the Campbell Police Officers Association (CPOA), have negotiated settlement with the City to resolve my claims in this dispute. I understand that my individual settlement payment amount is part of the City's total payment of$2,337.91 to other former employees. By accepting my respective settlement amount, I understand and agree that my acceptance of that amount constitutes a full and complete settlement of all contractual claims against the City for the contractual overtime policies and practices pertaining to the calculation of the regular,rate of pay that may exist or have existed for services rendered between July 1, 2017 and my separation date. I understand that my individual settlement payment amount will be reduced by state and federal taxes and/or other lawful withholding, if any. I understand that no later than [CINLYrIr; m1 a,t f arb 03:21g Ito Mz c? ; d I must execute and return this form to the City in order to recover payment under this Settlement Agreement. I understand the City shall issue my payment no later than thirty (30) calendar days after PR EMT fgiwn uCJ "m_Fi) if I have timely submitted this form to the City. I certify under penalty of perjury that the foregoing is true and correct. PrintName: Address: Signature: Dated: 12202686.3 CA025-032