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CONTRACT 4993 Settlement AgreementDecember 8, 2015 Steven M. Berliner Liebert Cassidy Whitmore 6033 West Century Boulevard, Suite 500 Los Angeles, California 90045 Agreement No. 4993 Stephen H. Silver Silver, Hadden, Silver & Levine P.O. Box 2161 Santa Monica, California 90407 -2161 Re: In the Matler of the Calculation of Mnal Compensation of Employees and Retirees of the City of El Segundo Dear Mr. Berliner and Mr. Silver: CalPERS provides the following Agreement to withdraw (1) the CalPERS determination regarding the denial of Additional Pay from Compensation Earnable and (2) the resulting appeals submitted by the City of El Segundo (the "City") and retirees from the City. AGREEMENT TO WITHDRAW (1) CALPERS' DETERMINATION REGARDING THE DENIAL OF ADDITIONAL PAY FROM COMPENSATION EARNABLE; AND (2) RESULTING APPEALS SECTION 1. RECITALS. This Agreement to Withdraw (1) the CalPERS Determination regarding the denial of Additional Pay from Compensation Earnable; and (2) the resulting Appeals (the "Agreement") is entered into by and between the following parties: THE CITY OF EL SEGUNDO ( "the City ") and the CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM ( "CalPERS "); and the retirees fiorn the City who have filed appeals with CalPERS listed on Exhibit "A" to this Agreement (the "Appealing Retirees). The City reported as "compensation earnable" Additional Pay ( "Add Pay ") for employees of the following employee groups in the following monthly amounts: $1,200.00 — Executive, Management Confidential ( "EMC ") and Police Managers' Association ( "PMA") and $1,140.39 — Supervisory and Professional Employees ( "SPEA ") z ' CalPERS, the City and Appealing Retirees shall be referred to individually as a ( "Party") or collectively as (the "Parties"). ' These monthly figures are the highest amounts paid by the City and reported to CalPERS as compensation earnable. The. amounts increased overtime, 4695144.6 E1.140.060 Agreement No. 4993 Steven M. Berliner Stephen H. Silver Re: In the Matter of the Calculation of Final Compensation of Employees and Retirees of the City of E Segundo December 8, 2015 Page 2 CalPERS determined that the Add Pay was not reportable as compensation earnable because it was not included in the City's salary schedule. On April 3, 2015, CalPERS mailed a letter to the City stating that the Add Pay did not qualify as payrate as defined by California Government Code section 20636 because it was not included in the City's salary schedule. CalPERS asserted that inasmuch as (1) the Public Employees' Retirement Law (Government Code section 20000, et seq., the "PERL ") and the Regulations promulgated by CalPERS to implement the PERL do not provide for payrate in excess of the amounts set forth in a salary schedule, the payments failed to qualify as reportable compensation earnable. Appeal rights were given. The City and Appealing Retirees timely appealed on various dates. The appeals filed by the City and the Appealing Retirees were received by CalPERS. This Agreement applies only to employees and retirees hired by the City up to and including December 31, 2015, This Agreement will not apply to any other employees or retirees hired by the City after December 31, 2015. This Agreement applies to the facts in this case only, and does not apply to any other employees and/or retirees of any other contracting agency. The Parties have engaged in discussions to resolve the disputed issues in this case, for those affected retired employees and those employees who are similarly situated in that the terms and conditions of their employment allow them to be eligible for Add Pay. In conjunction with those discussions, the Parties have agreed as follows: SECTION 2. AGREEMENT TO INCLUDE ADD PAY IN COMPENSATION EA11NABLE FOR RETIRED AND CURRENT EMPLOYEES. All retirees and current employees hired up to and including December 31, 2015, will have Add Pay included in their compensation earnable at all times it was earned during their employment, including their final compensation measurement period, and it shall be utilized in calculating their allowance for retirement purposes. For all employees either still employed by the City or hired after December 31, 2015, Add Pay shall not be paid by the City but the City shall increase the salary it pays for all classifications that had been eligible for Add Pay. The higher salary as set forth in the revised salary schedules shall be deemed payrate and shall be included in compensation earnable. To the extent Add Pay is eliminated prospectively and the City's salary schedules adjusted, CalPERS shall not, at any time, trace the increased payrate back to Add Pay nor consider it an unlawful conversion of non - reportable pay, On or before December 31, 2015, the City will present to the CalPERS Board approved revised pay schedules for all groups that received Add Pay. On or before ninety (90) days following the execution of this Agreement by all Parties, CalPERS shall adjust the retirement allowance of each of the Appealing Retirees and any other 4695144.6 EL140 -060 Agreement No. 4993 Steven M, Berliner Stephen H. Silver Re: In the Matter of the Calculation of Final Compensation of Employees and Retirees of the City of El Segundo December 8, 2015 Page 3 retired City employee who received a determination letter from CalPERS to exclude Add Pay from his /her final compensation. The adjustment shall be to include Add Pay in compensation earnable and final compensation less the calendar year 2014 minimum employer contribution required under the Public Employees' Medical and Hospital Care Act (Government Code section 22750, et seq., "PEMHCA ") which was $119 per month, and CalPERS shall provide to each such retired employee the difference between (a) what the retirement allowance should have been had Add Pay (less the minimum employer PEMHCA contributions) been taken into account as part of his/her final compensation and (b) the amount of the actual allowance provided, retroactive to the date of his/her retirement. Each payment to a specific member of the Appealing Retirees shall be conditioned upon that specific member of the Appealing Retirees executing a WAIVER AND DISMISSAL OF APPEAL form, a copy of which is attached hereto as Exhibit `B ", which specifies that (1) the individual relinquishes and waives his/her right to assert in any forum, whether in law or equity, any future claim that is related to the inclusion of Add Pay in compensation earnable for purposes of calculating his/her retirement allowance; and (2) he /she is dismissing it with prejudice. As part of this Agreement, acid the settlement of the disputes between the City and CalPERS, any other City retiree who is currently receiving retirement benefits calculated based on the inclusion of Add Pay in compensation earnable shall continue to receive retirement benefits based on inclusion of Add Pay in compensation earnable and final compensation. Those individuals are listed in Exhibit "C" to this Agreement. Any current City employee who (1) received Add Pay; and (2) retires after the effective" date of this Agreement with a Final Compensation Measurement Period that includes part of 2015 and part of 2016, shall have his/her retirement benefits calculated to include Add Pay(less the minimum employer PEMHCA contribution) in compensation earnable for the portion of the employee's final compensation period up to and including December 31, 2015 and to use the revised salary schedules for determining the payrate component of compensation eamable for the portion of the employee's final compensation period from January 1, 2016 and thereafter. As for Appealing Retiree Steve Tsumura, CalPERS agrees to calculate his retirement benefits in conformity with this Agreement but does not agree to treat him as a safety member for the entire duration of his employment for purposes of calculating retirement benefits. The pending appeals filed by the City and Mr. Tsumura regarding his safety status are not impacted by this Agreement and shall proceed forward separate and apart from this Agreement. Section 3, DISMISSAL OF APPEALS. The City and Appealing Retirees agree to dismiss with prejudice all appeals filed by them with CalPERS, and further to waive any and all claims pertaining to the matters subject to their appeals in any forum. 4695144.6 EL140 -060 Agreement No. 4993 Steven M. Berliner Stephen H. Silver Re: In the Matter of the Calculation of Final Compensation of Employees and Retirees of the City of El Segundo December 8, 2015 Page 4 Section 4. NO FURTHER ACTION. Each Party to this Agreement agrees not to bring any action or maintain any new or further proceedings against the other under any grievance or arbitration procedure or with any court, neutral or administrative agency, or in any other forum whatsoever, by reason of any claim, loss, liability, demand or cause of action against the other related in any. way to this appeal. The Parties represent they have not filed or initiated any such other actions or proceedings. Section 5. NO CHANGE TO OTHER RETIREMENT BENEFITS. Nothing in this Agreement affects service credit for any retired, current or future employee of the City, nor further diminishes their entitlement to continuing retirement benefits from Ca1PERS for service credit, including annual cost of living increases, that may otherwise apply to them. Section 6. WAIVER, DISCHARGE AND RE, LEASE. The Parties generally and specifically agree that each shall fully and forever discharge and release all claims, demands, debts, obligations, damages, liabilities and causes of action, whether now known or unknown, which either Party has against the other Party arising out of relating to the appeals filed by the City. For purposes of this section, "Party" or "Parties" shall include Ca1PERS, the Ca1PERS Board of Administration, the City of El Segundo and Appealing Retirees each of their respective past, present, and future officers, directors, board members, agents, assigns, successors, personal representatives, attorneys, administrators, receivers, trustees, and anyone acting by or on behalf of such persons. Section 7. WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542. Section 1542 of the California Civil Code provides as follows: 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. Each Party fully understands and expressly waives any and all respective rights under, and the benefits of, Section 1542 of the California Civil Code with respect to the subject matter of this Agreement. 4695144.6 EL140 -060 Agreement No. 4993 Steven M. Berliner Stephen H. Silver Re: In the Matter of the Calculation of final Compensation of Employees and Retirees of the City of El Segundo December 8, 2015 Page 5 Section 8. AGREEMENT NOT AN ADMISSION OF GUILT. This Agreement is a compromise of disputed claims and fully and finally settles all claims between the Parties. Neither the consideration hereunder nor anything contained in this Agreement shall be interpreted or construed to be an admission of liability on the part of any Party named herein. This Agreement is not to be construed as an admission of guilt or fault on the part of any Party to the agreement. Section 9. SUFFICIENCY OF CONSIDERATION. The sufficiency of the consideration for the mutual covenants, obligations, and agreements contained in this Agreement is acknowledged by the Parties. Section 10. SUCCESSORS AND ASSIGNS. All terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective representatives, successors and assigns. Each Party represents and warrants that he /she /it has not assigned or transferred to any person or entity any of the rights, claims, and demands released or discharged under this Agreement. Any such assignment or transfer shall be null and void from inception. Section 11. ENTIRE AGREEME, NT. This Agreement contains the entire agreement between the Parties relating to its subject matter and all prior and contemporaneous agreements, understandings, representations, and statements, both oral and written, are merged herein. This Agreement is complete, exclusive, and the final embodiment of the Parties' intent. The Agreement may be modified only in a written document signed by both Parties. All prior agreements, understandings, oral agreements and writings are expressly superseded hereby and are of no further force or effect. Section 12. MODIFICATION. This Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by the Parties and/or their authorized representatives. Section 13. SEVERABILITY. Should any provision of this Agreement be declared by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity and enforceability of the remaining parts, terms or provisions shall not be affected thereby, and said illegal, unenforceable 4695144.6 EL140 -060 Agreement No. 4993 Steven M. Berliner Stephen H. Silver Re: In the Matter of the Calculation of Tinal Compensation of Employees. and Retirees of the City of El Segundo December 8, 2015 Page 6 or invalid part, or provision shall be deemed not to be a part of this Agreement provided that the material consideration received by either Party is not defeated. Section 14. LAW OF THE AGREEMENT. This Agreement and Mutual Release of All Claims shall be construed and enforced with, and governed by, the laws of the State of California. Any action or proceeding brought for the purpose of enforcing this Agreement shall be governed by the laws of the State of California, including but not limited to the PERL. Any dispute under this Agreement shall be resolved only in a legal proceeding filed in the Superior Court for the State of California, County of Sacramento. Section 15. AMBUGUITIES NOT HELD AGAINST DRAFTER. This Agreement having been freely and voluntarily negotiated by the Parties, the rule that ambiguous contractual provisions are construed against the drafter of the provision shall be inapplicable to this Agreement. The Parties have participated jointly in the negotiation and preparation of this Agreement, and each Party has had the opportunity to obtain the advice of legal counsel and to review and comment upon this Agreement. This Agreement shall be construed as if the Parties jointly prepared it, and neither in favor of nor against any Party. Section 16. UNDERSTANDING OF AGREEMENT. All Parties acknowledge and agree they are represented by counsel, or have the right to be represented by counsel, in connection with the drafting and execution of this Agreement and that they have read and fully understand the terms and conditions of the Agreement. The District and CaIPERS assume no liability for any taxes or other tax- related claims related to this Agreement. Section 17. EFFECTIVE DATE OF AGREEMENT. This Agreement is expressly made conditional upon all parties' signature of the Agreement. The effective date of this Agreement is the first date on which all Parties have signed this Agreement and /or executed a WAIVER AND DISMISSAL OF APPEAL form. Section 18. EXECUTION BY COUNTERPARTS, This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall together constitute one and the same instrument. Copies of each signed counterpart may be used in lieu of the originals for any purpose. Facsimile signatures of the Parties shall have the effect of original signatures. 4695144.6 EL140 -060 Agreement No. 4993 Steen M. Berliner Stephen H. Silver Re: In the Matter of the Calculation ofTinal Connpensation of Employees and Retirees of the City of Ll Segundo December 8, 2015 Page 7 BY AFFIXING HIS OR HE, R SIGNATURE BELOW, EACH OF THE PERSONS SIGNING THIS AGREEMENT REPRESENTS THAT HE /SHE HAS READ AND UNDERSTANDS TIES AGREEMENT, THAT HE, E /Sl IE IS AUTHORIZED TO SIGN THIS AGREEMENT, AND THAT THE PARTY ON BEHALF OF WHOM HE /SIZE SIGNS THIS AGREEMENT AGREES TO BE BOUND BY ITS TERMS. IN WITNESS THE, RE, the parties have sign this Agreement the ay and year written next to their signatures below in a manner 1`iillyt ding iipitheni. Dated: t~'aicr�'ii� winter, C"" y Manager City ol" a,' lsegaiiitl Dated: Stephen H. Silver, on Belia , Appealing kie Dated: Donna Rainek* Deputy Executive Officer, Customer Services and Support, CaIPERS 6plg.gvcd t tai l- orlji: Dated: Liebert Cassidy Whitmore Steven M. Berliner, Attorney for City of rl Segundo Dated: Silver Hadden Silver & Levine Dated: 4695144.6 CL140 -W)O p 6�� -ff— elver, on Behalf of Appealing __.�_wm._ Ste hen H. S' Retirees California Public Employees' Retirement System lra �, laic Attorney CalP.�E�.R. S Agreement No. 4993 Steven M. Berliner Stephen H. Silver Re: In the Matter of the Calculation of Tinal Compensation of Employees and Retirees of the City of E1 Segundo December 8, 2015 Page 7 BY AFFIXING HIS OR HER SIGNATURE BELOW, EACH OF THE PERSONS SIGNING THIS AGREEMENT REPRESENTS THAT HE /SHE HAS READ AND UNDERSTANDS THIS AGREEMENT, THAT HE/SHE IS AUTHORIZED TO SIGN THIS AGREEMENT, AND THAT THE PARTY ON BEHALF OF WHOM HE /SHE SIGNS THIS AGREEMENT AGREES TO BE BOUND BY ITS TERMS. IN WITNESS THEREOF, the parties have signed this Agreement the day and year written next to their signatures below in a manner fully binding upon them. Dated: Dated: Dated: Dated: / vs- Dated: Dated: 4695144.6 EL140 -060 Greg Carpenter, City Manager City of El Segundo Stephen H. Silver, on Behalf of Appealing Retirees Donna Ramel Lum, Deputy Executive Officer, Customer Services and Support, Ca1PERS Liebert Cassidy Whitmore Steven M. Berliner, Attorney for City of El Segundo Silver Hadden Silver & Levine Stephen H. Silver, on Behalf of Appealing Retirees California Public Fmployees' Retirement System Elizabeth Yelland, Attorney for Ca1PERS Agreement No. 4993 Steven M. Berliner Stephen H, Silver Re: In the hfatter of the Calculation of Tinal Compensation of Employees and Retirees of the City of El Segutulo December 8, 2015 Page 7 BY AFFIXING HIS OR HER SIGNATURE BELOW, EACH OF THE PERSONS SIGNING TIILS AGREEMENT REPRESENTS THAT HE/SHE HAS READ AND UNDERSTANDS THIS AGREEMENT, THAT IIE /SHE IS AUTHORIZED TO SIGN THIS AGREEMENT, AND THAT THE PARTY ON BEHALF OF WHOM HE/SHE SIGNS THIS AGREEMENT AGREES TO BE BOUND BY ITS TERMS. IN WITNESS THEREOF, the parties have signed this Agreement the day and year written next to their signatures below in a manner filly binding upon them. Dated: Greg Carpenter, City Manager City of El Segundo Dated: jjtl yym6 +t 6,, 461,S Step n H. Silver, on Behalf of Appealing Retirees Dated: Donna Ramel Lum,.Deputy Executive Officer, Customer Services and Support, Ca1PERS & p roved as Iq Egli n : Dated: Liebert Cassidy Whitmore Dated: '1) t if n lb C% zf-, k a 13 Dated: 4695144.6 EL140.060 Steven M. Berliner, Attomey for City of El Segundo Silver Hadden Silver & Levine Stephen H. Silver, on Behalf of Appealing Retirees California Public Employees' Retirement System Elizabeth Yelland, Attorney for CalPERS Agreement No. 4993 EXHIBIT "A" TO SETTLEMENT AGREEMENT Gilbert R. Busick 2. Robert H. Cummings 3. Ellen L. Cunningham 4. Linda C. Domann 5. Susan A. Drennan 6. Richard D. Guyer 7. Mary M. Kobus 8. Steve H. Tsumura 5231887.1 8LMO -060 Agreement No. 4993 EXHIBIT i°B" TO SETTLEMENT AGREEMENT Date CaIPERS Legal Office P.O. Box 942707 Sacramento, California 94229 -2707 In consideration for the inclusion by Ca1PERS of Additional Pay ("Add Pay ") I received from the City of El Segundo, less ($119 per month) in my final compensation and in the calculation of my retirement allowance, and in consideration of the City of El Segundo's elimination of Add pay increase and in the salary schedules of employee groups which received Add Pay, I hereby waive my right to assert in any forum whether in law or in equity, against either CaIPERS or the City of Segundo, or any affiliated persons or entities of either, any claim, cause of action or any other legal proceeding in any way related to the inclusion or exclusion of Add Pay in my "compensation earnable" or "final compensation," In addition, I also dismiss with prejudice my individual appeal of the original action of Ca1PERS declining to include Add Pay in the calculation of my retirement allowance, Signed, Name Address SSN 5231887.1 CL140 -060 EXHIBIT "C" TO SETTLEMENT AGREEMENT p Agreement No. 4993 Status Name 1 Retired 6ftnjMA-ntj2.o-U I Retired 3 Retired AaqqLj _u(AI 4 Retired AaLqJ2, � r 5 lRetired 6 jRetired, AlMOBruce 7 Retired Ow—MA, PLWd 8 Retired Dihie-J-0ji-il a Retired Bott, Donald 10 Retired , nP @gj ALwp ii lRetired ALmLImM 12 Retired g_y_rk_h_gd_q-rM 13 IRetired 14 �Retifed vMLTh2Mlbj 15 lRetired hander Ira 16 Retired Claleot,s, nary 17 Retired Cleary, Orel 18 Retired gmwrldj-nl 19 lRetired tr-0—HINI—Blan 20 Retired _CuMailngs-LPLvLd 21 iRetired Ctj mmlnaog�—ert 22 Retired QmainaLa I—len 23 Retired gg tOM- c-kl-n-le -Y 24 lRetired 1K) j&B2WW p Agreement No. 4993 Agreement No. 4993 Agreement No. 4993 51 Retired hiq2ok Jecqvaline 52 Retired h "RqA 53 Retired 1e °i to&De 54 Retlred rt 55 Retired aonas. Marvem 56 Retired LoaWjLulQ 57 lRedred Ketz, Christine 58 Retired K ikll 59 Retired Kebus. Mary Go Retired gE@_m r 61 Retired Krum,tach�jee0 62 . Retired � 'L4 63 R 64 Retired Lldster, Unda 65 Retired i, 66 Retlred a—Isla rS n , 67 Retired Mff_tJnMLIjM 68 Retired Mgep eanne 69 Retired Meeban. f_rank 70 Retired 2w li;Lr 71 Retlred c r " my 72 Retired 73 Retired tirt send � is 74 Retired MgLvar1Y, A leer 75 Retired {IVi>. Nrghy,&g ur 76 Retired Ner a l K tir Agreement No. 4993 77 Retired IC e1 I-it 78 Retired PA y 1x La 79 lRetired Osnower. jjphagig 80 Retired 81 Retired I 82 IRetired fftney.Darlene 83 Retired Roacltatrrk 84 Retired !_qlli_ns rr 85 Retired Bg& a k 86 Retired 187 Retired Scheu. Rondea 88 Retired c O tjlM .i r jeer 89 Retired 'Liam fold 90 Retired signiierMz %vld 91 Retired Loa Csa+vlr' 92 Retired aff rB , IVIPAn 93 Retired' ev 94 Retired Strenrl�,.Mm 95 Retlred � hhbus h ;Sara 96 Retired tlLvA` 88Y 97 ,Retired JU or Clara rRedred u v ioo Retired 1ar�l. ",'rarrtF 101 Retired W—Ir rrrwMP 102 1 Retired lwmwomll Agreement No. 4993