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Exhibit CC 08-15-2017 Item No. 16 General Plan Amendments - Written Communications Lauren Sapudar From: Kirsten Squarcia Sent: Monday,August 14, 2017 8:20 AM To: Lauren Sapudar Subject: FW:Westport GPA Request Continuation on Aug 15, 2017. From: Munisekar [mailto: Sent:Sunday,August 13, 2017 11:59 PM To: City Council<CityCouncil@cupertino.org>; City Clerk<CityClerk@cupertino.org> Subject:Westport GPA Request Continuation on Aug 15, 2017. Dear Mayor Vaidhyanathan and City Council members, It is my understanding from attending August 1, 2017 City Council meeting till the end that GPA items 16A & 16B were unanimously approved to move forward and the same was recorded officially; where as item 16C was voted down in a straw poll with 4-1 voting against the request [Video Recording clip 5:55:30 - 6:02:25]; the same could not be recorded officially due to a procedural issue. I am not an expert on City matters and how these things work. I am speaking from a common resident perspective; looking at Aug 15th Agenda item for this topic and draft resolution attachment, I could not tell what to expect. I get the impression that fresh voting will be taken on 16C again on Aug 15th; if that is the case and if the voting does not reflect Aug 1 st straw poll, it begs the question- what has changed materially? If it changed materially, shouldn't be the public allowed to comment again? Seems like a botched process from get go. Moreover, if the voting does not reflect straw poll from Aug 1 st, it would be a major PR disaster for City Council as residents will lose confidence in our elected body; I would hate to see that happen as we are slowly recovering from Dec 4, 2014 city council fiasco. I would highly encourage you to stick with your comments from Aug 1 st meeting and straw'poll results on Westport GPA item 16C. On a side note, you may want to look at City staff and manager we have for competency. What the heck they were thinking in lumping all these GPA requests into one when those 3 had no interconnections whatsoever? There was a distinct possibility of each of these proposals getting voted differently; begs the question of competency. Whether we like it or not, you have highly engaged residents due to events over last 2 years; every move and action is being scrutinized carefully. BTW, I was very pleased with how engaged you were all on Aug 1 st and thank you for listening to the community and acting accordingly. Please record this email as part of public records. Cheers Muni Madhdhipatla Cupertino Resident i Lauren Sapudar From: Kirsten Squarcia Sent: Monday, August 14, 2017 8:21 AM To: Lauren Sapudar Subject: FW:August 15, 2017 City of Cupertino City Council Meeting, Agenda Item #16C General Plan Amendment for Oaks Shopping Center/Westport Cupertino From: Darrel Lum [mailto: Sent:Sunday, August 13, 2017 1:54 PM To: Savita Vaidhyanathan <svaidhyanathan@cupertino.org>; Darcy Paul <DPaul@cupertino.org>; Barry Chang <BChang@cupertino.org>; Steven Scharf<SScharf@cupertino.org>; Rod Sinks<RSinks@cupertino.org>; City Council <CityCouncil@cupertino.org> Cc: David Brandt<Davidb@cupertino.org>; Aarti Shrivastava <AartiS@cupertino.org>; Benjamin Fu <BenjaminF@cupertino.org>; City Clerk<CityClerk@cupertino.org>; City Clerk<CityClerk@cupertino.org> Subject:August 15, 2017 City of Cupertino City Council Meeting, Agenda Item #16C General Plan Amendment for Oaks Shopping Center/Westport Cupertino Subject: Consider whether to authorize the formal submission of General Plan amendment applications for the three proposals received in the 2017 Second Cycle including: 16A - Hotel at Cupertino Village site; 16B - Hotel at Good Year Tire store site; 16C - Mixed - use development at the Oaks Shopping Center(16A and authorized at the August 1 City Council meeting. 16C continued to August 15). Seems unusual to have 16A, 16B and 16C as one agenda item on August 1, 2017; seems even more unusual to have 16C this evening, now as one agenda item on August 15, 2017. City of Cupertino should revise its strategy In light of recent retail panel and recent events, Retail Strategy Report dated March 6, 2014, and its seven Study Areas: Study Area#1 Cupertino Inn and Goodyear Tire site > GPA Study Area #2 City Center site Study Area #3 PG&E site Study Area#4 Mirapath site Study Area #5 Cupertino Village site > GPA Study Area#6 Vallco Shopping District site Study Area #7 Stevens Creek Office Center site should be redone to be more current. Study Area #8 Oaks > GPA Notably, the City of Cupertino did request the same entity, Economic & Planning Systems, Inc., to review the Fiscal Analysis of the Cupertino Village Boutique Hotel, the Cupertino Hotel, and the Westport Cupertino GPA applications; especially the transient occupancy tax based on average daily room charge of$300 (Cupertino Village Boutique Hotel and Cupertino Hotel) and $200 average daily room charge for the hotel in Westport Cupertino, generating $1,701,630 for Cupertino Village Boutique Hotel, $1,434,888 for Cupertino Hotel, and $1,042,440 for the hotel in Westport Cupertino, all at 70% occupancy. These conclusions are vey optimistic, as to degree of percentage of occupancy due to hotel saturation with 8 to 11 hotels in the immediate area of the City of Cupertino (see existing, 1 under construction, approved, and GPA) and similiarly others in the market area (see below) as well as the daily room charge of$200-300. The City isn't getting the value from the developers but from the patrons paying the transient occupancy tax. If less than 70% occupancy, then a decrease of transient occupancy tax. If developers are confident in these projections, perhaps they would opt to guarantee their projected hotel occupancy taxes. Cupertino Hotels Transient Occupancy Tax Transient Occupancy Tax (TOT) = 2017-2018 $ ? 2016-2017 $ ? 2015-2016$5,852,244 actual 2014-2015$ ? June 20, 2013-2014 $4,590,156 actual First year for 12%Transient Occupancy Tax and Full Operation of Aloft Hotel June 30, 2012-June 30, 2013 $3,769,000 for 5 hotels Aloft Hotel opens December 2012 June 30, 2011-June 30, 2012 $3,112,934 Transient Occupancy Tax 10% > 12% effective January 1, 2012 Increase or decrease, whether increment linked to hotel coming on line, is + or-. Existing Aloft Hotel, open December 2012 Courtyard by Marriott Cupertino Inn > Cupertino Hotel Hilton Garden Inn Cypress (Klimpton) >Juniper(Hilton) Woodcrest at 5415 Stevens Creek Blvd in City of Santa Clara Subtotal = 6 hotels Under construction Residence Inn by Marriott in MainStreet Cupertino City stipulate that if hotel includes 160+ rooms, then developer must provide banquet facility for 400 people. Modified later. Hyatt Place Dining area to provide sales tax revenue Note that Hyatt Place, San Jose closes dining area in evening Subtotal =8 hotels Approved Marina > Hotel Subtotal =9 hotels All proposals include hotel and consequently hotel tax; All proposals have EPS Fiscal Analysis Cupertino Village > GPA > Hotel Goodyear site > GPA >Hotel Oaks > GPA > Hotel Total = 12 hotels = Saturation? City of Cupertino interested in revenues Unfortunately, hotel projects with general plan amendments are generally approved, due to the 2 expectations of high amount of transient occupancy taxes they may generate for the city. The City should question the City's apparent practice of rubber-stamping hotel projects with general plan amendments, i.e. the City should not allow developers to exceed zoning regulations and/or general plans or specific plans, such as the Cupertino's Heart of the City Specific P The City should provide for change of ownership of hotels; development agreements involve only the developer. Yet hotel projects proliferate North 40 study Market Study & Business Opportunities Assessment by BAE Urban Economics, August 12, 2011 Hotel Market Assessment Existing Supply page 89 Planned and Proposed Competition page 91 Performance Trends page 93 Market Area =Cupertino, Atherton, Campbell, Menlo Park, Palo Alto, Santa Clara, San Jose, Saratoga, Los Gatos, Los Altos, Los Altos Hills? Cupertino 11 hotels Menlo Park Bohannon Development project Menlo Gateway under construction; "completion by the end of 2017" Gateway of Silicon Valley Marriott's Autograph Collection JW Marriott or Courtyard by Marriott previously projected to be akin to Marriott Renaissance ClubSport in Walnut Creek 230 rooms >250 rooms; May 2015 Generate $1.2 million in hotel taxes Source: by San Jose Mercury News March 9, 2015 Hotel Financing Was Crucial to Getting Larger Project Going by Nathan Donato-Weinstein Silicon Valley Business Journal Page 12 April 1, 2016 Pollock Realty project 1400 EI Camino Real 63 room hotel Subject to public benefit analysis per EI Camino Real/Downtown Specific Plan of July 12, 2012, "confusion over whether the developer was still planning to install a restaurant or meeting rooms at the hotel." "hotel are called out as one recommended (public benefit bonus) option, as such a facility 'generates higher tax taxes for the City...." "...$350 a night in its first year. The hotel is expected to generate about$8.5 million in room taxes in its first 10 years." 3 Source: Plan for Boutique Hotel Advances by Kevin Kelly The Daily News (Palo Alto) Page 9 August 7, 2015 Comment: $8.5 million per year or$8.5 million for 10 year period. Mountain View Under construction San Antonio Center, Phase 2 Hotel 167 rooms Palo Alto Proposed San Antonio site: 744 & 750 San Antonio Road EI Camino & San Antonio Courtyard by Marriott AC Hotel by Marriott "The hotels would add to the "absolute gridlock" on San Antonio Road" Source: Council Warm to Hotel Plan by Jacqueline Lee Palo Alto Daily News Page 6 December 11,2015 Su Hong Restaurant site EI Camino & San Antonio San Bruno Proposed Marriott 152 rooms Projected hotel, property and sales taxes per year. _ $800,000 Total amount in subsidies to be given hotel developer= $3,900,000 City-owned land, purchased in 2012 = $21 per square foot/$ ? in 2015, to developer for$1.00 Waive building and permit fees No transient occupancy taxes for 2 years " City has refused to release the EPS (Economic & Planning Systems) analysis that produced the $3.9 million figure for the subsidy. ....remains incomplete, exempting the document from public records requests." "The city has used a legal maneuver of calling the study a draft so no one can see it, and yet they use the numbers in the study to justify the subsidy." City>financial incentive 3,000 square foot event space for meetings and special occasion After 2 years $800,000 a year in hotel, property and sales taxes. City to sell to the developer for its appraised value of$3.97 million. Referendum Unite Here Local 2 3,000 signatures for referendum on November 2016 OTC to guarantee that workers at the proposed hotel would be able 4 unionize without fear of retaliation Lawsuit Court ruled that action by City of San Bruno was admistrative, not subject to referendum. Santa Clara Related project San Jose Existing Marriott 506 rooms Purchased by CARE Global Investors for$83 million Source: Downtown San Jose Marriott Fetches $83 million by staff writer San Jose Mercury News Page D3 May 21, 2013 Hilton Hyatt Place Closes dining area in evenings Proposed Hotels Residence Inn by Marriott. 147 rooms Fairfield Inn & Suites by Marriott. 114 rooms Marriott AC Hotel Stern &Stevens Creek 5696 Stevens Creek Boulevard Height 85 feet Developer"From an economic development perspective for San Jose, our project would clearly draw tax revenue from Cupertino." Cupertino Mayor: Heart of the City Specific Plan > Density and height Source: Border War: San Jose and Cupertino Internal Affairs by Scott Herhold San Jose Mercury July 30, 2017 1080 South De Anza 90 room hotel South De Anza and Park 86 room hotel Almaden Ranch Shopping Center Southeast corner of Almaden Expressway and Cherry Avenue, next to Highway 85, close to public transit Wyndham 115 rooms 5 Source: New 115-room Hotel Planned in Center by Julia Baum San Jose Mercury News January 15, 2017 Edenvale Highways 85 and 101 Source: New 115-room Hotel Planned in Center by Julia Baum San Jose Mercury News January 15, 2017 North San Jose North San Jose Trimble Road & Orchard Parkway LBA Realty 250-room hotel near Apple's North San Jose campus and Samsung's campus Source: San Jose Industrial Site Eyed for Hotel, Retail, Office by George Avalos San Jose Mercury News August 3, 2017 San Jose Urban Villages Plan 70 Urban Villages Cottle Transit Village Lesson in unmet potential "Despite thousands of new homes in the area, light rail ridership from the Cottle station is actually down about 5 percent from two years ago, according to the Valley Transportation Authority (VTA)." "An elevated walkway drops riders in between the north and southbound lanes of the freeway "VTA officials also accuse Cottle developers of ineffective marketing the station-which developers deny...." Oaks >Westport/Cupertino Transit access to between the north and southbound lanes of freeway 85 Access to thousands of De Anza College students. Terminal for Transit Center "The transit center will provide the basis for a future connection for rapid along State Route 85, 50 onsite parking stalls, and a shuttle drop-off/pick-up area,..." Located at North end of project Included in proposal Construction of Onsite Transit Center Alternative#1 $3.5 million Alternative#2 $3.5 million Transit Center Located in between the north and southbound lanes of 85 freeway Not included in proposal VTA dependent Light rail in median questionable Ridership and Cost River Oaks Transit Village "...developers successfully pitched light rail access to potential tenants. Resident don't face the same 6 access issues, and ridership has grown 20 percent in two years." Source: San Jose's Urban Villages Plan Faces Transportation Obstacles by Chuck Carroll San Jose Inside February 24, 2017 Branham Transit/Urban Village "In March (2017) the VTA asked San Jose officials to amend the city's General Plan so it could develop a 3-acre parcel...." "While the SR 87 corridor study moves forward, VTA is withdrawing the General Plan Amendment application for the property...." Source: VTA Pulls Plan to Build Near Branham Light Rail by Julia Baum San Jose Mercury Page B10 July 23, 2017 Stevens Creek Blvd Urban Village San Jose Needs Traffic Mitigation in Urban Village Plans "...we believe the corridor(Stevens Creek Boulevard) needs significant transit improvements that are lacking in San Jose's current plan." Source: San Jose Needs Traffic Mitigation in Urban Village Plans by Lisa Gillmor, Rod Sinks and Savita Vaidhyanathan San Jose Mercury News August 7, 2017 Sunnyvale Existing Marriott Hotel Proposed 590 West EI Camino Real. 84 rooms Degan Development "...plans to sell the project." No restaurant or bar Business travelers Planning documents > luxury hotel of business hospitality Source: Five-story Hotel Coming to EI Camino Real in Sunnyvale by Victoria Kerza Bay Area News Group June 1, 2017 767 North Mathilda Avenue OTO Development Hilton Garden 238 rooms Source: Sunnyvale: Hilton Garden Hotel Proposed for Mathilda Avenue by Victoria Kezra Bay Area News Group January 20, 2016 830 East EI Camino 7 Huntington Hotel Group Hilton Homewood Suites 130 rooms Source: Sunnyvale: 130-room Hilton Homewood Suites on EI Camino Real Proposed by Victoria Kezra Bay Area News Group May 4, 2016 1250 Lakeside Drive Wittek Development Millennium Hotel 263 rooms Source: Commission Gets Look at Hotel, Housing Project by Victoria Kezra The Sun Page 5 August 26, 2016 Cupertino is in the crosshairs of development... Decreasing future growth and increased competition would limit the amount of hotel taxes going to the City. Currently, it's one of the largest revenue generators for the City Cupertino Sales Tax Sales Tax 2017-2018 $ ? TBD 2016-2017 $ ?TBD June 30, 2015-June 30, 2016 $21,350,056 actual 2014-2015 unavailable June 30, 2013-June 30, 2014 $19,794,036 actual June 30, 2012-June 30, 2013 $18,721,000 actual June 30, 2011-June 30, 2012 $17,326,460 actual Retail Sales Analysis: $799,758,000 2000 $696,060,000 2011 unavailable 2012 unavailable 2013 unavailable 2014 unavailable 2015 unavailable 2016 TBD. 2017 We have ceased our record of businesses leaving Cupertino altho the City of Cupertino continues to publiciize only new businesses. Top 40 Sales Tax Producers Top 40 Sales Tax Producers 3rd Q/2016 1 st Q/2013 Gas Stations Decrease due to Electric Vehicles. Chevron Service Stations Chevron Service Stations Rotten Robbie Service Stations Rotten Robbie Service Stations 8 Shell Service Stations Shell Service Stations Valero Service Stations Union 76 Service Station US Gas Service Station Valero Service Station Grocery Stores. No sales tax on food; sales tax only on non-food Ranch 99 Markets Marina Safeway Ranch 99 Market Whole Foods market Whole Foods Nonexistent as of August 2017 Granite Rock Elephant Bar J. C. Penney closed April 2016 Granite Rock JC Penney closed April 2016 Macy's closed April 5, 2015 Restaurants Alexander's Alexander's Benihana Benihana BJ's BJ's Dynasty Dynasty Lazy Dog Park Place in Cypress Hotel Apple Campus 2 construction related sales tax due to point of sale in Apple Development Agreement: Frener& Reifer Goodfellow Top Grade Construction ? Mitsubishi Consumer Electronic ? Permasteelisa Powersecure ? Rosendin Electric Seele Superior Air Handling Teknion Total amount of sales taxes per quarter should be disclosed for comparison purposes with other quarters; unable to determine trend of sales tax revenues Will restaurant in the Oaks, Cupertino Village or North De Anza sites make the list? Will restaurant in Hyatt Place make the list? Free breakfast; Sales tax ??? State's position on complimentary meals? Marriott "own(s) very few individual hotels." Instead (it) manage(s) or franchise(s its) brand to hundreds of individual owners, often real estate development companies. Those individual hotel owners are responsible for setting nightly room rates." Menlo Park 1300 block of EI Camino Developer"has guaranteed the project will generate at least$83,700 in sales tax revenue in the last eight years of the 10-year development agreement." Source: OK Near for Major EI Camino Project by Kevin Kelly Palo Alto Daily News Page 9 9 January 20, 2017 Comment: Is the $83,700 in sales tax revenue per year or for the 8 years? 280/Wolfe Road Interchange Prop B City of Cupertino and Santa Clara Valley Transportation Authority(VTA) City=$1,200,000 >$1,700,000 Development Agreement for Hyatt Place December 2015 from Cupertino Property Development. $500,000 No indication of 85/Steven Creek Boulevard Interchange Oaks General Plan Amendment Priority Development Area Enables City to obtain funds from State and Federal sources for road maintenance and improvements Cupertino City Council needs to remove priority development areas from the General Plan Source: Danville Council Meeting Housing Plan Foes Sound Off by Jason Sweeney San Jose Mercury Page B1 March 7, 2013 Westport/Oaks is Priority Development Area? Is project AB 343 exempt from CEQA? Traffic mitigation? In our opinion, the General Plan Amendment application for the Oaks Shopping Center/Westport Cupertino should not be authorized to move forward with a General Plan Amendment(GPA) until adequate studies have been completed to determine the need for additional hotel, retail, and office for the City. Since the General Plan Amendment have been authorized for the Hotel at Cupertino Village site and the Hotel at the Good Year Tire store site, it would be desirable to have a completed Hotel Market Study to include Existing Hotels, Planned and Proposed Completion dates, and Hotel Performances as these projects move through Planning Department, the Planning Commission and the City Council as the City may be late in the hotels coming on line. Darrel Lum Resident of Cupertino Member of Concerned Citizens of Cupertino Total Control Panel L09W To: cityclerkOcupertino.org Message Score:40 High(60): Pass 10 From: My Spam Blocking Level:High Medium(75):Pass Low(90):Pass Block this sender Block pacbell.net This message was delivered because the content filter score did not exceed your filter level. i 11 Lauren Sapudar From: Sanjay Sawhney < Sent: Monday,August 14, 2017 2:50 PM To: City Council Subject: When will this madness stop? Dear Cupertino City Council, I am completely outraged at the prospect of new developments at the Cupertino Oaks Shopping Center.As someone who lives within a half mile of the shopping center,I am dismayed at the prospect of more residents,traffic and further overcrowding in the nearby schools(Garden Gate,Lawson,Kennedy and Monta Vista). Given that previous decisions have caused in the bout the chaos in the Main Street and uncertainty about Vallco Mall,I have to seriously question the motives of the council members who vote for this proposal. Why is there such a soft corner for the real estate industry at the expense of total disregard for the concern of the city residents. I hope that the council members unanimously reject the proposal. Thank you. Sanjay Sawhney Total Control Panel Lorin To:citycouncil(a)cupertino.org Message Score: 10 High(60):Pass From: My Spam Blocking Level:High Medium(75): Pass Low(90): Pass Block this sender Block yahoo.com This message was delivered because the content filter score did not exceed your filter level. 1 Lauren Sapudar From: Connie Cunningham < Sent: Monday,August 14, 2017 11:45 AM To: Savita Vaidhyanathan; Rod Sinks; Darcy Paul; Barry Chang; Steven Scharf Subject: Westport Cupertino -- GPAAuth-2017-02, Mixed-use Residential plan Dear Mayor, Vice-Mayor, and Council Members, For the City Council Meeting on August 15: After thinking about the issue of the contractors not paying the construction workers prevailing rates, I am wondering if there is not some way to oversee the project via California's Labor Department or other watchdog. I would love to see more housing come to Cupertino. The newspapers and information from various stakeholders in the economy of our region are very clear that housing is the key factor in keeping people in poverty. We need housing of all kinds, market rate and below-market rate. Your discussions on August 1 showed that the developer had proposed too many houses, but that a smaller number will still add to our housing stock appreciably. Los Gatos North 40 parcel: One person in the recent article in the San Jose Mercury had the opinion that the Los Gatos North 40 parcel will be able to keep the BMR portion of the development because the number of market rate homes that can be built is predicated upon the number of BMR houses that are built. That sounded like a hopeful note in an otherwise contentious land use issue. Note: Quality of the buildings should be carefully watched. BMR homes should be attractive, with all the normal safety components, materials and construction of the homes sold at market rate. All our citizens are important to the vibrancy we want to nurture in our community. Wishing you the very best with your deliberations. Sincerely, Connie Cunningham In my previous email of July 30, I made the statements below in support of the residential plan. I like the Mixed-use Residential Plan for Westport Cupertino. Two basic reasons: 1)We need housing in Cupertino. I urge that we could increase the amount of Below-Market Rate housing from 15%. also. 2) Since there are two other hotels in the planning stage for this 2017 authorization process,plus the other hotels already approved, I think we should focus on getting some other things, like housing,that we need. I do understand that hotels are income generators, but they are no good to us if we build too many of them. Note: Quality of the buildings should be carefully watched. BMR homes should be attractive, with all the normal safety components,materials and construction of the homes sold at market rate. All our citizens are important to the vibrancy we want to nurture in our community. i j 9 Sincerely, Connie Cunningham Total Control Panel Loam To:sscharf(&Wertino.org Remove this sender from my allow list From: You received this message because the sender is on your allow list. 2 Lauren Sapudar From: Punit Jain < Sent: Monday,August 14,2017 3:02 PM To: City Council Subject: Please decline the proposal for Westport Cupertino Both of their proposals are going to lead to overcrowding in our schools and more traffic on our roads. Both these proposals should be denied and a strong message should be sent to the developers that we want sensible growth in Cupertino Thank, Punit Jain. Total Control Panel Loftin To:citycouncilAggpertino.org Message Score: 10 High(60):Pass From: My Spam Blocking Level:High Medium(75):Pass Low(90):Pass Block this sender Block yahoo.com This message was delivered because the content filter score did not exceed your filter level. i I I 1 I Lauren Sapudar From: Jan Stokley < Sent: Tuesday,August 15, 2017 9:56 AM To: Savita Vaidhyanathan; Darcy Paul; Steven Scharf, Barry Chang; Rod Sinks Subject: Re: Comments on the Oaks redevelopment proposals Attachments: City of Cupertino Oaks proposal 8.15.2017.pdf Please substitute this signed copy of my letter of comment on the Oaks proposal for the unsigned copy I sent in my first email. Apologies for the inconvenience. Jan On Tue, Aug 15, 2017 at 9:49 AM, Jan Stokley<jan@housingchoices.org>wrote: Dear Mayor, Vice Mayor, and City Council members, At the August 1, 2017 City Council meeting, we recommended that the developer of the Oaks site be asked to go back to the drawing board and consider development alternatives that would contribute more meaningful to the city's affordable housing need than either of the two proposals submitted to City Council. After seeking input from experienced affordable housing developers, we've concluded that the recommendation with the greatest impact on the city's affordable housing crisis would be the donation of land to an affordable housing developer in the equivalent value of the project's housing impact fees. This is an option that is recommended in the City's BMR ordinance to insure that a diverse range of housing needs are addressed, especially those of people with extremely low-incomes. I have attached a letter that describes this recommendation and includes assumptions used to estimate the land donation that would be generated in lieu of the impact fees under each of the two pending development scenarios. Thank you for your consideration. Jan Stokley Executive Director jan@housingchoices.org Housing direct:408.713.2613 cell; OChoices fax:408.4985242 898 Faulstich Court,Suite B Opening new doors for people with developmental disabifides San Jose.CA 95112 www.housingchoices.org This e-mail message is intended only for the named recipients)above and is covered by the Electronic Communications Privacy Act 18 U.S.C.Section 2510-2521. This e-mail is confidential and may contain information that is privileged or exemptfi•om disclosure under applicable law.If you have received this message in error please immediately notify the sender by return e-mail and delete this e-mail message from your computer. 1 Jan Stokiey Executive Director jan@housingchoices.org Housing direct:408.713.2613 cell: C)Choitces fax:408.498.5242 898 Faulstich Court,Suite B Opening new doom for people with developmental disabilities San Jose,CA 95112 www,housingchoices.org This e-mail message is intended only for the named recipient(s)above and is covered by the Electronic Communications PrivacyAct M U.S.C.Section 2510-2521. This e-mail is confidential and may contain information that is privileged or exempt from disclosure under applicable laiv.If you have received this message in error please immediately notify the sender by return e-mail and delete this e-mail message from your computer. Total Control Panel Login To:sscharRa-ftupertino.org Remove this sender from my allow list From:jan@housingchoices.org You received this message because the sender is on your allow list. 2 Housing Chokes Opening new doors for people with developmental disabilities Mayor and City Council of the City of Cupertino August 15, 2017 Cupertino,California Re: Redevelopment of the"Oaks"site Dear Mayor,Vice Mayor and members of the City Council, Housing Choices is supporting Cupertino residents with developmental disabilities and their families to advocate on behalf of rental housing in Cupertino that is affordable to extremely low-income people. At the August 1, 2017 City Council meeting,we recommended that the City Council direct the developer of the Oaks site to go back to the drawing board and create a proposal that contributed more meaningfully to Cupertino's affordable housing crisis.. The two Oaks proposals include a minimum number of units for"low-income"and"very-low-income" seniors—just the number to avoid triggering a mitigating contribution to the affordable housing fund. The"Oaks"development site is a critical affordable housing opportunity site,recognized as such in the City's Housing Element. Other than a recently approved 19-unit senior housing project,the City of Cupertino currently has no affordable housing for extremely low-income households—indeed Cupertino is one of the few Santa Clara County cities with no affordable housing financed by federal and state low-income housing tax credits. In our meetings with affordable housing developers and City planning staff,we have been told repeatedly that the barrier to creating truly affordable housing in Cupertino has been the unavailability of feasible sites,rather than the lack of affordable housing finance sources.This is borne out by the fact that there have been NO applicants in the two most recent rounds of funding RFPs for use of the funds created by the city's housing impact fees. The City's Below Market Rate(BMR)housing ordinance itself acknowledges than the BIb1R income standards and rent levels do not address the housing needs of the most vulnerable Cupertino residents—those with extremely low-incomes. To serve this unmet housing need,the BMR ordinance calls on die city to pursue the donation of land in lieu of mitigation fees,which would facilitate an affordable housing developer to use local, state and federal financing sources to create housing with some rental units affordable to extremely low-income people, who are otherwise completely excluded from the benefits of the BMR ordinance. We urge that the developer of the Oaks site be asked to consider a development proposal that includes a donation of land to an affordable housing developer,equivalent to the impact fees that would otnerwise be generated by the proposal. in the case of the mixed use scheme without a hotel,this would:=qual an estimated$19.45 million in impact fees,which would support the donation of an estimated two acres of laird to ar,affordable housing developer,assuming land value of$10 million/acre. In the case of the mixed use scheme with a hotel,an estimated$15.44 million in impact fees would support the donation of an estimated 1.5 acres of land. This recommendation would lower the overall density of the Oaks redevelopment,while insuring that housing is created for the entire range of incomes present in the City of Cupertino,partiCilarly those who are most vulnerable. Thank you for your consideration of our recommendation. Si cerely, 'V "` a c#t�-�sto ley Exec tiv Dirp6tpr aneJose Z3ifice Watsonville Office Serv�g Santa Clara and San Benito Counties Serving Santa Cruz and Monterey Counties 898 Faulstich Court, Suite B 349 Main Street, Suite 207 San Jose, CA 95112 Watsonville. CA 95076 Phone 408.498.5777 Phone:831 722.3954 FAX.408.498.5242 www.housingchoices.org 0 FAX 831 722.3956 . � | ;o;}! ` Lit | |5 - : . � : | � !G ! . 3 ::3 ; ! {l|] ! | )«; :�! ] < !< ! | .M :M : i ) lm ;a! ! m:Ln ] � :� : : : .� ,_: ! )/;0! -.3 :--% • : ;� ,� ;_...... .� :� :.. 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I......- .......... __ Lauren Sapudar From: Jean Cohen <jean@local393.org> Sent: Tuesday, August 15, 2017 7:52 AM To: City Council Subject: Agenda Item 16c Attachments: KT Urban Packet.pdf Dear Mayor and Council: Attached is a packet of information regarding KT Urban and their continued support for Iron Mechanical,a contractor accused of several wage theft violations that has performed work on development projects KT Urban has been associated with.Although KT Urban believes it bears no responsibility for Iron Mechanical's behavior,their continued support for a contractor accused of these wage theft transgressions does not align with Cupertino's values. We share your desire to work in collaboration with responsible developers to build thoughtful projects in our communities.The Mechanical Craft unions support your goals to plan and grow wisely as you consider the diverse needs of people that live and work in Cupertino. Sincerely, Jean Cohen Jean Cohen UA Local Union 393-Plumbers,Steamfitters,Pipefitters&HVACR Service Technicians www.ualocal393.org Total Control Panel Law To:citycouncil(&cupertino.org Message Score: 15 High(60):Pass From:jean@local393.org My Spam Blocking Level: High Medium(75):Pass Low(90): Pass Block this sender - Block local393.org This message was delivered because the content filter score did not exceed your filter level. 1 Bill Guthrie PLUMBERS, STEAMFITTERS Business Manager REFRIGERATION FITTERS 6150 Cottle Road �► San Jose,CA 95123 SLCJ� UA LOCAL UNION 393 Ph: 408.225.3030 Fax:408.225.3405 May 17, 2017 Honorable Mayor and City Council City of San Jose 200 East Santa Clara Street San Jose, CA 95110 RE: You May Not Know It, But You Are Subsidizing Wage-Theft Dear Mayor and Council, If you support construction trades workers receiving a family sustainable wage and benefit package, then the rush this past December to approve the downtown hi-rise development tax and fee giveaways was a mistake. If you support the local hiring of veterans and a robust apprenticeship placement program for those seeking employment in the construction trades, then approving the downtown hi-rise development tax and fee giveaways without these requirements was a mistake. If you oppose wage-theft and the exploitation of workers, then you and the City Administration must do a much better job of vetting how San Jose taxpayer dollars are being spent to subsidize developers that end up with companies that have engaged in wage-theft building their projects. There should be a city requirement that developers, construction managers, contractors and sub-contractors that have benefited from city assistance to build their projects not engage in wage-theft or the exploitation of workers. Unfortunately, the development firm owned by Mark and Ken Tersini, KT Urban, continues to support a sub- contractor ub- con rac or working on projec s they are associaTed with,—rroone1Vi chanical; that has been forced to pay workers for wage-theft and is currently facing additional lawsuits for wage-theft.i The lawsuit that Iron Mechanical resolved involved the shafting of construction workers that were not paid for overtime worked and were not provided legally required meal and rest breaks.2 Additional lawsuits allege failure to pay wages and falsification of payroll records.3 4 The documents in this binder chronicle the wage-theft lawsuits against Iron Mechanical. The binder also includes a letter from Ken Tersini, President of KT Urban, advocating strong support for Iron Mechanical. To quote their letter dated February 5, 2016, "In fact, Iron Mechanical has recently been awarded a contract to perforin the HVAC and Hydronics work on the Silvety Towers project."5 It is unfortunate that the city does not ensure that shady contractors do not benefit from taxpayer funded assistance and giveaways. KT Urban's continued advocacy for Iron Mechanical and their demonstrably poor i Tab l: Superior Court of California: Nicklaus Muncy(Plaintiff) v Iron Mechanical, Inc. (Defendants) 2 Tab 2: Declaration of Mark Renner in Support of Joint Motion for Approval of PAGA Settlement Agreement 3 Tab 3: Superior Court of California: Javier Coronado(Plaintiff) v Iron Mechanical, Inc. (Defendants) a Tab 4: Superior Court of California: Jonathan R. Mata(Plaintiff) v Iron Mechanical, Inc. (Defendants) s Tab 5: KT Urban Letter of Support, February 5, 2016 Rudolph Carrasco Jr. Wayd La Pearle Al Gonzalez,Jr. Conrad Pierce Assistant Business Manager Raciness Representative RucinPcc RebrPcentitnvP Raci"PK RPnr^Pntat;iY, record of treating their workers fairly should cause you great concern as you contemplate approval of their Greyhound Residential Project at next week's city council meeting. Either San Jose leaders are opposed to the exploitation of workers or not. It's time to find out. Sincerely, Bill Guthrie Business Manager CC: Gerald Pfeiffer,IBEW Local 332 Business Manager Rick Werner, SMART Local 104 Business Manager Stan Smith, UA Local 483 Business Manager Page 2 of 2 KT URBAN February 5, 2016 Reference Letter for Iron Mechanical, Inc. To Whom It May Concern: I write this letter of reference for Iron Mechanical, Inc. with great pleasure. Iron Mechanical provided the HVAC and Plumbing systems for all of the residential units and common areas on our recent One South Market high-rise project in Downtown San Jose, California. We were very impressed with Iron Mechanical's professionalism, quality and commitment to this project. The team was well-organized and proactive in providing cost, budget, and schedule control. I believe Iron Mechanical to be a very capable HVAC and Plumbing service provider, and would recommend Iron Mechanical's team for future work up to, and above this project value. In fact, Iron Mechanical has recently been awarded a contract to perform the HVAC and Hydronics work on the Silvery Towers project. I'm looking forward to working with their team on this project. Sincerely, Ken Tersini, President KT Urban 21710 Stevens Creek Boulevard,Suite 200 1 Cupertino,California 95014 Office:408.2572100 Fax:408.255.8620 www.kturban.com 1Dp`R Dl 1 TOMAS E. MARGAIN, Bar No. 193555 HUY TRAN,Bar No. 288196 J�N?6 2 JUSTICE AT WORK LAW GROUP,LLP 1011 84 West Santa Clara Street, Suite 790 Ct fi,.,,• 3 San Jose,CA 95113 `.r`rr COURT Telephone: (408)317-1100 ` '�!' :.- ,'!ur7T OF C4 r, 4 Facsimile: (408)351-0105 - _ _ �,1 Ci, Tomas@JAWLawGroup.com - PITY 5 Huy@JAWLawGroup.com aGatie 6 Attorneys for Plaintiff JONATHAN R. MATA G A4 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF SANTA CLARA 9 17CV305641 10 JONATHAN R.MATA, on his own behalf Case No. and in the interest of the general public, 11 COMPLAINT Plaintiff, 12 1. Failure To Pay Overtime And For All Hours V. Worked(Cal. Labor Code §§510, 1194, 1771 13 IRON MECHANICAL, INC. and DOES 1- & 1774); 25,inclusive, 2. Failure To Pay At Least Minimum Wage For 14 All Hours Worked and Liquidated Damages 1S Defendants. (Cal.Labor Code §§ 1194&1194.2); 3. Waiting Time Penalties(Cal. Labor Code § 16 203); and 4. Restitution For Unfair Business Practices(Cal. 17 Bus.&Prof.Code§§ 17200 el seq.). 18 NATURE OF THE CASE 19 1. This is a wage theft case. Plaintiff JONATHAN R. MATA(hereinafter referred to as 20 "Plaintiff')worked as a construction worker for IRON MECHANICAL,INC. and DOES 1-25 at the 21 construction project called One South Market in San Jose. Plaintiff MATA,a San Jose resident, was 22 a Sheet Metal worker who worked with crews employed by IRON MECHANICAL,INC.that traveled 23 from Sacramento and other parts of the Central Valley to San Jose to perform work. This was done 24 by Iron Mechanical,Inc.to take advantage of the lower pay out of area workers were willing to receive 25 to perform sophisticated plumbing and sheet metal work. The out of town construction workers, 26 including MATA's supervisors,wanted to work long hours Monday through Thursday and either leave 27 early on Fridays or take that day off to have a four-day work week or avoid Friday traffic back to their 28 homes. Because of this,IRON MECHANICAL,INC.and employees who supervised PlaintiffMATA 1 COMPLAINT I came up with a scheme,ratified by IRON MECHANICAL,INC.,where workers would work nine(9) 2 or ten (10) hours Monday through Thursday and either take Friday off or work until lunch time. 3 Despite the actual work schedule, Defendants had workers, including Plaintiff MATH, fabricate time 4 records showing 8-hours days Monday through Fridays to not pay overtime wages and for all hours 5 worked. This scheme also resulted in all hours worked not being paid as at times workers would work 6 more than 10 hours and were only given credit for 2 banked hours. 7 2. Plaintiff brings claims for earned but unpaid wages under the California Labor Code 8 and the California Business and Professions Code. 9 3. Defendants IRON MECHANICAL, INC. and DOES 1-25, inclusive, are collectively 10 identified and referred to as DEFENDANTS. As described below,these individuals and entities hired, 11 employed, and benefited from Plaintiff's labor so that they are responsible in whole or in part for the I2 claims made. 13 4. DEFENDANTS' policies and practices violate California Industrial Welfare 14 Commission ("IWC") Order 16-2001; California Code of Regulations, Title 8, Chapter 5, § 11070; 15 California Labor Code §§200,201,202,204,210,221,226,226.7,351,450,510,512,and 1194;and 16 California Business and Professions Code §§ 17200 et seq. (the"Unfair Business Practices Act"). 17 5. Plaintiffs claims can be summarized as follows: 18 a. Failure to Pay for All Hours Worked -Overtime: When Plaintiff worked more 19 than 8 hours in a day, DEFENDANTS did not pay him his wages for all hours worked and at the 20 overtime rate of pay. This was done based on an agreement where workers would work longer hours 21 Monday through Thursday,at the regular rate, and then work a few hours on Fridays. 22 b. Failure to Pay for All Hours Worked—Minimum Waee: When Plaintiff worked 23 more than 8 hours in a day or 40 hours in a week, DEFENDANTS did not pay him his wages for all 24 hours worked at minimum wage as the hour banking system resulted in hours worked not being paid. 25 C. Unfair Business Practice Act Claim: Plaintiff brings a claim under the UCA, 26 California Business and Professions Code §§ 17200 et seq., for the above and aforementioned unfair, 27 unlawful and fraudulent acts over a four year statue of limitations. 28 2 COMPLAINT I d. Plaintiff seeks compensation for all uncompensated work, liquidated and/or 2 other damages as permitted by applicable law,punitive damages, as well as attorneys' fees,penalties, 3 interest and costs for the above. 4 JURISDICTION AND VENUE 5 6. This Court has jurisdiction over Plaintiff's claims pursuant to California Labor Code 6 §§218 and 1194. 7 7. The Court has jurisdiction over Plaintiff's claims for restitution of ill-gotten benefits 8 arising from DEFENDANTS' unlawful business acts and practices under California Business and 9 Professions Code §§ 17203 and 17204. 10 8. Venue as to DEFENDANTS is proper in this County because DEFENDANTS conduct I1 business,employed Plaintiff,and have a physical workplace in this County,and the events complained 12 of herein occurred in this County. 13 PARTIES TO THE ACTION 14 9. Plaintiff JONATHAN R.N ATA was,and at all relevant times herein is,an individual IS over the age of eighteen and resident of California and employed by Defendants within the statute of 16 limitations in this action. 17 10. Plaintiff is informed and believes and therefore alleges that at all times mentioned 18 herein, Defendant IRON MECHANICAL, INC. is an individual and employer of Plaintiff. 19 11. The true names and capacities, whether individual, corporate, associate or otherwise, 20 and the true involvement of defendants sued herein as DOES 1 through 25, inclusive,are unknown to 21 Plaintiff who therefore sues said defendants by such fictitious names and will amend this Complaint 22 to show the true names, capacities and involvement when ascertained. Plaintiff is informed and 23 believes and thereon alleges that each of the defendants designated as a DOE is responsible in some 24 manner for the events and happenings herein referred to, and that Plaintiffs injuries and damages as 25 hereinafter set forth were proximately caused by said Defendants. 26 12. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, 27 each of the Defendants sued herein was the agent and/or employee of each of the remaining 28 3 COMPLAINT 1 Defendants, and each of them, was at all times acting within the purpose and scope of such agency 2 and employment. 3 4 GENERAL ALLEGATIONS 5 13. DEFENDANTS employed Plaintiff JONATHAN R. MATA at all relevant times 6 within the statute of limitations for this action. 7 14. Plaintiff was an employee of DEFENDANTS working as a construction worker, 8 primarily Sheet Metal HVAC worker, at the One South Market Construction Project. 9 15. During the course of the PIaintiff's employment with DEFENDANTS, Plaintiff 10 regularly worked in excess of 8 hours per day and at times more than 40 hours per week. 11 16. DEFENDANTS failed to pay Plaintiff at least minimum wage for all hours worked. 12 DEFENDANTS also did not properly pay all overtime wages due and owing to Plaintiff. The 13 underpayment was accomplished by a scheme wherein workers would work 9 or 10 hours,if not more, 14 Monday through Thursday to take Fridays off or work only a half day on Fridays. However,overtime 15 wages after 8-hours were not paid. Also,time records wee fabricated. 16 17. Said failure in not paying overtime wages when due and owing was willful and 17 intentional for purposes of waiting time penalties under California Labor Code § 203. 18 FIRST CAUSE OF ACTION 19 Violation of California Labor Code§§510, 218.5, 1194, 1197, 20 Failure to Properly Pay Overtime Wages and For All Hours Worked Against All Defendants 21 18. Plaintiff re-alleges and incorporates the allegations of each preceding paragraph as if 22 fully stated herein. 23 19. At all times mentioned herein,DEFENDANTS were subject to the overtime wage laws 24 of the State of California pursuant to California Labor Code § 510, regarding work undertaken for 25 DEFENDANTS. Pursuant to California Labor Code § 510, DEFENDANTS had a duty to pay their 26 employees, including Plaintiff, no less than the one-and-one-half times his contractually agreed upon 27 regular rate of pay for all hours worked in excess of 8 hours a day and 40 hours a week. Under 28 4 COMPLAINT I California Labor Code §§ 218.5 and 1194, Plaintiff is entitled to be paid overtime wages and has 2 standing to sue for such violations. 3 20. Pursuant to California Labor Code § 1194, Plaintiff seeks as earned but unpaid 4 overtime wages and wages for all hours worked at ane-and-a-half times the regular rate for hours 5 worked in excess of 8 hours a day or 40 hours a week. PIaintiff is entitled to and therefore requests 6 an award of pre judgment interest on the unpaid wages set forth herein. 7 21. As a result of DEFENDANTS' violations of statutory duties, as more fully set forth 8 above, Plaintiff earned but was not paid wages in an amount above the jurisdictional limits of this 9 court. 10 22. Plaintiff is entitled to and therefore requests an award of pre judgment interest on the 11 unpaid wages set forth herein. 12 23. Plaintiff has incurred, and will continue to incur, attorneys' fees in the prosecution of 13 this action and therefore demands such reasonable attorneys'fees and costs as set by the court pursuant 14 to California Labor Code § 1194. 15 SECOND CAUSE OF ACTION 16 Violation of California Labor Code§1194.2 17 Failure To Pay At Least Minimum Wage For All Hours Worked Against All Defendants 18 24. Plaintiff re-alleges and incorporates the allegations of each preceding paragraph as if 19 fully stated herein. 20 25. At all times mentioned herein, DEFENDANTS were subject to the minimum wage 21 laws of the State of California pursuant to California Labor Code §§ 1194 and 1194.2. Pursuant to 22 California Labor Code § 1194,DEFENDANTS had a duty to pay their employees,including Plaintiff, 23 no less than the minimum wage for all hours worked. Under California Labor Code § 1194, Plaintiff 24 is entitled to be paid minimum wages and has standing to sue for such violations. 25 26. Pursuant to California Labor Code §§ 1194 and 1194.2, Plaintiff seeks unpaid 26 minimum wages and penalties for the failure to pay minimum wages. 27 28 5 COMPLAINT 1 27. Plaintiff has incurred, and will continue to incur, attorneys' fees in the prosecution of Z this action and therefore demands such reasonable attorneys' fees and costs as set by the court pursuant 3 to California Labor Code § 1194. 4 THIRD CAUSE OF ACTION 5 Violation of California Labor Code§203 6 Wailing Time Penalties Against All Defendants 7 45. Plaintiff re-alleges and incorporates the allegations of each preceding paragraph as if fully 8 stated herein. 9 46. California Labor Code § 201(a)requires an employer who discharges an employee to pay the 10 employee immediately upon discharge. 11 47. California Labor Code § 202(a) requires an employer to pay compensation due and owing to 12 an employee who has quit or resigned within seventy-two (72) hours of that the time at which the 13 employee provided notice of his intention to quit or resign. 14 48. California Labor Code § 203 provides that if an employer willfully fails to pay compensation 15 promptly upon discharge or resignation,as required under California Labor Code§§201 and 202,then 16 the employer is liable for waiting time penalties in the form of continued compensation for up to thirty 17 (30)work days. 18 49. Plaintiff is entitled to unpaid compensation for all hours worked at the legally mandated rates, 19 but for which he has not yet been paid, including overtime wages. 20 50. Plaintiff has left the employ DEFENDANTS, but has not yet been fully compensated for the 21 hours that he worked. 22 51. DEFENDANTS have willfully failed and refused to make timely payment of wages to 23 Plaintiff. 24 52. As a direct and proximate result of DEFENDANTS' alleged conduct, DEFENDANTS are 25 liable to Plaintiff for up to thirty(30)days of waiting time penalties pursuant to California Labor Code 26 § 203. 27 SEVENTH CAUSE OF ACTION 28 Violation of California Business&Professions Code§§17200 et seq. 6 COMPLAINT 1 Restitution for Unfair Business Practices Against All Defendants 2 53. Plaintiff re-alleges and incorporates the allegations of each preceding paragraph as if fully 3 stated herein. 4 54. At all times relevant herein, Plaintiffs employment with DEFENDANTS was subject to the 5 California Labor Code and IWC Wage Order 5-2001, which required all employees to be paid at an 6 overtime rate for work performed in excess of 40 hours per week or 8 hours per day. 7 55. At all times relevant herein, DEFENDANTS were subject to the California Unfair Trade 8 Practice Act, Bus. & Prof. Code §§ 17000 et seq. DEFENDANTS failed to pay Plaintiff overtime 9 rate for his overtime hours, as required by California law. Plaintiff and other members of the general 10 public employed by DEFENDANTS were entitled to those wages, which DEFENDANTS kept to 11 themselves. It also calls for rest breaks to be scheduled, which changes a business' staffing levels 12 and gave DEFENDANTS an economic advantage over law-abiding businesses. 13 56. In doing so, DEFENDANTS engaged in unfair competition by committing acts prohibited by 14 the California Labor Code and IWC Wage Order 5-2001. Such acts gave DEFENDANTS a 15 competitive advantage over other employers who were in compliance with the law. 16 57. As a direct and proximate result of DEFENDANTS' violations and failure to pay the required 17 wages and overtime pay, Plaintiffs rights under the law were violated, and he suffered general 18 damages in the form of unpaid wages in an amount to be proved at trial. 19 58. DEFENDANTS have been aware of the existence and requirements of the Unfair Trade 20 Practice Act and the requirements of the California Labor Code and IWC Wage Order 5-2001, but 21 knowingly,willfully,and intentionally failed to pay Plaintiff and other members of the general public 22 employed by them overtime pay. 23 59. Plaintiff and other members of the general public employed by DEFENDANTS can and will 24 comply with the requirements and standards to the extent required by law to prosecute this violation 25 as a representative action under the Unfair Trade Practice Act. 26 27 28 7 COMPLAINT 0 0 l 60. Plaintiff and other members of the general public employed by DEFENDANTS have been 2 illegally deprived of their overtime pay and herein seek restitution of those wages pursuant to 3 California Business and Professions Code § 17203. 4 5 6 PRAYER FOR RELIEF 7 WHEREFORE, Plaintiff prays for relief as follows: 8 a. For an order awarding Plaintiff compensatory damages for all wages earned but not 9 paid, and all overtime wages earned and not paid, in the amount to be proven at trial; 10 b. For earned but unpaid wages as equitable relief under the Unfair Competition Act over ll a 4-year statute of limitations; 12 C. For prejudgment interest of 10% on the unpaid overtime compensation under 13 California Labor Code §§ I I94(a); 14 d. For"waiting time"penalties under California Labor Code § 203; IS e. For an award of reasonable attorneys' fees, as provided by California Labor Code §§ 16 218.5,226(e), and 1194, and/or other applicable law; 17 f. For costs of suit herein; 18 g. For such other and further relief as the Court may deem appropriate. 19 20 Dated: January 25, 2017 21 A4 , 22To s E. rain y Tran 23 JUSTICE WORK LAW GROUP Attorneys for Plaintiff 24 25 26 27 28 8 COMPLAINT roo,\ !'r, 1 TOMAS E.MARGAIN,Bar No. 193555 HUY TRAN, Bar No.288196 2 84 W.SANTA CLARA St. SUITE 790 SAN JOSE CA 95113 �QIE S�° — I ' P I 1b Tel.(408)317-1100 Fax. (408)315-0150 Cit:"``.�'• 4 w _. Attorneys for Plaintiff r'` J ��CAQ-iVCal1V N 5 JAVIER CORONADO 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SANTA CLARA 9 UNLIMITED JURISDICTION 10 11 CASE N0. JAVIER CORONADO, I. 6 C V 2 9 9 4 8 3 12 13 COMPLAINT FOR STATUTORY Plaintiff VIOLATIONS,UNPAID WAGES, 14 PENALTIES;RESTITUTION AND EQUITABLE AND INJUNCTIVE RELIEF 15 V. AND ATTORNEYS' FEES FOR: 16 IRON MECHANICAL, INC. and DOES 1 to 1. VIOLATION OF STATUTORY DUTY FOR BREACH OF LABOR CODE§§ 1194, 17 50, 1771 & 1774; 2. LABOR CODE§ 203 PENALTY; 18 Defendants 3. LABOR CODE§ 226 19 4. Bus. &Prof Code § 17200,et seq. 20 I. NATURE OF THE CASE 21 22 1. Now come Plaintiff JAVIER CORONADO(hereinafter referred to as"Plaintiff'); 23 and allege against IRON MECHANICAL,INC. and DOES 1 to 50,Inclusive,violations of the 24 California Labor Code and Business and Professions Code. 25 2. This case involves a construction worker who worked as a plumber almost . 26 exclusively on a multi phased construction project at San Jose State University and was not paid 27 the proper prevailing wage for the work he performed. Plaintiff was paid as a Laborer even 28 COMPLAINT 1 1 though he discharged the duties of a plumber which earns a higher corresponding prevailing 2 wage rate. 3 3. .Defendants IRON MECHANICAL,INC., and DOES 1 through 50 are collectively 4 identified and referred to as the IRON MECHANICAL DEFENDANTS. As described below 5 these individuals and entities hired,employed and benefited from the labor of PLAINTIFF, that 6 they are responsible in whole or in part for the claims made. 7 II. JURISDICTION 8 9 4. Plaintiff brings this action against Defendants pursuant to California Labor Code 10 §§200,201,202,203,203.1,203.5,218,218.5,226,226.7 1194, 1194.2, 1771, and 1174 and 11 Industrial Welfare Commission("IWC")Wage Order 16-2001. III. VENUE 12 13 5. Venue lies in Santa Clara County because the construction projects at issue is in 14 the County of Santa Clara. Defendants' liability also arises pursuant to the Defendants' 15 employment of Plaintiff in the County of Santa Clara. 16 IV. PARTIES TO THE ACTION 17 6. Plaintiff JAVIER CORONADO,was and at all relevant times herein is, an 18 individual over the age of eighteen and residents of California. 19 7. Plaintiff is informed and believe and therefore allege, that at all times mentioned 20 herein IRON MECHANICAL DEFENDANTS were individuals,corporations,or other entities 21 authorized to conduct business in the State of California,doing business as a contractor and or 22 sub-contractor on Public Works Construction projects throughout California. 23 &. Plaintiff is informed and believe and therefore allege that IRON MECHANICAL 24 DEFENDANTS employed them Plaintiffs as construction workers. 25 9. PIaintiff is informed and believe and therefore allege that at all times herein 26 mentioned, defendants DOES 1 through 50,and each of them,were at all relevant times herein 27 the agents, servants and/or employees of each and every group of defendants, and that all acts 28 COMPLAINT 2 1 and omissions herein complained of were performed within the course and scope of said 2 employment,service and/or agency and with the consent of each of the defendants. All actions 3 of each defendant herein alleged were ratified and approved by the directors,officers or 4 managing agents of defendants. S 10. The true names and capacities,whether individual, corporate,associate or 6 otherwise of defendant DOES 1 through 50,inclusive, are unknown to Plaintiff who therefore 7 sue said defendants by such fictitious names.Plaintiff will seek leave of court to amend this 8 Complaint to show their true names and capacities when the same have been ascertained 9 pursuant to Code Civil Procedure section 474. 10 Il V. GENERAL ALLEGATIONS 12 13 11. IRON MECHANICAL DEFENDANTS employed Plaintiff at various times within 14 the statute of limitations in this action on a multi phased Public Works Construction Project at 15 San Jose State University. While employed, Plaintiff worked as a plumber with a crew of 2 or 3 16 other plumbers. He performed the same type of work as these co-workers, used the same 17 plumber tools,and generally assisted in the building of copper, cast iron and other piping 18 systems. 19 12. IRON MECHANICAL DEFENDANTS did not compensate Plaintiff as a Plumber 20 as determined by the Scope of Work and prevailing wage rates as published by the State of 21 California Department of Industrial Relations. 22 13. The wages stubs Plaintiff received listed a lower corresponding wage rate and did 23 not list all wages and fringe benefits due and owing to a plumber on public works construction. 24 VI. FIRST CAUSE OF ACTION 25 VIOLATION OF STATUTORY DUTY FOR BREACH OF 26 LABOR CODE§§218,5, 1194, 119.4.2, 1771 & 1774 27 14. Plaintiff incorporates by reference as though fully set forth herein each of the 28 COMPLAINT 3 1 allegations of Paragraphs 1 through 13. 2 3 15. At all times mentioned herein,IRON MECHANICAL DEFENDANTS,and each of them,were subject to the minimum wage requirements of the State of California pursuant to 4 Labor Code§ 1194 and §218,5 and prevailing wage laws of the State of California. Pursuant 5 to Labor Code§1194 defendants had a duty to pay their employees, including Plaintiff not less 6 than the minimum required hourly rate of pay including prevailing wages. 7 16. At all times mentioned herein, defendants were subject to the prevailing wage laws 8 of the State of California pursuant to Labor Code §§ 1771,regarding work undertaken on public 9 construction projects,including work undertaken on the projects listed above. Pursuant to 10 Labor Code§§ 1771 IRON MECHANICAL DEFENDANTS had a duty to pay their employees 11 on such projects,including Plaintiff, not less than the general prevailing rate of per diem wages 12 for work of a similar character in the locality in which the public work is performed, and not 13 less than the general prevailing rate of per diem wages for holiday and overtime work. 14 17. At all times mentioned herein,IRON MECHANICAL DEFENDANTS,and each 15 of them,were subject to the prevailing wage laws of the State of California pursuant to Labor 16 Code§§ 1774, regarding work undertaken on public construction projects. Pursuant to Labor 17 Code§§ 1774, IRON MECHANICAL DEFENDANTS,and each of them, had a duty to pay 18 their employees on such projects, including Plaintiff,not less than the specific prevailing rates 19 of wages to all workmen employed in the execution of the contract of the PROJECTS. 20 18. Plaintiff is informed and believes and based thereon contends that the per diem 21 wages and prevailing wages required to be paid pursuant to Labor Code§§ 1194, 1771 and 1774 22 are set forth in annual and semi-annual bulletins published by the California Department of 23 Industrial Relations. 24 19. Plaintiff is informed and believes and based thereon contends that said defendants, 25 and each of them,violated Labor Code§§ 1194, 1194.2, 1771 and 1774,specifically by failing 26 and refusing to comply with the statutory duty to pay Plaintiff prevailing wages as required by the 27 contracts and by statute,or ensure that Plaintiff is paid prevailing wages as required by the 28 contracts and by statute. COMPLAINT 4 1 20. As a result of IRON MECHANICAL DEFENDANTS violations of statutory 2 duties,as more fully set forth above,Plaintiff's earned but were not paid wages in an amount 3 above the jurisdictional limits of this court. 4 21. Plaintiff seeks as earned but were not paid wages the difference between the 5 amount actually paid and the prevailing wage rate as determined by the Director of Industrial G Relations. Plaintiff's audits and investigations are continuing,however, the amounts claimed are 7 above the jurisdictional minimum requirements of this court. Plaintiffs will seek leave of court 8 to amend this Complaint according to proof at the time of trial. 9 22. Plaintiff is entitled to and therefore request an award of pre judgment interest on 10 the unpaid wages set forth herein. 11 23. Plaintiffs have incurred,and will continue to incur, attorneys'fees in the 12 prosecution of this action and therefore demand such reasonable attorneys' fees and costs as set 13 by the court. 14 VII. SECOND CAUSE OF ACTION 15 LABOR CODE§203 PENALTIES IG 17 24. Plaintiff incorporates by reference as though fully set forth herein each of the 13 allegations of Paragraphs 1 through 23. 19 25. Plaintiff is a former employees of IRON MECHANICAL DEFENDANTS,who 20 were discharged or quit. Plaintiff is informed and believes and based thereon alleges that 21 defendants owed unpaid wages at the conclusion of his employment. 22 42. Plaintiffs are informed and believe and based thereon allege that they submitted 23 claims for wages now due on the PROJECTS. 24 43. Plaintiffs is informed and believes and based thereon alleges that within the last 25 four years IRON MECHANICAL DEFENDANTS, inclusive,and each of them,willfully failed 26 to pay Plaintiffs claims for compensation due to them as set forth above,and as required by 27 Labor Code§201 and §202. Under Labor Code§ 203,IRON MECHANICAL DEFENDANTS, 28 COMPLAINT 5 I and each of them, are liable to Plaintiff for a penalty of thirty-day wage at the legally required 2 • prevailing wage rate. 3 44. Plaintiff has incurred, and will continue to incur,attorneys' fees in the prosecution ¢ of this action and therefore demand such reasonable attorneys' fees and costs as set by the court. 5 6 VIII. THIRD CAUSE OF ACTION 7 California Labor Code§.226 Wage Stubs and Record Keeping 8 9 45. Plaintiff re-alleges and incorporates the allegations of paragraphs 1-42 as if fully 10 stated herein. 11 46. At all times relevant hereto,Defendants were subject to the provisions of 12 California Labor Code §§ 226, which requires an employer to provide each employee with 1 I written periodic wage payment setting forth,among other things, the dates of labor for which 14 payment of wages is made, the total hours of work for the pay period, the gross and net wages 15 paid,all deductions from those wages, and the name and address of the employer. 16 47. Defendants knowingly and intentionally failed to provide Plaintiff,with accurate, 17 itemized wage statements in compliance with Labor Code§226. Such failures in Defendants 18 itemized wage statemeiits including, among other things,not accurately showing the correct 19 prevailing wage that impacted the gross wages such that in each pay period the wage stubs listed 20 the incorrectly reporting gross wages earned. 21 48. As a direct result of Defendants' conduct, Plaintiff was never provided with 22 accurate paystubs.The Plaintiff is entitled to recover an amount to be proved at trial for actual 23 damages, including that measured by the unpaid wages,of not less than$50.00 for an initial 24 violation and$100.00 for a subsequent for each violation up to$4,000.00. 25 49. Plaintiff has incurred, and will continue to incur attorney fees in the prosecution 26 of this action. 27 FIURTH CAUSE OF ACTION 28 Violation of California Business&Professions Code§17200 COMPLAINT 6 I t / -\ 1 r 1 Restitution for Unfair Business Practices 2 50. PLAINTIFF re-alleges and incorporates the above paragraphs as if fully stated 3 herein. 4 51. At all times relevant herein,PLAINTIFF'S employment with DEFENDANTS was 5 subject to California Labor Code and applicable Wage Orders promulgated by the California 6 7 Industrial Welfare Commission,which required all employees to be paid the proper prevailing g wages on public works construction. 9 52. In not paying the proper prevailing wage,DEFENDANTS violated California 10 Unfair Trade Practices Act,Business and Professions Code§17200,et seq.by committing acts 11 prohibited by applicable California Labor Code provisions,IWC Wage Orders,which were 12 "unfair,unlawful and fraudulent",and thus giving them a competitive advantage over other 13 14 employers and businesses with whom DEFENDANTS were in competition and who were in 15 compliance with the law. 16 53. As a direct and proximate result of DEFENDANTS' violations and failure to pay 17 the required minimum prevailing wages PLAINTIFF'S rights under the law were violated and 18 the PLAINTIFF suffered unpaid wages in amount to be proved at trial. 19 54. DEFENDANTS have been aware of the existence and requirements of the Unfair 20 Trade Practices Act and the requirements of state and federal wage and hour laws,but willfully; 21 22 knowingly, and intentionally failed to pay PLAINTIFF prevailing wages. 55. PLAINTIFF having been illegally deprived of the prevailing wage pay to which he 24 was legally entitled,herein seek restitution of such unpaid wages pursuant to Business and 25 Professions Code§17200,et seq.. This includes an extension to the statute of limitations to four 26 years. 27 X. ATTORNEY FEES AND COSTS 28 COMPLAINT 7 1 2 56. Enforcement of statutory provisions enacted to protect workers and to ensure proper and prompt payment of wages due to employees is a fundamental public interest in California. Consequently, Plaintiff's success in this action will result in the enforcement of 4 5 important rights affecting the public interest and will confer a significant benefit upon the 6 general public. Private enforcement of the rights enumerated herein is necessary as no public agency has pursued enforcement. Plaintiff is incurring a financial burden in pursuing this action 7 8 and it would be against the interest of justice to require the payment of any attorney's fees and costs from any recovery that might be obtained herein. As prayed for below,Plaintiff and his 9 10 counsel are entitled to and seek an award of attorneys'fees and costs pursuant law including but 11 not limited to Labor Code§§ 1194,218.5, 1194.2 and other applicable laws. 12 XI. PRAYER FOR RELIEF 13 WHEREFORE, Plaintiffs pray for relief as follows: 14 1. For damages for unpaid compensation according to proof at trial measured 15 as the difference between the prevailing wage rate and the wages paid to Plaintiffs; 16 2. For General Damages and Special Damages as allowed by law; 17 3. For pre judgment and post judgment interest at the maximum legal rate; 18 4. For penalties pursuant to Labor Code§203; 19 5. For penalties pursuant to Labor Code§ 226; 20 6. For equitable, injunctive or restitution under the Unfair Competition Act 21 including an extension of the State of Limitation to Four years. 22 7. For an award of reasonable attorney fees and costs of suit; 23 8. For any and all penalties allowable by law for the alleged conduct;and 24 9. For such other and further relief as the court may deem proper. 25 Dated: September 1,2016 . 26 13y: 27 Tomas E.Margain Attorneys for Plaintiff 28 COMPLAINT 8 1 BARBARA A. COTTER, ESQ. (SBN 142590) LISA V.RYAN, ESQ. (SBN 217802) 2 COOK BROWN, LLP 555 CAPITOL MALL, SUITE 425 3 SACRAMENTO, CALIFORNIA 95814 (�NDOR vt� T: 916.442.3100 1 F: 916.442.4227 . Attorneys for Defendant IRON MECHANICAL,INC. 6 MARK S. RENNER, ESQ. (SBN 121008) WYLIE, MCBRIDE,PLATTEN &RENNER y 7 2125 CANOAS GARDEN AVENUE, #120 cv' w , '^' a S Qn.ops;t SAN JOSE, CA 95125 s T: 408.979.2920 1 F: 408.979.2934 9 Attorneys for Plaintiff NICKLAUS MUNCY 10 11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF SANTA CLARA 13 14 NICKLAUS MUNCY, I Case No. 115 CV 280897 15 ( [PROP94DI ORDER 1REGARDING Plaintiff, APPROVAL OF PRIVATE ATTORNEYS 16 V. GENERAL ACT SETTLEMENT 17 IRON MECHANICAL, INC., a California Date: September 22, 2016 Corporation, Time: 9:00 a.m. 18 Dept: 9 19 Defendant. Judge: Hon. Mary E. Anand Action Filed: May 20, 2015 20 Trial Set: August 8,2016 21 22 WHEREAS the claims in this lawsuit arise under the Private Attorneys General Act 23 of 2004 ("PAGA"); and 24 WHEREAS, after mediating this matter with respected Bay Area mediator 25 Martin Dodd, the parties reached a settlement in full, conditioned upon this Court's 26 approval; and 27 WHEREAS, under PAGA, the Superior Court shall review and approve any 28 proposed PAGA settlement agreement; and [PROPOSED] ORDER REGARDING APPROVAL OF PAGA SETTLEMENT 0:194452\9558\Pld\MFA-Proposed Order-HnaLdocx 1 I WHEREAS, after reviewing the parties' Private Attorneys General Act Settlement 2 Agreement and Release ("Agreement"), the Joint Motion in Support of Approval of PAGA 3 settlement; and' the Declaration of Mark Renner in support of same, the Court has 4 determined that the settlement is reasonable and the settlement terms should be approved; 5 and 6 WHEREAS, the parties have notified the Labor and Workforce Development 7 Agency of this settlement in compliance with Labor Code section 2699.3. 8 The Court, therefore, rules'as follows: 9 1. The parties' Agreement is approved; 10 2. The parties shall appoint a mutually satisfactory settlement administrator; 11 3. The settlement should be funded as provided under the parties' Agreement, 12 4. The proposed notice of settlement is adequate; Iron Mechanical employees 13 entitled to payment under the settlement will receive reasonable notice as set forth in this 14 motion; 15 5. Iron Mechanical employees who elect not to participate in the settlement will 16 be afforded the opportunity to exclude themselves form the settlement, as set forth in this 17 motion; 18 6. The settlement administrator will distribute the settlement proceeds as set 19 forth in the parties' Agreement. 20 7. Payment of attorney's fees in the amount of 56,000.00 and costs in the amount 21 of $13,363.48 will be made to the law firm of Wylie, McBride, Platten & Renner, from the 22 settlement proceeds at the same time the employee payments are made; 23 8. The parties will report to this Court within ninety days after the settlement 24 proceeds are fully distributed; and 25 26 27 28 [PROPOSED]ORDER REGARDING APPROVAL OF PAGA SETTLEMENT O:\94452N9558\P1d\WA-Proposed Order-final.docx 2 1 9. Upon approval of the final report, dismissal with prejudice and/or judgment 2 will be entered in accordance with the terms of the Agreement. 3 4 DATED: 5 Mary E. Arend 6 THE HONORABLE MARRY E. ARAND JUDGE OF THE SUPERIOR COURT 7 8 9 10 11 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED]ORDER REGARDING APPROVAL OF PAGA SETTLEMENT O:\94452\9558\Pld\WA-Proposed Order-finaldo" 3 1 MARK S. RENNER- 121008 WYLIE, McBRIDE,PLATTEN&RENNER 2 2125 Canoas Garden Avenue, Suite 120 �1 San Jose, California 95125 116 3 Telephone: (408)979-2920 23 < Facsimile: (408) 979-2934 - r : 4 r�r►►� Attorneys for Plaintiff 5 NICKLAUS MUNCY 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SANTA CLARA 10 11 NICKLAUS MUNCY, Case No. 115-CV-280897 12 Plaintiff DECLARATION OF MARK RENNER IN VS. SUPPORT OF JOINT MOTION FOR 13 APPROVAL OF PAGA SETTLEMENT IRON MECHANICAL INC., a California AGREEMENT 14 corporation, Date: September 22, 2016 15 Defendant. Time: 9:00 a.m. Dept. 9 16 Judge: Hon. Mary E. Arand 17 18 I, Mark Renner, declare: 19 1. I am counsel for Plaintiff in the above-entitled matter. I make this declaration in support 20 of the parties'joint Motion for Approval of Private Attorneys General Act Settlement Agreement. If 21 called upon to testify as to the matters stated herein, I would and could do so from my own personal 22 knowledge. 23 2. This case was brought by Plaintiff under the California Private Attorneys General Act, 24 Labor Code § 2699 et seq. The claim was for four different causes of action on behalf of the 25 Plaintiff individually, and on behalf of similarly aggrieved employees and former employees of the 26 Defendant-employer. There were 3 types of claims plead: for unpaid overtime premium, claims for 27 unpaid rest and meal breaks, and a claim for unpaid penalties for failure to submit a full and final 28 paycheck (under Labor Code §203). These causes of action involved, in addition to unpaid wages, DECLARATION OF MARK RENNER IN SUPPORT OF JOINT MOTION FOR APPROVAL OF PAGA SETTLEMENT AGREEMENT 1 Case No. 115-CV-280897 1 the civil penalties set forth in Labor Code § 558 and Labor Code § 2699. 2 3. An accurate copy of the executed Settlement Agreement is attached hereto as Exhibit 1. 3 As can be seen from that agreement, it calls for a total of$165,000.00 to be paid into a settlement 4 fund. Out of that total sum, $75,000.00 will be allocated to unpaid wages, with the remainder 5 ($90,000.00)to be allocated as between costs, attorney's fees, and civil penalties. 6 4. Plaintiffs costs in this matter have come to a total of$13,363.48. Those cost include the 7 civil filing fee, fees for service of process, court reporter fees, mediator fees, expert witness fees, 8 online legal research fees, miscellaneous travel expenses, miscellaneous mailing fees, and other 9 varied miscellaneous cost items. I have removed from the costs attributable to this litigation some io West Law charges because West Law apportions search fees in a manner that may not accurately 11 reflect what should be truly attributable to a given file. Consequently, I substantially reduced some 12 of the West Law charges that were costed to this file, resulting in an adjusted cost figure as set forth 13 above, i.e., $13,363.48. 14 5. Both the unpaid wages and the civil penalties will be distributed by a Settlement 15 Administrator to be hired by the employer. The unpaid wages will be distributed amongst all 16 employees on a pro-rata basis according to the number of weeks that were worked by each employee 17 during the claims period (April 2014 through the present). The civil penalties portion will be 18 apportioned according to the statute: 75% of that sum goes to the LWDA, and 25% goes to the 19 employees, as required by Labor Code § 2699 (i). The 25% going to the employees will be 20 distributed following the same rule as the unpaid wages, i.e., pro-rated to each employee based on 21 how many weeks they worked during the claim period. 22 6. This motion for approval of the Settlement Agreement under PAGA contains an 23 allocation of $56,000.00 for attorney's fees out of the total settlement amount of$165,000.00. In 24 declarants view, attorney's fees in the amount of$56,000.00 are modest by almost any measure. A 25 total recovery of $165,000.00 is a significant sum, significant enough to justify a fee award of a 26 much larger amount if it is shown that the hours expended were reasonable. However, as with 27 almost any settlement, the amount of the fee allocation contained in this motion is the result of 28 compromise. If this matter were before the court as fee motion, rather than requesting approval of an DECLARATION OF MARK RENNER IN SUPPORT OF JOINT MOTION FOR APPROVAL OF PAGA SETTLEMENT AGREEMENT 2 Case No. 115-CV-280897 1 agreed-upon sum,the amount that would be requested would be far in excess of$100,000.00. 2 This case involved a protracted dispute over document production and a discovery motion 3 ruled upon by the court on which Plaintiff prevailed to a substantial degree. The amount of 4 documents produced exceeded 3,000 pages. A number of sets of written discovery were propounded 5 and answered by both sides, and a number of different depositions were taken. The case was 6 prosecuted and defended almost until the close of discovery before the parties reached a settlement 7 at a second mediation session. Hence, the number of hours expended by Plaintiff's counsel came 8 close to 400, which if multiplied by a reasonable hourly rate--even assuming an extremely low such 9 rate--would yield a figure well in excess of$100,000.00 if fees were sought as a contested motion. 10 Consequently, it is submitted that the total figure of$56,000.00--a number which is almost exactly 11 one third of the total recovery--is a more than reasonable amount to be allocated towards attorney's 12 fees as part of the settlement. 13 7. Thus, the settlement amounts can be broken down as follows: 14 1. Unpaid Wages $ 75,000.00 15 2. Costs $ 13,363.48 3. Attorney's fees $ 56,000.00 16 4. Civil Penalties $ 20,636.52 TOTAL: $165,000.00 17 18 I declare under penalty of perjury under the laws of the state of California that the forgoing is 19 true and correct. 20 Executed thisday of August, 2016 at San Jose, California. 21 BY: Roe 22 MXRK S. RENNER 23 Attorney for Plaintiff 24 25 (:\0393\06872\settlement agreement\decl of msr in supportof joint motion for approval of page settlement.docx 26 27 28 DECLARATION OF MARK RENNER IN SUPPORT OF JOINT MOTION FOR APPROVAL OF PAGA SETTLEMENT AGREEMENT 3 Case No.115-CV-280897 EXHIBIT 1 DECLARATION OF MARK RENNER IN SUPPORT OF JOINT MOTION FOR APPROVAL OF PAGA SETTLEMENT AGREEMENT CASE NO.: 115-CV-280897 PROUT E ATT,J�RNEYS GENMAL SETTLEMENT AGREEMENT AND RELBASE This Private Attorneys General Act Settlement Agreement and Release ("Agreement") is made by and between Niicklaus Muncy,"("Plaintiff"),for himself and on behalf of the State of California, and Iron Mechanical, Inc. ("Iron Mechanical" or "Defendane). Plaintiff and Iron Mechanical are collectively referred to herein as the "Parties" and may be Individually referred to as a "Party," This Agreement is made in consideration of the following facts: A. WHEREAS, certain disputes have arisen between the Parties concerning Plaintiff's compensation, and the compensation of Plaintiffs co-workers at Iron Mechanical. B. WHEREAS, Plaintiff filed' the action entitled Nicklaus Muncy v, Iron Mechanical, Inc., Case No. 115-CV -280897, which is currently pending in Santa Clara County Superior Court based on the disputes described in Paragraph A above(the"Lawsuit"). In his Complaint;,Plaintiff asserts claims for monetary damages on his own behalf ("Individual Claims") including (1) failure to permit rest breaks,. §226.7; (2) failure to provide meal breaks, §512 (3) failure to Pay California Overtime; and (4) waiting time penalties, Cal. Labor Code %201-203. Plaintiff's causes of action include a representative claim for civil penalties and .underpaid wages payable to Plaintiffs co-workers and the State of California, and an award of reasonable attorneys' fees and costa. ("PAGA Representative Claim"). Iron Mechanical denies all of the allegations in the Lawsuit and denies that it has committed any misconduct, statutory or regulatory violation,wrongdoing,or any other actionable conduct. C. WHEREAS, the Parties understand, acknowledge, and agree that this Agreement constitutes a compromise of Plaintiffs individual and PAGA Representative Claim, and that it is the desire and intention of the Parties to effect a final and complete resolution of the Lawsuit against Trop Mechanical or any persons or companies affiliated with Iron Mechanical. The Parties further acknowledge that this Agreement is a compromise of disputed claims and that nothing in this Agreement shall be construed as an admission of liability. D. WHEREAS, the Parties believe and agree that this Agreement provides for a fair, adequate, and reasonable resolution of the PAGA Representative Claim, and have arrived at the settlement in extensive, arm's-length negotiations, taking into account all relevant factors,present and potential. -1- B. WHBRBAS, under California law, the State may assess and collect civil penalties-from employers for violations of certain provisions of the Labor Code. Under pAGA, however,if an aggrieved employee gives written notice by mrtifiod mail to the State and the employer of the specific provision of the Labor Code aIleged to have been violated, and the State thereafter decides not to investigate, or does investigate and determines that a citation against the employer should not issue, the employee may, as an alternative to enforcement by the State, bring a.civil action under PAGA to recover the civil penalties on behalf of himself or herself and other current or former employees. Civil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the state and 25 percent to the aggrieved employees. F. VVJHBREAS, California Labor Code section 26990) requires Court approval of any penalties sought as part of a proposed settIement agreement pursuant to PAGA. Pursuant to Labor Code section 2699(0(2),'the civil penalty for violations of the California Labor Code for which there is not a civil penalty otherwise specifically provided is$100 for each "aggrieved employee" per pay period for the initial violation and $200 for each "aggrieved employee"per pay period for each subsequent violation, and such sums are subject to adjustment to the extent the proposed penalty is unjust, oppressive and arbitrary or confiscatory. G. 'WHEREAS, Iron Mechanical asserts and has provided evidence that the maximum penalty here would be unjust oppressive and arbitrary and confiscatory. . H. WHEREAS, California Labor Code Section 2699 further'requires the parties 'submit any proposed settlement to the California Labor and Workforce Development Agency. (Labor Code§2699(1)(2)). I. WHEREAS, California Labor Code section 558 allows Plaintiff to recover underpaid wages on his own behalf and on behalf'of his co-workers, and where one- hundred percent of the recovered wages are paid to the "aggrieved employees." (See Thurman v. Bayshora Transit Mgmt.,203 Cal.App,4th 1112(2012).) I WHEREAS, the Parties have entered into 'a separate and related .Confidential Settlement Agreement and Release with respect to Plaintiffs Individual Claims("Plaintiff's Individual Settlement Agreement"). K. THEREFORE, in consideration of the promises and agreements contained herein;the Parties agree Iand covenant as follows: 1. EFFECr1'yE DATE: The effective date of this Agreement is the date the Court approves this Agreement ("Effective Date"). The parties will provide notice to -2- i the California Labor&Workforce Development Agency("LWDA") of this settlement at the time it seeks court approval of the.settlement. The parties intend to seek court approval of this Agreement by motion or.stipulation and order on or before September 1,2016. 2. RELEASB: Upon the Effective Date, the LWDA and each PAGA Co- Worker,Including PhdntM shall fully release and forever discharge any and all penalty and wage claims under California Labor Code sections 558, 256 and 2698 et. seq. predicated on the alleged California Labor Code violations asserted in the Complaint, filed May 20,2015, (hereinafter the "Released PAGA Claims") against Iron Mechanical, and/or Iron Mechanical's past or present parents, subsidiaries, and affiliated corporations,and/or its officers, directors, employees, partners, agents, insurers, and/or any other Individual or entity which could be liable for the acts of omissions of Iron Mechanical(hereinafter "Released Parties"). 3. �jOTICE TO PAGA CQ-W�RS: a. No later . than five (5) days after the Effective Date, Iron Mechanical shall provide the Claims ,Administrator with a list of all PAGA Co-workers (the "PAGA Co-Worker List"). The PAGA Co-Worker List shall state the PAGA Co-Worker full names, business names, contact information(including address, phone number,and drivers'license number), and dates of service. b. The Claims Administrator will mail notice of settlement and settlement checks to the PAGA Co-Workers identified on the PAGA Co-Worker List. Should any of the notice of settlement be returned as undeliverable, the Claims Administrator will have until no later than forty-five (45) days after the Effective Date to search for a more current address for the PAGA Co-Worker and to re-mail notices to traced addresses. c, No claims procedure is anticipated In connection with this settlement. Negotiation of the check will evidence acceptance of the amount paid in exchange for release of the claims asserted in the Lawsuit. 4. PAGA SEMEMEN'T PAYMENT PROCEDURES: a. In exchange for Plaintiff's and PAGA Co-Workers' release of any and all claims under California Labor Code sections 558, 256 and 2698, et. seq. (including PAGA penalties payable in part to the State of California and penalties for alleged underpaid wages payable in full to the PAGA Co-Workers)against the Released Parties, Iron Mechanical agrees to pay, in accordance with the terms specified below, -3- the gross Bum of $ 165,000 (the OVAGA Fund") to Plaintiff, his PAGA Co-Workers, and/or the LWDA, as apportioned below. This sum is non-reversionary. Iron Mechanical agrees to fund the PAGA Fund established by the Claims Administrator within forty (40) days after the Effective Date. The parties agree that Attorneys' Fees and Costs are to be paid out of this PAGA Fund. The PAGA Fund will be funded only after all of the following conditions have been met: (1)Plaintiff has signed this Agreement; (2) Plaintiff has provided Iron Mechanical with a completed and executed IRS Form W-9 for himself and for hie attorneys;and (3).the Court has granted approval of the settlement of the PAGA Representative Claim, and the attorney's fees and cats requested by Plaintiff's Counsel. Iron Mechanical will issue IRS Form 1099s to Plaintiff's attorneys. b. The parties allocate $75,000 of the PAGA Fund to the PAGA Co- Workers' claim for underpaid wages (the "Underpaid Wage Fund"), and each PAGA Co-Worker shall receive a pro rota share of this amount as further detailed to Paragraph 4(d)below. C. The parties allocate the remainder of the PAGA Fund, except for the amount allocated to attorney's fees and costs, to civil penalties (the "Penalties Fund"). Seventy-Five percent(75°x))of this amount will be paid to the California Labor & Workforce Development Agency in satisfaction of all PAGA Claims in the Lawsuit ("LWDA PAGA Payment"). Iron Mechanical's payment of the LWDA PAGA. Payment shall be made by the Claims Administrator at the time the PAGA Fund is disbursed. d. PAGA Co-Workers shall receive a pro raga share of the amount of the Underpaid Wage Fund, and the Penalties Fund, once attorney's fees and costs are deducted from the PAGA fund. Payroll taxes will be deducted from the Underpaid Wage Fund amounts. Each PAGA Co-worker share shall be determined based on the number of workweeks that he or she.provided services to Iron Mechanical in the State of California from April 20,2014 through the Effective Date, (the"Calculations Period") elative to the total number of workweeks during which all of the PAGA Co-Workers p �i.�calid,.clai�3s provided services to Iron Mechanical in the State of �J California during the Calculations Period. e. The Claims Administrator shall distribute Settlement Checks to PAGA Co-Workers in accordance with the procedures specified in Paragraph 4(d) no later than ninety (90) days after the Effective bate. Settlement Checks issued to PAGA Co-Workers pursuant to this Agreement will expire one hundred and eighty(180) days from the date they are rued by the Claims Administrator. No amount will.revert to Iron Mechanical. Any uncashed checks will be paid over to the LWDA. -4- f. The Lawsuit will be dismissed with prejudice after disbursement of the PAGA Fund and after payment to Plaintiff pursuant to -Plaintiffs Individual. Settlement Agreement. 5. ADMIM ATIDN AND DISBURSEMENT COS'I5: Iron Mechanical agrees to pay for the fees and costa of settlement administration. Defendant will select the settlement administrator, subject to plaintiffs counsel's approval, such,approval not to be unreasonably withheld. 6. COURT APP OVAL: Should the Court not approve this Agreement, the Parties shall request leave and work jointly to attempt to remedy the PADA settlement in order to obtain the Court's approval. The Court shall retain jurisdiction to enforce this Agreement. 7. - REPRESENTATIONS AND WIAREAhMES: In further consideration for payment of the PAGA settlement amounts,Plaintiff represents and warrants that he has the right and exclusive authority to execute this Agreement. Each Party to this Agreement also represents and warrants to, and agrees with,each other Party hereto as follows: 7.1 Each Party has carefully read,and knows and understands the full contents of this Agreement and is voluntarily entering into this Agreement after having received independent legal advice from his or its attorneys with respect,to the advisability of making the settlement provided for herein and the advisability of executing this Agreement. 7.2 In executing this Agreement and in making the settlement provided for herein, no Party relies or has relied on any statement, representation, omission,, inducement, or promise of any other'Party (or any officer, agent, employee, representative, or attorney for any other Party), except as expressly stated in this Agreement. 7.3 Each Party to this Agreement has investigated the facts relevant to this settlement and this Agreement,and all matters pertaining thereto, to the full extent that each I "deems necessary. 7.4 • Each separately numbered term of this Agreement is contractual, not merely a recital. 7.5 Each of the Parties has participated in the drafting of all provisions of this Agreement, has had an adequate opportunity to read, review, and consider the effect of the language of this Agreement and has agreed to its terms. -5- 7.6 The Agreement is admissible and enforceable pursuant to Evidence Code Section 1123. 8.- -CHOICE OF LAW: The rights and obligations of the Parties and the PAGA Co- Yorkers under this Agreement shall 'be' construed and enforced in accordance with, and governed by, the laws of the State of California. California law shall govern the Interpretation of this Agreement even if a choice of law analysis under state or federal law would dictate that another forum's law be applied. 9. COOPERATION Each Party, on behalf of themselves, and their respective business entities, heirs, executors, and assigns, agrees that they will abide by this Agreement and will do all such acts, and prepare, execute, and deliver all such documents, as may be reasonably required to carry out the stated objectives of this Agreement. 10. SIrV'VERANCB: If any provision of this Agreement Is held to be invalid .by a court of competent jurisdiction, that provision shall be deemed severed and deleted from this Agreemena, and neither that provision nor Its severance and deletion &,hall affect the validity of the rrmalning provisions. Notwithstanding the foregoing,no portion of any release contained herein may be deemed severed or deleted from this Agreement, except upon waiver in writing by the applicable Released Party. 11. NON-ADWMN_ OF tic QNGDOING: The Parties agree that this Agreement does not constitute an admission by Iron Mechanical or any of the Released Parties, as defined in the Plaintiffs' Individual Settlement Agreement; of any of the mafiters alleged in the Lawsuit or of any violation by any of them of any federal,state or local law, ordinance or regulation, or of any violation of any policy or procedure, or of any liability or wrongdoing whatsoever. Neither this Agreement nor anything in this Agreement shall be construed to.be or shall be admissible in any proceeding as evidence of liability or wrongdoing by Plaintiffs, Iron Mechanical any of Iron Mechanical's parents, subsidiaries, divisions, affiliated corporations, trustees, directors,officers, shareholders, agents,attorneys,insurers,or employees. 12. ADDITIONAL.TERMS: 12.1 This Agreement is binding upon, and shall inure to the benefit of, the Parties hereto and their respective agents, employees, representatives, officers, directors, parents, subsidiaries, assigns, heirs, executors, administrators, insurers, and successors in interest. .6- 127 Given that all Parties hereto had the opportunity to drafty review, and edit the language of this Agreement, no presumption for or against any Party arising out of drafting all or any part of this Agreement may be applied in any action relating to, connected to,-or involving this Agreement. Accordingly, the Parties hereby waive the benefit of any legal principle or rule providing that, in cases of uncertainty, the language of a contract should be interpreted against the Party who caused the uncertainty to exist. 12.3 This.Agreement may be executed in counterparts. A signature by way of facsimile shall serve as an original for all purposes. 12.4 Headings in this Agreement are included solely for convenience and shall not control the meaning or interpretation of any provision of this Agreement. 13. ENTTRE AGREBMfiNT: This Agreement sets forth the entire agreement between the Parties hereto and fully supersedes any and all prior and/or supplemental understandings, whether written or oral, between the Parties concerning the subject matter of this Agreement. Plaintiff acknowledges that he has not relied on any representations, promises or agreements of any kind made to him in connection with the decision to accept the terms of this Agreement except for the representations, promises and agreements herein. Any modification to this Agreement must be in writing and signed by Plaintiff and an.authorized officer of Iron Mechanical, 14. A,T PEES AND COSTS: Other than as stated herein, each party to this Agreement will bear such party's own fees and costs, C ate' Ji y ' !7! ?--a! !o ✓ . t KlIf DATED: NICKLAUS MUNCY -7- DATED: l8 ! ' IRON MECHANICAL,INC. By: S'V/ ev c �{/J Approved as to form: COOK BROWN,LLP DATLD: .� BY: � ���� BARBARA A.COTTER,, ESQ. Attorney for Defendant WYLIE,MCBRIDE,PLATTEN&RENNER DATED: '-t BY: MARK S.RENNER, ESQ. Attorney for Plaintiff -S- PROOF OF SERVICE (C.C.P. 1013 (3)& 1011) (Revised 1/1/88) Z0I6 23 A + ; I, the undersigned say: � �; f .�-•�,�;� co t1a. That I am now and at all times herein mentioned a citizen of the United States and a resident of Santa Clara County, California. I am over the age of eighteen years and not a party to the within action. My address is 2125 Canoas Garden Avn., Suite 120, San Jose, CA 95125. On this date I served: DECLARATION OF MARK RENNER IN IN SUPPORT OF AND JOINT MOTION FOR APPROVAL OF PAGA SETTLEMENT AGREEMENT XXX_ by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully paid, in the United States Post Office mail at San Jose, Santa Clara County, California, addressed as set forth below. I am readily familiar with my firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing affidavit. by personal delivery to the address listed below. PLEASE SEE ATTACHED SERVICE LIST by FAX (Telecopier) —as follows: I personally sent to the addressee's telecopier number a true copy of the above-described document(s). I verified transmission and called the addressee and verified receipt. Thereafter I placed a true copy in an envelope addressed and mailed as indicated above. by placing a true copy thereof enclosed in a sealed U.P.S. overnight-mail envelope with our firm's account number for U.P.S. pick-up and addressed as set forth below. I declare under penalty of perjury that the foregoing is true correct. Executed on this 22 day of August, 2016, at San Jose, California. 1 M y ansen SERVICE LIST MUNCY V. IRON MECHANICAL INC. 115-CV-280897 Barbara A. Cotter, Esq. Lisa V. Ryan,Esq. Jacqueline Pham,Esq. COOK BROWN, LLP 555 Capitol Mall, Suite 425 Sacramento, CA 95814 Telephone: 916-442-3100 Facsimile: 916-442-4227 bcottergcookbrown.com jpham@cookbrown.com Attorne s or Defendant Iron Mechanical Inc.