{00099023.DOCX.2}
ASSIGNMENT AND CONSENT
FRANCHISE AGREEMENT
THIS ASSIGNMENT AND CONSENT (th is “Agreement”) is made this [____] day of June, 202 2, by and between the CITY OF MILPITAS, a municipal corporation ( the “City”), MILPITAS SANITATION , INC. , a California corporation ( the “Contractor”), and WASTE CONNECTIONS US, INC. , a Delaware corporation ( “Waste Connections ”), collectively, “the Parties,” with reference to the following:
A. The City and the Contractor are parties to that Franchise Agreement for Collection of Solid Waste and Collection and Processing of Recyclable Materials and Organic Materials , dated December 8, 201 6, as such has been amended from time to time (the “Franchise Agreement”);
B. The Contractor , Waste Connections and other parties have entered a Securities Purchase Agreement, dated April 27, 2022 (the “Purchase Agreement”); C. At a closing (the “Closing”) to be held on or about July 1, 2022, in accordance with the Purchase Agreement, the current shareholders of Contractor will sell all the shares in the Contractor (the “Contractor Shares”) to Waste Connections, which will result in a change in majority control of the Contractor from the current owners of the Contractor; and D. The Parties wish to document the terms and conditions upon which the City relies in consenting to the sale of the Contractor Shares to Waste Connections (the “Assignment”), and to confirm the status of the Franchise Agreement, on the terms herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants hereinafter set forth and other consideration the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
1. Consent to Assignment. From and after the Closing, the Contractor shall continue to possess all of its right, title and interest in the Franchise Agreement. The Contractor hereby agrees to keep, perform, fulfill and be bound by all of the terms, covenants and conditions required to be kept, performed, and/or fulfilled under the Franchise Agreement from and after the Closing.
2. Condition to Approval. As a condition of the City ’s approval of the Assignment, Waste Connections, the Contractor and the City agree as follows. (a) Waste Connections ’ Acquisition Costs . Waste Connections agrees that amounts it pays to the current owners of the Contractor under the Purchase Agreement or any other costs incurred by the Contractor or Waste Connections in acquiring or selling stock or real property under the Purchase Agreement shall not, in calculating rates or adjustments to rates, be considered as an expense or otherwise affect rates charged by the Contractor for performing waste collection services in the City pursuant to the Franchise Agreement. (b) Payment of Assignment Fee. Contractor shall pay the City an assignment fee equal to [insert total amount] as required by Section 12.6 of the Agreement upon the closing of the sale of the Contractor Shares. Contractor understands and agrees that this payment include 675
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an additional One Hundred Fifty Thousand Dollars ($150,000) in addition to the two percent of Gross Receipts (as defined in the Franchise Agreement) required under the Franchise Agreement.
3. Additional Obligations. Waste Connections and the Contractor hereby affirm and warrant:
(a) that Waste Connections has at least ten (10) years of Solid Waste Transfer and Disposal management experience on a scale equal to or exceeding the scale of operations conducted by the Contractor under this Agreement;
(b) that in the last five (5) years, Waste Connections has not been the subject of any administrative or judicial proceedings initiated by a federal, State or local agency having jurisdiction over its operations due to an alleged failure to comply with federal, State or local laws; (c) that Waste Connections conducts its operations in a safe and environmentally conscientious manner; and
(d) that Waste Connections conducts its operations in accordance with sound Solid Waste management practices in full compliance with al l federal, State and local laws regulating the Transfer and Disposal of Solid Waste and all Environmental Laws.
4. Franchise Agreement in Effect. The Franchise Agreement is in full force and effect and, except as provided herein, has not been modified, altered or amended in any respect and contains the entire agreement between the City and the Contractor with respect to the subject matter thereof. Any breach of this Agreement shall be a breach of the Franchise Agreement.
5. Governing Law . This Agreement shall be governed by, and interpreted and enforced under, the laws of the State of California, without giving effect to conflict of laws principles. Venue shall be as provid ed for in the Franchise Agreement, which provision is incorporated by reference.
6. Fourth Amendment to Franchise Agreement. City and Contractor are concurrently executing that certain Fourth Amendment to the Franchise Agreement, which is incorporated by reference. City’s consent to the Assignment is expressly conditioned on Contractor’s execution of the Fourth Amendment in the form approved by City. Contractor’s failure to do so prior to the Closing shall void this Agreement.
7. Counterparts. This Agreement may be signed in three (3) or more counterparts, each of which shall be deemed an original but when taken together shall constitute one and the same instrument. Counterparts may be sent for signature by email. Signatures on PDF copies thereof shall be dee med original signatures for all purposes and such PDF copies shall be admissible as evidence of the agreement in any and all administrative or judicial proceedings.
8. No Third -Party Beneficiaries . The Parties intend this Agreement for the sole benefit of the Parties and do not intend to confer any rights under this Agreement or any right to enforce this Agreement on any person or entity who is not one of the Parties. 676
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the day and year first above written.
CITY OF MILPITAS
By: _______________________________
Name:
Title:
Date: _________________
MILPITAS SANITATION, INC.
By: _______________________________
Name:
Title:
Date: _________________
APPROVED AS TO FORM:
By: _______________________________
Name:
Title:
Date: _________________
WASTE CONNECTIONS US, INC.
By: ______________________________
Name:
Title:
Date: _________________
APPROVED AS TO CONTENT:
By: _______________________________
Name:
Title:
Date: _________________
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FOURTH AMENDMENT TO FRANCHISE AGREEMENT
THIS FOURTH AMENDMENT TO FRANCHISE AGREEMENT (the “Amendment”), for reference purposes dated ______________, is made and entered into by and between the City of Milpitas (“City”), and Milpitas Sanitation, Inc. (“Contractor”).
WHEREAS, City and Contractor entered into that Franchise Agreement between City of Milpitas and Milpitas Sanitation, Inc. for Collection of Solid Waste and Collection and Processing of Recyclable Materials and Organic Materials dated December 16, 2016, as amended by the First Amendment to Franchise Agreement dated March 21, 2017, the Second Amendment to the Agreement dated October 17, 2017, and the Third Amendment to the Agreement dated November 29, 2018 (collectively, the “Agreement”); and
WHEREAS, Section 13.4 of the Agreement provides that any amendment of the Agreement must be in a writing executed by the parties; and
WHEREAS, City and Contractor desire to amend the Agreement to modify certain provisions and make certain other changes.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Figure 4-1 in Article 4 is hereby amended to revise the row entitled “Single-Family Premises with 1-4 units” as follows:
Single-Family Premises
with 1-4 units
Split-Carts: {Solid Waste /
Food Scraps)/ unit
Total Capacity: 38-gal, 45-
gal (64-gal cart with 26-gal
insert solid waste), 64-gal,
96-gal
Food Scraps Capacities:
19-gal (38-gal cart with
solid waste insert) and 29-
gal (96-gal cart)
Solid Waste Cart: 96-gal
Food Scrap Cart: 21-gal
None
2. Item “Containers” set forth in Section 4.1.A of the Agreement is amended to read in full as follows:
“Containers: Contractor-Provided Carts and split-Carts {Solid Waste/Food Scraps}”
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3. Item “Container Sizes” set forth in Section 4.1.A of the Agreement is amended by adding the underlined below to that Section:
“…The 64-gallon split-Cart will have 45 gallons of solid waste capacity and the 96- gallon split-Cart will have 67 gallons of solid waste capacity. 96-gallon Carts with a dedicated 21-gallon Food Scraps Cart. The default Solid Waste split-Cart shall be 64 gallons.”
4. Item “Other Requirement” set forth in Section 4.1.B of the Agreement is amended by adding the underlined below to that Section:
“Other Requirements: Contractor shall accept household batteries in the Recyclables Materials program. Batteries to be collected in a bag placed on the cart. Contractor shall collect oversized cardboard that is flattened and cut into sections no larger than 3ft x 3ft and bundled or neatly stacked next to the recycling cart.”
5. Item “Containers” set forth in Section 4.1.C.2 of the Agreement is amended to read in full as follows:
“Containers: Contractor-Provided Carts, Split-Carts {Solid Waste (described in Section
4.1.A/Food Scraps} and 2-gallon kitchen pails.”
6. Item “Container Sizes” set forth in Section 4.1.C.2 of the Agreement is amended to read in full as follows:
“Container Sizes: 64-gallon or 96-gallon split-Carts {Solid Waste/Food Scraps}, 19- gallon Cart (as requested by Customer). The default Food Scraps Cart shall be the 64- gallon split-Cart. 64-gallon Cart provides 19-gallons of Food Scraps capacity and the 96- gallon Cart provides 29 gallons of Food Scrap capacity.”
7. Item “Service Level” in Section 4.1.F and 4.2.D of the Agreement is amended to replace “one (1)” with “three (3)” and clarify how additional material can be set out for collection as set forth below:
“Service Level: Up to three (3) cubic yards of Solid Waste, Recyclable Materials, Organic Materials, Reusable Materials, C&D, and E-Waste OR up to three (3) Appliances or Bulky Items. Customer shall have the option of setting out up to three (3) cubic yards in the equivalent number of garbage bags (e.g., six (6) 96-gallon trash bags).
Additionally, Contractor shall cease requiring and providing “White Bags” for bulky item pick-ups.”
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8. Item “Other Requirements” in Section 4.1.F of the Agreement is amended by adding the underlined below to that Section:
“Other Requirements: Contractor shall offer a “Voucher Program” as an alternative to the On-Call Curbside Bulky Item/Reuse Materials Collection. The Voucher will allow a Customer to self-haul and dispose any Acceptable Materials including concrete at the Mission Trail Waste Systems, Inc. Transfer Station in Santa Clara, or other City approved facility, during normal business hours.”
9. Item “Unscheduled Service” in Section 4.15.B.2 is amended to replace “11,000” with “12,500” as set forth below:
“Contractor shall sweep up to 12,500 Curb Miles per calendar year, including both scheduled service and unscheduled service.”
10. Sections 8.D and 8.E are hereby added to Exhibit B to read in full as follows:
“D. Host two (2) compost giveaway events per year within the City at locations designated by City. Attendees at each event may pick up to four (4) 1.5 cubic feet bags of compost per event. Contractor shall provide at least 3,200 bags of compost for each event.
E. Deliver up to one hundred (100) 1.5 cubic feet bags of compost to a location designated by City once each month. Compost can be picked by City residents at each location.”
11. Section 4.6 of the Agreement is hereby amended by adding the following language to that section:
“Special event services include but are not limited to: 4th of July Event, Holiday on Main Street, and other events identified and approved by City Contract Manager.”
Additionally, Contractor shall support and provide containers and collection service for an initial six (6) Neighborhood Clean Up events per calendar year. Contractor shall coordinate with City to determine the number of debris boxes that will be delivered per event, delivery time, and removal time. Contractor shall deliver collected materials to an Approved Facility. Contractor agrees to increase this to up to twelve (12) Neighborhood Clean Up events per year based upon utilization and participation by the community. The City and Contractor agree to monitor this service to ascertain compliance with applicable State of California requirements.”
12. The costs associated with the service and other changes in this Amendment will be included in the Actual Allowable Total Annual Cost of Operations for the next cost-based Rate adjustment under the Agreement (i.e., for Rate Period Eight). 680
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13. This Amendment will become effective only upon City’s consent to the assignment resulting from the sale of Contractor’s outstanding shares of stock to Waste Connections US, Inc. and the closing of such sale.
14. Except as otherwise modified by this Amendment, the Agreement remains in full force and effect.
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CITY OF MILPITAS
By: _______________________________
Name:
Title:
Date: _________________
MILPITAS SANITATION, INC.
By: _______________________________
Name:
Title:
Date: _________________
APPROVED AS TO FORM:
By: _______________________________
Name:
Title:
Date: _________________
WASTE CONNECTIONS US, INC.
By: ______________________________
Name:
Title:
Date: _________________
APPROVED AS TO CONTENT:
By: _______________________________
Name:
Title:
Date: _________________
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CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Rescind Resolution No. 9171 and Approve a Resolution Submitting to the Qualified Voters of the City of Milpitas a Measure Amending Chapter 400 (Mayoral and Councilmanic Term Limits) of Title 1 (Administration) of the Milpitas Municipal Code to Amend Term Limits on Mayoral and City Council Member Service, at a General Municipal Election to be Consolidated with the Statewide General Election to be Held November 8, 2022, and Setting Rules for Arguments and Rebuttals for and Against Said Measure(Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3040) Category: Leadership and Support Services
Meeting Date: 6/21/2022
Recommendation: (1) Motion to rescind Resolution No. 9171. (2) Determine whether the Council wishes to print the text of the ballot measure at a cost of $8,482 per page. (3) Motion to approve a Resolution Submitting to the Qualified Voters of the City of Milpitas a Measure Amending Chapter 400 (Mayoral and Councilmanic Term Limits) of Title 1 (Administration) of the Milpitas Municipal Code to Amend Term Limits on Mayoral and City Council Member Service, at a General Municipal Election to be Consolidated with the Statewide General Election to be Held November 8, 2022, and Setting Rules for Arguments and Rebuttals for and Against Said Measure.
BACKGROUND:
Term limits were adopted by the voters on May 17, 1996, which added Milpitas Municipal Code section I-400.
The Municipal Code specifies that a person may serve a maximum of 3 consecutive elective terms as either a City Councilmember or as the Mayor. However, a person can extend out these terms if they are a Councilmember who is elected to Mayor or the Mayor who is elected to a City Council seat. Under this latter scenario, a person can serve a combined total of no more than 4 consecutive elected terms. The present term limits leave the total service time for consecutive terms served by Councilmembers incongruent with the total service time for consecutive terms served by the mayor. Under the current term limit code, a Councilmember could serve for 14 consecutive years before he or she is required to take a 2-year cooling off period. The Mayor may only serve for 10 consecutive years before he or she must take a 2-year cooling off period.
At the August 4, 2020, City Council meeting, the City Council voted to discuss the possibility of pursuing a change to the term limits applicable to the Mayor and the City Council. At the March 16, 2021 City Council meeting, the City Council voted to agendize a discussion to change the term limits. At the March 16, 2021, meeting, Mayor Tran also requested information related to potentially eliminating the position of the directly elected Mayor in favor of a rotational Mayor position amongst all councilmembers. At the April 5, 2022 City Council meeting, the City Council decided to change the term limits for the Councilmembers from 3 4-year terms to 2 4-year terms but could not reach a consensus with regard to the mayoral terms. The Council requested further information concerning mayoral term limits. At the May 10, 2022 council meeting, the Council directed staff to bring back a draft resolution changing the Councilmember term limits but leaving the Mayoral term limits intact.
In order to change the term limits, a ballot measure needs to be proposed by the City Council and approved by voters. The process of putting forth a ballot measure requires the Council to adopt a resolution to put the measure before the qualified voters of the City.
On June 7, 2022, the Council voted unanimously to approve Resolution 9171 to submit an ordinance to the voters of the City of Milpitas that would shorten councilmember term limits to 2 consecutive 4-year terms 683 Item # 33.
followed by 1 2-year mayoral term. After that meeting, City staff was confronted with potential issues in the ordinance. Upon further evaluation, staff determined that under both the term limits adopted in 1996 and the proposed term limits in Resolution 9171, a person may be in elected office by serving non-consecutive terms.
A person could arguably serve as councilmember, then mayor, then councilmember, then mayor, then councilmember, then mayor, and so on into perpetuity without ever serving consecutive terms. Since both the existing and proposed term limits are concerned with consecutive terms of a single office, the official switching back and forth between these two offices would never trigger the applicable term limit.
The matter is now being brought to the Council to consider a 10-year term limit that would not allow for this type of non-consecutive gamesmanship.
ANALYSIS:
California Government Code section 36502(b) authorizes a general law city, such as the City of Milpitas, to limit the number of terms an elected Mayor or City Councilmember may serve. This State law outlines two principal rules:
A local term limits measure must be “prospective”. It may only apply to new Mayoral/Council terms that were voted upon at the same election as the measure, or terms voted upon at a later election. For example, a term limits measure passed at the November 8, 2022 General Municipal Election could apply to new terms elected at that same election and to those new terms elected in November 2024, 2026, etc. However, it could not apply to terms elected two years earlier at the November 3, 2020 General Municipal Election. That would make the measure impermissibly “retroactive” rather than “prospective”.
A local term limits measure requires voter approval. It must be submitted to City of Milpitas voters at a “regularly scheduled election” and obtain majority voter approval. Under case law, a “regularly scheduled election” means (i) a statewide primary election, (ii) a statewide general election or (iii) a general municipal election. The next Statewide General Election will be held on November 8, 2022, which also coincides with the City’s next General Municipal Election. Staff notes that most cities schedule term limits measure elections to coincide with their Council elections. Because term limits measures require voter approval, the State Elections Code for local measures applies. Such a measure may be placed on the ballot by either a citizens’ initiative petition, signed by least 10% of the City’s registered voters, or by City Council majority action to call the measure for election. Once placed on the ballot, the City Attorney will prepare an impartial analysis of the measure and interested persons may submit written arguments for or against the measure, to be included in the voter information guide as provided by State Elections Code.
Beyond these two principal rules, how a term limits measure is ultimately written is left to local policy. At the direction of this Council, the attached ordinance was drafted for the consideration of the voters. The ordinance would no longer require consecutive terms in any single office. Beginning in 2022, all elected officials would be subject to a term limit of 10-years of consecutive service as either a Councilmember or as the Mayor. Officials would be further restricted such that they could serve no more than 6 cumulative years as mayor during that 10-year period. After an official has exhausted her 10-year term, she must serve a 2-year cooling off period before running for either Council or to be Mayor. This change will prevent individuals from serving an indefinite number of non-consecutive terms as Councilmember and then Mayor.
Section I-400-3(C) of the draft ordinance sets forth the transitional rules for the Mayor and Councilmembers who are currently in those seats when the new code goes into effect. Under these transitional rules, the term limits do not reset upon the effective date of the new code. Thus, a Mayor who has served by election or appointment the terms beginning in years 2016, 2018, and 2020, may not run for mayor in 2022. That person may run for Council in 2022 but must take a two-year cooling off period after serving those consecutive terms.
Likewise, a Councilmember who has served for the entirety of the terms beginning in 2016 and 2020 may run for a single Mayoral term before taking a cooling off period. Should a Councilmember who has served terms beginning in 2016 and 2020 be elected mayor in 2022, that Councilmember may serve two mayoral terms before taking a cooling off period. A Councilmember who has served for the term beginning in 2020 may run 684 Item # 33.
for one Council term and a Mayoral term, or three Mayoral terms. These transitional term limits keep the new code in line with the term limits previously in place and ensure that the members currently serving on the council will continue to follow the same rules as everyone else.
Additionally, the Council may, but need not, choose to print the text of the entire text of the ordinance in the County Voter Information Guide (“CVIG”). It is generally advisable to print the entire text for complex or potentially confusing measures. This particular ordinance appears to be neither complex nor confusing. The ballot language is simple and straightforward. The cost to print the ordinance language in the CVIG is estimated at $8,482 per 800-word page. The ordinance is 2,030 words. The estimated cost to print the entire ordinance in the CIVG is $25,446. Should the Council decide not to print the ordinance in the CVIG, a note will be included therein that the entire ordinance can be requested from the City Clerk. An impartial analysis of the ordinance will be included in the CVIG whether or not the Council decides to include the entire text.
POLICY ALTERNATIVE(S):
Alternative 1: Do not adopt the resolution to submit the term limit issues to the voters.
Pros: None.
Cons: The term limits will not apply to an elected official who serves non-consecutive terms as Councilmember and Mayor into perpetuity.
Reason for Not Recommending: The Council should fix the flaw in the term limit scheme that allows a person to serve indefinitely by not triggering the limit while serving non-consecutive terms.
FISCAL IMPACT:
There is no additional impact beyond that incurred in the approval of Resolution 9171. These are the estimated expense of placing the item on the November ballot, which is $80,000 to have the Santa Clara County Registrar of Voters conduct the election. Those costs include $73,475 for the election and $5,909 for the publication of the required impartial analysis. In addition, the text of the measure can, but need not, be printed at a cost of $8,482 per page for an additional cost of $25,446. This amount may be funded by the FY2022-23 General Fund Unanticipated Expenditures Reserve.
California Environmental Quality Act (CEQA):
The City Council’s action in adopting a resolution placing the item on the ballot for a general election is not a project subject to the California Environmental Quality Act (CEQA) as it is more akin to general organizational or administrative activities of the City that will not result in direct or indirect physical changes in the environment pursuant to CEQA Guideline 15378(b)(5).
RECOMMENDATION:
1. Motion to rescind Resolution No. 9171.
2. Determine whether the Council wishes to print the text of the ballot measure at an additional cost of $8,482 per page. (3) Motion to adopt a Resolution Submitting to the Qualified Voters of the City of Milpitas a Measure Amending Chapter 400 (Mayoral and Councilmanic Term Limits) of Title 1 (Administration) of the Milpitas Municipal Code to Amend Term Limits on Mayoral and City Council Member Service, at a General Municipal Election to be Consolidated with the Statewide General Election to be Held November 8, 2022, and Setting Rules for Arguments and Rebuttals for and Against Said Measure.
Attachment(s):
1. Resolution 9171
2. A Resolution Submitting to the Qualified Voters of the City of Milpitas a Measure Amending Chapter 400 (Mayoral and Councilmanic Term Limits) of Title 1 (Administration) of the Milpitas Municipal Code to Amend Term Limits on Mayoral and City Council Member Service, at a General Municipal Election to be Consolidated with the Statewide General Election to be Held November 8, 2022, and Setting Rules for Arguments and Rebuttals for and Against Said Measure
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RESOLUTION NO. ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS,
CALIFORNIA, SUBMITTING TO THE QUALIFIED VOTERS OF THE CITY OF MILPITAS A MEASURE AMENDING CHAPTER 400 (MAYORAL AND COUNCILMANIC TERM LIMITS) OF TITLE 1 (ADMINISTRATION) OF
THE MILPITAS MUNICIPAL CODE TO AMEND TERM LIMIT S ON
MAYORAL AND CITY COUNCIL MEMBER SERVICE, AT A GENERAL
MUNICIPAL ELECTION TO BE CONSOLIDATED WITH THE
STATEWIDE GENERAL ELECTION TO BE HELD NOVEMBER 8, 2022,
AND SETTING RULES FOR ARGUMENTS AND REBUTTALS FOR AND
AGAINST SAID MEASURE
WHEREAS, the City of Milpitas is governed by an elected City Council consisting of a separately elected Mayor who currently serves two-year terms and four City Council Members who currently serve four-year terms; and
WHEREAS, the Mayor and City Council Members are generally elected in November of even-numbered years; and
WHEREAS, the Milpitas Municipal Code currently sets the following term limits on Mayoral and City Council service:
• A combined total of three consecutive elective terms serving as either Mayor or as a Councilmember; however
▪ If a Councilmember is elected Mayor or the Mayor is elected as a Councilmember, the official may serve a combined total of four c onsecutive elective terms; and
▪ Once the elected official reaches their respective term limit, he or she may not serve in that office for a “cooling off period” of at least two years and may then serve again in elective office; and
WHEREAS, the Milpitas City Council desires to propose an ordinance/measure (the “Measure”) which would amend Chapter 400 of Title 1 of the Milpitas Municipal Code in order to amend Mayoral and City Council term limits as follows, effective starting with the November 8, 2022 General Municipal Election:
• A total of ten consecutive years of combined elective service, whether as Mayor or a City Councilmember. If the elected official reaches the ten year term limit, he or she may not serve in any elective office for a “cooling off period” of at least two years and may then serve in elective office again (as Mayor or Councilmember) for a new term limits period; and
• Notwithstanding the above, one may not serve more than a total of six years as Mayor (three elective terms) within the ten consecutive year combined limit.
If the Mayor reaches the six year term limit, he or she may (i) run for one elective 697
Item # 33.
City of Milpitas
Resolution No. 2022-___
term as a Councilmember, provided the Mayor has four years remaining within his or her respective ten consecutive year combined term limit; or (ii) choose not to serve in elective office for a “cooling off period” of at least two years, after which he or she may then se rve in elective office again (as Mayor or Councilmember) again for a new term limits period; and
WHEREAS, California Government Code section 36502(b) requires a local term limits ordinance/measure to be submitted to and approved by a majority of voters voting at a “regularly scheduled election”; and
WHEREAS, the next “regularly scheduled election” is the General Municipal Election to be held on the same date as the Statewide General Election - November 8, 2022; and
WHEREAS, pursuant to California Elections Code Section 9222, the City Council is authorized to submit the Measure to the voters; and
WHEREAS, California Government Code section 36502(b) also requires a local term limits ordinance/measure to be “prospective”; and
WHEREAS, the Measure is drafted to be “p rospective” and will only limit future Mayoral or Council Member terms starting with the November 8, 2022 General Municipal Election; and
WHEREAS, the City Council desires to consolidate the General Municipal Election for the Measure described herein with the Statewide General E lection to be held on November 8, 2022; and
WHEREAS, pursuant to California Elections Code sections 9285 and 9286, the City Council further desires to establish rules and regulations for the preparation, submittal and printing of arguments and rebuttals for and against the Measure described herein; and
WHEREAS, the specific terms of the Measure are attached hereto as Exhibi t “A” and by this reference made an operative part hereof, and in accordance with all applicable laws.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MILPITAS,
CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. Recitals. The City Council of the City hereby finds and determines that the foregoing recitals are true and correct, are incorporated herein and by this reference made an operative part hereof.
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Resolution No. 2022-___
SECTION 2. Submission of Ballot Measure. The City Council of the Ci ty, pursuant to its right and authority as contained in California Elections Code section 9222, California Government Code section 36502(b) and any other laws applicable to general law cities, hereby orders the Measure to be submitted to the qualified voters of the City at the General Municipal election to be held and consolidated with the Statewide General Election on Tuesday, November 8, 2022 . The proposed Measure shall be in the form attached hereto as Exhibit “A” to this Resolution and is incorporated by this reference as if fully set forth herein.
SECTION 3. Ballot Question. The City Council, pursuant to its right and authority, does hereby order that the ballot question for the Measure shall be presented and printed upon the ballot submitted to the qualified voters in the manner and form set forth in this Section 3. On the ballot to be submitted to the qualified voters at the General Municipal election to be consolidated with the Statewide General Election on Tuesday, November 8, 2022 , in addition to any other matters required by law, there shall be printed substantially the following question:
“Shall an ordinance be adopted amending the Milpitas
Municipal Code to establish , effective with the
November 8, 202 2 General Municipal Election, a ten
consecutive year limit on combined Mayoral and City
Councilmember service, with a six year limit on Mayoral service, followed by a two-year “cooling off” period ,
during which a person may not serve as Mayor or a
Councilmember?”
YES
NO
SECTION 4. Election Procedures.
A. The City Council consents to the consolidation of the election on this Measure with all other elections being held in the same territory on November 8, 2022, and to hold and conduct the consolidated election in the manner prescribed in Election Code Section 10418.
B. The ballots to be used at the election shall be in the form and content as required by law.
C. In accordance with Section 10403 of the Elections Code, the Board of Supervisors of Santa Clara County is hereby requested to consent to consolidation of the election on this Measure with the Statewide General Election and all other elections being held in the same territory on November 8, 2022, and to having the Registrar of Voters render such election services to the City of Milpitas as may be requested by the City Clerk of said City, the County of Santa Clara to be reimbursed in full for such services as are performed.
D. The election services which the City of Milpitas requests the Registrar of 699
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Resolution No. 2022-___
Voters, or such other official as may be appropriate, to perform and which such officer is hereby authorized and directed to perform, if said Board of Supervisors consents, include: the preparation, printing and mailing of sample ballots and guides; the establishment or appointment of precincts, voting centers, and election officers, and making such publications as are required by law in connection therewith; the fur nishing of ballots, voting booths and other necessary supplies or materials for voting centers; the canvassing of the returns of the election and the furnishing of the results of such canvassing to the City Clerk of the City of Milpitas; and the performance of such other election services as may be requested by the City Clerk.
E. The City Clerk is authorized, instructed and directed to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election.
F. That the precincts, ballot drop box locations and hours of operations, vote center locations and hours of operations, vote -by-mail procedures and timing, and election officers, and a ll other persons and procedures for the General Municipal Election shall be the same as those utilized by the County of Santa Clara; and
G. In all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections in the City.
H. Notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form, and manner as required by law.
I. All ballots shall be tallied at a central counting place and not at the precincts.
Said central counting place shall be at a County center as designated by the Registrar of Voters.
J. The Santa Clara County Registrar of Voters is hereby authorized to canvass the returns of said election.
K. The City Clerk of the City of Milpitas shall receive the canvass as it pertains to the election on the Measure, and shall certify the results to the City Council, as required by law.
SECTION 5. Arguments and Analysis.
A. The City Council authorizes (i ) the City Council or any member(s) of the City Council, (ii) any individual voter eligible to vote on the above measure, (iii) a 700
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bona fide association of such citizens or (iv) any combination of voters and associations, to file a written argument in favor of or against the City measure, in accordance with Article 4, Chapter 3, Division 9 of the Elections Code of the State of California and may change the argument until and including August 16, 2022 after which no arguments for or against the measure may be submitted to the City Clerk. Arguments in favor of or against the measure shall each not exceed 300 words in length. Each argument shall be filed with the City Clerk, signed, and include the printed name(s) and signature(s) of the author(s) submitting it, or if submitted on behalf of an organization, the name of the organization, and the printed name and signature of at least one of its principal officers who is the author of the argument.
B. The City Clerk shall comply with all provisions of law establish ing priority of arguments for printing and distribution to the voters, and shall take all necessary actions to cause the selected arguments to be printed and distributed to the voters.
C. Pursuant to Section 9280 of the Elections Code, the City Council directs the City Clerk to transmit a copy of the measure to the City Attorney. The City Attorney shall prepare an impartial analysis of the measure, not to exceed 500 words in length, showing the effect of the measure on the existing law and the operation of the measure. The City Attorney shall transmit such impartial analysis to the City Clerk, who shall cause the analysis to be published in the ballot pamphlet along with the ballot measure as provided by law. The Impartial Analysis shall be filed by the deadline set for filing of primary arguments as set forth in subsection (A) above. The impartial analysis shall include a statement indicating whether the measure was placed on the ballot by a petition signed by the requisite number of voters of by the City Council. In the event the entire text of the measure is not printed on the ballot, nor in the voter information portion of the sample ballot, there shall be printed immediately below the impartial analysis, in no less than 10-font bold type, the following: “The above statement is an impartial analysis of Ordinance or Measure ____. If you desire a copy of the ordinance or measure, please call the election official’s office at (insert phone number) and a copy will be mailed at no cost to you.”
SECTION 6. Rebuttals.
A. That pursuant to Section 9285 of the Elections Code of the State of California, when the Clerk has selected the arguments for and against the various City initiated measures which will be printed and distributed to the voters, the Clerk shall send copies of the argument in favor of the measures to the authors of the argument against, and copies of the argument against to the authors of the argument in favor. The authors or persons designated by them may prepare and submit rebuttal arguments not exceeding 250 words. The rebuttal arguments shall be filed with the City Clerk not later than August 23, 2022.
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arguments. Each rebuttal argument shall immediately follow the direct argument which it seeks to rebut.
B. That all previous resolutions providing for the filing of rebuttal arguments for City measures are repealed.
C. That the provisions herein shall apply only to the election to be held on November 8, 2022, and shall then be repealed.
SECTION 7. Placement on the Ballot. The full text of the Measure shall not be printed in the vot er pamphlet, and a statement shall be printed in the ballot pursuant to Section 9223 of the Elections Code advising voters that they may obtain a copy of this Measure, at no cost, upon request made to the City Clerk.
SECTION 8. Delivery of Resolution to County. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions. The City Council directs the City Clerk to deliver copies of this Resolution, including the Measure attached hereto as Exhibit “A”, to the Clerk of the Board of Supervisors of Santa Clara County and to the Registrar of Voters of Santa Clara County.
SECTION 9. CEQA. The City Council hereby finds and determines that the ballot Measure relates to organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment, and therefore is not a project within the meaning of the California Environmental Quality Act (“CEQA”) and the State CEQA Guidelines, section 15378(b)(5).
SECTION 10. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof.
SECTION 11. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Milpitas, California, at a regular meeting held on this _____ day of _________, 2022.
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RICH TRAN
MAYOR
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted at a regular meeting of said City Council on the _______day of _________, 2022, by the following vote:
AYES: COUNCIL MEMBERS:
NAYS: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ATTEST: APPROVED AS TO FORM:
______________________ __________________________
CITY CLERK CITY ATTORNEY
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EXHIBIT “A”
ORDINANCE NO. ____
AN ORDINANCE OF THE PEOPLE OF THE CITY OF MILPITAS,
CALIFORNIA, AMENDING CHAPTER 400 (MAYORAL AND
COUNCILMANIC TERM LIMITS) OF TITLE 1 (ADMINISTRATION) OF
THE MILPITAS MUNICIPAL CODE TO AMEND TERM LIMITS ON
MAYORAL AND CITY COUNCILMEMBER SERVICE
NOW THEREFORE, THE PEOPLE OF THE CITY OF MILPITAS DO ORDAIN AS FOLLOWS:
SECTION 1. Subject to the approval of a majority of the voters of the City of Milpitas at the scheduled election so designated by the City Council in a separate resolution placing the proposal on the ballot for such election, Chapter 400 of Title 1 of the Milpitas Municipal Code is hereby amended to read as follows:
"Chapter 400 – MAYORAL AND COUNCILMANIC TERM LIMITS.
Sections:
Section 1 – Term Limits
I-400-1 - Term Limits
A. A person may serve a combined maximum of three ten consecutive years of elective terms of service as either a City Councilmember or as the Mayor.
B. Further, a person may only serve a total of six years (three elective terms) of service as Mayor within the combined maximum ten consecutive year term limit provided in subsection (A). However, if a Councilmember is elected Mayor or the Mayor is elected Councilmember, that person may serve a combined total of no more than four consecutive elective terms.
C. At any municipal election a fter the expiration of two years following said Once a person reaches the combined consecutive elective term s limit provided in subsection (A) , such the former Councilmember or Mayor may not again seek be electedion or appointed to serve on the City Council or as Mayor until the expiration of two years following the end of the officer’s elective service.
D. If a person reaches the Mayoral term limit in subsection ( B) but has four available years of service remaining under the combined term limit provided in subsection (A), the former Mayor may not again be elected or appointed to serve as Mayor but the former Mayor may serve as a City Councilmember for one elective term (four years) and then may not serve on the City Council or as Mayor until the 704
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expiration of two years following the end of the officer’s elective service as provided in subsection (C).
E. If a person reaches the Mayoral term limit in subsection ( B) but has only two available years of service remaining under the combined term limit provided in subsection (A), the former Mayor may not again be elected or appointed to serve as either Mayor or as a Councilmember until the expiration of two years following the former Mayor’s service. The person may thereafter serve as Mayor or a Councilmember pursuant to subsection (C).
F. If a person serves a combined total of eight consecutive years (two consecutive elective terms) as a Councilmember, the Councilmember may not again be elected or appointed to serve as a Councilmember, but the former Councilmember may serve two consecutive years (one consecutive elective term) as Mayor after which he or she may not serve on the City Council or as Mayor until the expiration of two years following the end of the officer’s elective service as provided in subsection (C).
I-400-2 - Applicability to Partial Terms
For purposes of applying this Chapter, a person who serves over one half or more of either a Councilmember or Mayoral elective term shall be deemed to have served that entire elective term (all years) consecutively with the next scheduled elective term, even if there is an actual break of time in elected service. In the event one is elected Mayor during his or her tenure as Councilmember, he or she shall be deemed to have served that entire Council term for purposes of applying this Chapter.
I-400-3 – Definition of “Elective term”
A. “Elective term” shall mean:
(1) A full term of service (four years for Council members and two years for Mayor) for which a person was nominated, including as a write -in candidate, and to which he or she was elected to office at any General Municipal Election, occurring on or after November 8, 2022; or
(2) A full term of service (four years for Council Members and two years for Mayor) to which a person was appointed by the City Council in lieu of a General Municipal Election, pursuant to California Elections Code Section 10229 or similar law, occurring on or after November 8, 2022
B. “Elective Term” shall not mean any partial term to which a person has been specially elected or appointed to the office of Mayor or Council member pursuant to a recall election or to fill a mid-term vacancy, pursuant to State law.
C. Special Transitional Rules. Notwithstanding the above , if, as of the November 8, 2022 General Municipal Election:
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(1) a person has already served six consecutive years (three elective terms) as Mayor to which he or she was elected or appointed in lieu of an election in the Years 2016, 2018 and 2020, that person may not serve any further consecutive terms as Mayor but may serve one consecutive term as a Councilmember staring in the Year 2022 . If elected or appointed to th e office of Councilmember in the Year 2022 , that person may serve one term as a Councilmember and thereafter may not serve as Mayor or as a Councilmember until the expiration of two years following said consecutive terms, as outlin ed above. Such person may also not resign as a Councilmember and serve as Mayor starting in the Year 2024.
(2) a person serves eight consecutive years as a Councilmember to which he or she was elected or appointed in lieu of an elect ion in the Years 2016 and 2020, that person may not serve any further consecutive terms as a Councilmember but may serve one consecutive term as Mayor starting in the Year 2024. If elected or appointed to th e office of Mayor in the Year 2024 , that person may serve one term as Mayor and thereafter may not serve as Mayor or as a Councilmember until the expiration of two years following said consecutive elective terms , as outlin ed above . If a person serves six consecutive years as a Councilmember to which he or she was elected or appointed in lieu of an election in the Years 2016 and 2020, and was elected or appointed as Mayor in lieu of an election in the Year 2022, that person may not serve any further consecutive terms as a Councilmember but may serve the term as Mayor starting in the Ye ar 2022 and may thereafter serve one additional consecutive elected term as Mayor starting in the Year 2024. After said service, that person may not serve as Mayor or as a Councilmember until the expiration of two years following said consecutive elective terms, as outlined above.
(3) a person has already served one term as a Councilmemb er to which he or she was elected or appointed in lieu of an election in the Year 2018, that person may serve one additional consecutive term as a Councilmember starting in the Year 2022, and may thereafter serve one consecutive term as Mayor starting in the Year 2026 . The person thereafter may not serve as Mayor or as a Councilmember until the expiration of two years following said consecutive elective terms , as outlined above. If a person has already served one term as a Councilmember to which he or she was elected or appointed in lieu of an election in the Year 2018, that person may serve one consecutive term as Mayor starting in the Year 2022, and may thereafter serve two more consecutive terms as Mayor starting in the Years 2024 and 2026 or one more consecutive term as a Councilmember starting in the Year 2024. The person thereafter may not serve as Mayor or as a Councilmember until the expiration of two years follow ing said consecutive elective terms , as outlined above.
(4) a person is currently serving a first term as a Councilmember to which he or she was elected in the Year 2020, that person may serve one additional 706
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consecutive term as a Councilmember starting in the Year 2024 and may thereafter serve one consecutive term as Mayor starting in the Year 2028.
The person thereafter may not serve as Mayor or as a Councilmember until the expiration of two years following said consecutive elective terms , as outlined above. If a person is currently serving a first term as a Councilmember to which he or she was elected or appointed in lieu of an election in the Year 2020, that person may serve one consecutive term as Mayor starting in the Year 2024, and may thereafter s erve two more consecutive terms as Mayor starting in the Years 2026 and 2028 or one more consecutive term as a Councilmember starting in the Year 2026. The person thereafter may not serve as Mayor or as a Councilmember until the expiration of two years following said consecutive elective terms, as outlined above.
I-400-4 – Prohibition on Elective Service When Term Limit Reached
A. The City Clerk, or other election official authorized by law, shall not accept or verify the signatures on any nomination paper for any person, including any paper for the purpose of seeking election as a write -in candidate, nor shall he or she certify or place on the list of certified candidates, nor print or cause to be printed on any ballot, voter information guide, sampl e ballot or ballot label, the name of any person whose candidacy, if successful, will result in a new Mayoral or City Councilmember elective term that exceeds the limits set forth herein.
B. Notwithstanding section I-400-3(B) above, no person whose elected service has reached the applicable term limit set forth herein may be appointed to serve as Mayor or as a Council member, whether said appointment is in lieu of a General Municipal Election, pursuant to California Elections Code Section 10229, or to fill a vacancy in the office of Mayor or Councilmember pursuant to State law.
C. Notwithstanding section I-400-3(B) above, no person whose elected service has reached the applicable term limit set forth herein may run for special election to fill a recall or vacancy in the office of Mayor or a Council member pursuant to State law.
I-400-35 - Effective Date
In accordance with Election Code 9217, the Ordinance codified in this Chapter became effective on May 17, 1996 December _____, 2022, which was ten days after the City Council declared the result of the Election.”
SECTION 2. If any portion of this Ordinance is declared invalid by a court of law or other legal body with applicable authority, the invalidity shall not affect or prohibit the force and effect of any other provision or application of the Ordinance that is not deemed invalid. The voters of the City hereby declare that they would have circulated for qualification and/or voted for the adoption of this Section, and each portion thereof, regardless of the fact that any portion of the initiative may be subsequently deemed invalid.
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SECTION 3. To the fullest extent allowed by law, the provisions of this Ordinance shall prevail over, and supersede, all other provisions of the Municipal Code and any ordinances, resolutions or administrative policies of the City of Milpitas which are in conflict with any provision of this Ordinance.
SECTION 4. This Section shall not be repealed or amended except by a measure approved by a majority of the electors voting on the issue at a General Municipal Election, or at a special election called for that purpose.
SECTION 5. This Ordinance shall take effect only if approved by a majority of the eligible voters of the City of Milpitas voting at a Municipal General Election to be held on November 8, 2022, and shall take effect ten (10) days after the City Council has certified the results of the Municipal General Election by resolution.
SECTION 6. The Mayor is hereby authorized to attest to the adoption of this Ordinance by the People voting thereon on November 8, 2022, by signing where indicated below.
I hereby certify that the foregoing Ordinance was PASSED, APPROVED AND ADOPTED by the People of the City of Milpitas on the 8th day of November, 2022.
________________________________
RICH TRAN
MAYOR
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