678
Item # 12.
5 6
B C D E F G
Date of
Comment
Name of
commenter
Section/Subsection
Name
Description of Needed Edit
Notes/Proposed Edit to the Code Date edit made in
final document
24 25
26 27
28 29
30 31
32 33
34 35
36 37
38 39
40 41
42 43
44 9.12.23 Staff
Industrial Zone Uses
Table (XI-10-7.02-1)
Add Advanced Manufacturing to use table. Allow
by right ("P") in BPRD zone.
Advanced manufacturing was
inadvertently left out of the draft use
table
9.12.23 Staff
Industrial Zone Uses
Table (XI-10-7.02-1)
Custom and Artisan Manufacturing should be MCS
(minor conditional use permit, staff level) (not
MUP).
MUP doesn't exist in Milpitas' zoning
code
Section 9 - Metro Area Zones
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1)
Add Advanced Manufacturing to use table. Allow
by right ("P") in BPRD Metro and BPRD-R Metro
zones.
Advanced manufacturing was
inadvertently left out of the draft use
table
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1)
Small Family Chile Care Home should be NP (not
permitted) in BPRD Metro (since residential uses
are not permitted in this zone)
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1)
Add Contractor's Shop to use table and make NP
(not permitted) in all Metro Area zones
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1)
Trade and Vocational Schools should be C
(conditionally permitted) in BPRD Metro and BPRD-
R Metro zones (same as colleges and universities)
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1)
Add Conference Center to use table, and made C
(conditionally permitted) in BPRD Metro and BPRD-
R Metro zones
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1)
Personal Services should be C (conditionally
permitted), instead of NP (not permitted) in BPRD
Metro and BPRD-R Metro zones
9.12.23 Staff
Metro Area Zones
Uses Table (XI-10-
9.02-1), footnote 6
Include same standard for warehousing as in use
table for "regular" BPRD zone (max 50 percent of
floor area of primary use)
Per public comment, advanced
manufacturing/R&D uses frequently
require large areas for storage of
materials and/or finished goods prior to
distribution
Section 53 - Off-Street Parking Requirements
Subsection 54.18 - Housing Element Sites
Subsection 56.05 - Nonconforming Parcels
679
Item # 12.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Receive Presentation from Staff on Storm Drain System Revenue Requirements Analysis (Staff Contact: Christian Di Renzo, Public Works Director, 408-586- 2602)
Category: Community Services and Sustainable Infrastructure Meeting Date: 10/3/2023
Recommendation: Receive an informational presentation on the stormwater revenue requirements analysis and provide feedback to staff.
BACKGROUND:
The City of Milpitas owns and maintains an extensive storm drain system network (System), consisting over 100 miles of pipeline ranging from 12-inches to 36-inches, approximately 1,400 manholes, 260 trash capture devices and 3,500 storm drain inlets. The City of Milpitas is over 60 years old with some of the infrastructure even older, and some of the older storm drainage infrastructure, particularly pumping equipment, are reaching the end of their useful life. The System collects surface stormwater runoff and conveys the water to 13 pump stations, which then release stormwater into local creeks and flows out to the lower San Francisco Bay. This system of inlets, pipes, and pump stations is critical infrastructure that protects our community during rain events and prevents flooding of our streets and neighborhoods. An essential element of responsibly operating the System is short -term and long -term asset management and planning, which includes on -going maintenance and systematic replacement of infrastructure.
In order to operate and maintain this storm drain system, the City is regulatorily required to comply with the requirements of the California Regional Water Quality Control Board San Francisco Bay Region Municipal Regional Stormwater NPDES Permit (Municipal Regional Permit, MRP) . The most recent MRP beca me effective on July 1, 2022 and almost all cities, counties, and flood control districts in the Bay Area are subject to this permit and its requirements. The goal of the MRP is to protect the water qualit y and health of local waterways, creeks, and San Francisco Bay by prohibiting the discharge of anything but stormwater from storm drain systems and requiring program implementation and controls for specific pollutants that can be washed through the systems with stormwater such as pesticides, trash, mercury, PCBs, bacteria, and sediment, etc. The City continues to implement best management practices (BMPs) to control and reduce polluted stormwater and non -stormwater discharges to storm drains and watercourse s during operation, inspection, and routine repair and maintenance activities of municipal facilities and infrastructure; sidewalk and other hardscape repairs and cleaning; stormwater pump station operation and maintenance; Corporation yard activities; con structions sites; and pesticide toxicity control. The new MRP includes increasingly aggressive requirements to reduce pollutant loads that will require funding such as constructing new Green Stormwater Infrastructure, achieving 100% trash load reduction by 2025, and new requirements to control for PCBs and mercury.
On August 9, 2022, the City Council adopted the Storm Drain Master Plan (Plan). The adopted Plan prioritized rehabilitation and replacement capital improvement projects (CIP) in order to avoid System failures and to increase conveyance capacity. The total CIP cost s for the System are approximately $53 million (2020 dollars). This value represents both high priority CIPs ($40 million) and scheduled replacements through 2050 ($13 million). Low priority CIPs and scheduled replacements beyond 2050 are excluded from this revenue requirements analysis. Unlike the water and sewer utilities, the stormwater utility (Utility) does not have a dedicated funding source. The General Fund is currently the primar y source of funding for expenditure incurred by the System, including operation and maintenance (O&M) expenses. The General Fund contribution to the Utility is $500,000 annually, however this is a target and funds may be re -appropriated away from the Utility in any given budget cycle.
Consistent with the direction provided by City Council, on November 12, 2022, the City entered into a 680 Item # 13.
Professional Services Agreement with SCI Consulting Group for Storm Drain Fee Analysis Services. SCI performed a preliminary analysis exploring various revenue stream options to fund the City’s System needs.
The analysis incorporated the City’s high priority CIP projects, as identified in the Plan, preliminary O&M program costs and costs associated with regulatory compliance.
On May 16, 2023, SCI and staff presented to Council the project overview and preliminary findings of the analysis. This presentation was informational only and intended to solicit Council engagement and feedback.
ANALYSIS:
The System requires a reliable and dedicated funding source to provide stormwater conveyance to Milpitas customers in a way which protects public health and safety and meets ever increasing regulatory requirements. As such, annual revenues should be adequate to cover the costs incurred for O&M, MRP regulatory compliance programs, CIP and establishing and maintaining an operational reserve. To determine an Annual Storm Drainage Fee (Fee) amount, the financial needs must be expressed as an annual revenue requirement. O&M and regulatory compliance revenue needs are estimated as an annual formula based on existing costs associated with operations, preventative maintenance, MRP program costs and programmed annual system improvements. The CIP needs in the Plan are expressed as a series of lump sum present values and must be converted into an annual cost to form the basis for the Fee. The Fee will vary depending on the financing approach taken. SCI and staff have worked to fine tune the revenue requirements and develop various preliminary funding scenarios for the System. The scenarios include funding needs analysis ranging from maintaining the status quo to fully funding the O&M and MPR compliance programs and CIP projects. Since the City has not yet determined the precise financing approach to be used, the fees presented are intended to provide an estimate of potential fee impacts corresponding to each scenario.
Scenario 1:Status Quo
The status quo scenario provides funding for basic-bare minimum O&M and MRP compliance of the system (i.e. staff time, electricity and fuel costs, minor repairs and maintenance) , While this would ensure that the City is performing proactive preventive maintenance and tracking the requirements for the Water Board and NPDES permits, additional funding would be r equired over time to ensure that major CIP project needs are met to avoid adverse impacts on the system.
Scenario 2: Status Quo + Proactive O&M + MRP Compliance Proactive O&M needs include costs for day-to-day maintenance, engineering and rehabilitation/replacement of system components to extend the life of existing infrastructure. The annual revenue needs associated with proactive O&M in FY24/25 is estimated to be approximately $2.1 million.
Proactive MRP compliance needs include cost s for on -going weekly/monthly/annual inspections of the System and its appurtenances to ensure stormwater runoff flowing into creeks and the Bay meets or exceeds NDPES requirements. This program also includes review, inspection and education for private sy stems to ensure runoff of rainwater and/or any other flows into drains, which end up in the City’s System, remain clean.
The annual revenue needs associated with proactive MRP compliance in FY24/25 is estimated to be approximately $865,000.
Scenario 3: Proactive O&M + MRP Compliance + High Priority CIP Only The City of Milpitas is over 60 years old, and some of its older storm drainage infrastructure, particularly pumping equipment, are reaching the end of its useful life. Over the course of the next seve ral decades, major equipment replacements will be needed, and the City will need to set aside sufficient funds for annual facility maintenance and a systematic long -term replacement program. The Plan identified CIP projects totaling $53 million (2020 dollars) through 2050. The CIP costs include:
Complete overhaul of two pump stations
New pipelines to address flooding
Rehabilitation/replacement of existing pipelines
Systematic programmed repair and replacement of pump station components to maintain eff iciency and prolong life 681
Item # 13.
Of the $53 million CIP costs identified in the Plan, $40 million are high priority projects. These projects will replace or rehabilitate infrastructure fundamental to the System and are recommended to be completed in the next 10 to15 years. The projects include:
Complete replacement of Jurgens and Penitencia (built in 1989 and 1960, respectively) pump stations at an estimated cost of $25 million
Five miles of new pipes or upsizing of existing pipes to alleviate stresses on the storm drain infrastructure at an estimated cost of $15 million
This scenario does not include CIP costs associated to systematic programmed repair and replacement of pump stations.
Scenario 4: Proactive O&M + MRP Compliance + All Plan Recommended CIP Scenario 4 is the same as scenario 3 above, however it includes the entire $53 million in CIP funding needs, inclusive of the systematic programmed repair and replacement of pump stations, which are estimated to cost $13 million through 2050.
Financial Analysis
A comparative analysis was performed using a 25-year forecast horizon. User rates were calculated to fund the O&M and MRP compliance costs and complete CIP projects reco mmended by the Plan. Assumptions included the following:
Only the High Priority projects were included
O&M costs were assumed to increase 3.1% annually
Capital costs (for uncompleted projects) were assumed to escalate at 2.9% annually, Interest on debt (should it be obtained for capital) is assumed to be 6%, and An operating reserve is maintained at 30% of O&M costs.
A standard industry practice for calculating storm fees is to use the typical single-family residential parcel as a benchmark, which is called the single-family equivalent (SFE). The metric for this fee structure is impervious surface area. This becomes the basis for calculating the SFEs for all other types of land uses. In order to accomplish this, a representative sample of each land use category will be studied through aerial photographs to measure the actual impervious surface area in order to calculate the fee commensurate to the SFE.
The table below shows various scenarios SCI and staff evaluated, the correspondin g annualized revenue needs and the estimated fee for an SFE, commensurate to the various elements of the System it will fund.
Scenario
Estimated Annual
Need
FY 2024/2025
Estimated Annual per
Parcel Fee
FY 2024/2025
Estimated Monthly Per
Parcel Fee
FY 2024/2025
1. Status Quo $1 million $27.20 $2.27
2. Proactive O&M + MRP
Compliance
$3 million $75.70 $6.31
3. Proactive O&M + MRP
Compliance + High Priority
CIP Only
$5.1 million $127.30 $10.61
4. Proactive O&M + MRP
Compliance + All Plan
Recommended CIP
$5.9 million $147.10 $12.26
682
Item # 13.
Community Opinion Polling
Upon direction of City Council, staff would proceed with a community opinion poll. A community poll and opinion research phase would assist the City in gauging ballot support for the Fee. Additionally, the opinion research will provide insight into the community’s priorities, which will enable the City to finalize a set of services and improvements to best meet the community’s needs.
Financial Engineering – Fee Report
SCI will prepare a comprehensive Fee Report which will include a detailed description of the services and improvements to be funded by the proposed fee, the rationale used for the fee structure, and calculations of the specific proposed fee amount for each parcel in the City.
Implementation
Once the Fee Report and opinion polling are complete, the traditional path by which the implementation of a storm fee property-related fee includes the following steps:
1. City Council review of the community opinion poll and direction to staff to proceed (or to not proceed) with next steps to implement the funding measure process
2. City Council approval of the Fee Report, establishing a public hearing date and time and authorizing the mailing of notices
3. Conducting a public hearing after mailing of notices
4. City Council authorization for mailing of ballots (if no protest exists)
5. Printing and mailing of ballots
6. Tabulation of ballots after close of ballot period
7. City Council certification of results of the balloting, authorizing the fee structure if support is over 50%
Staff will work with SCI to complete the final Fee Report that would serve as the defensible basis for any recommended fees. This activity is not estimated to alter the draft fees noted above by an appreciable magnitude. The revenue requirement needs to support the System, fund its CIP, and ensure compliance with the MRP, will be discussed and considered further within the broader context of the City’s other revenue needs when this topic comes before City Council in late October or November 2023 Next Steps
As described above, the next steps include developing a plan for conducting community opinion polling and completing the Financial Engineering Study (Fee Report) . Staff will return to Council at a future date and seek Council’s approval to proceed with the community opinion polling phase. If Council votes to proceed, staff and the Consultant will initiate a statistically valid community opinion poll and develop a draft fee report.
The results of the opinion poll and draft fee report will be presented to Council prior to seeking direction on further implementation steps.
POLICY ALTERNATIVE(S):
This item is presented for City Council information and discussion only. No policy action is recommended at this time.
FISCAL IMPACT:
There is no fiscal impact at this time.
California Environmental Quality Act (CEQA):
The proposed action, to hold a study session, does not itself constitute a “project” under CEQA because it would not itself affect the environment in any way. Even if the proposed project were a project under CEQA, the proposed action would be statutorily exempt under 14 Cal. Code Regs. § 15262 (exempting feasibility and planning studies).
683
Item # 13.
RECOMMENDATION:
Receive an informational presentation on the stormwater revenue requirements analysis and provide feedback to staff.
Attachment(s):
None
684
Item # 13.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve Employment Agreement for the City Manager (Staff Contact: Nick Raisch, Human Resources Director, 408-687-5086)
Category: Leadership and Support Services
Meeting Date: 10/3/2023
Recommendation: Approve Employment Agreement for the City Manager.
Background:
The previous City Manager’s agreement ended in June of 2023, and the City Council appointed Ned Thomas as Acting City Manager on June 20, 2023.
The City Council hired an executive recruiting firm and conducted an open and competitive nationwide recruitment process. At the conclusion of this process, the Council selected their top candidate to serve as the next City Manager of the City of Milpitas. The Council through assigned staff have negotiated an employment agreement, and the draft agreement is before the Council tonight for adoption.
Analysis:
The employment agreement provides the following:
Term: The agreement is effective upon adoption by Council through June 30, 2025.
Salary: The City Manager shall have an annual salary of Two Hundred and Seventy-Nine Thousand Dollars ($279,000).
Benefits: Shall be consistent with those provided for unrepresented executive employees except where specifically included/excluded within this agreement.
Professional Development: The City Manager will be allowed additional reimbursement for the pursuit of higher education in alignment with the City’s goals and the continued enhancement of his skills and knowledge within the areas of public administration. ($10,000 per year/$10,000 upon completion)
Miscellaneous: This agreement provides for an “At-Will” employment relationship between the City Manager and the City including severance equal to that articulated in the Muni Code (VI-3-4.00).
The full agreement is attached to this agenda report.
Policy Alternatives:
Alternative 1: The City Council could choose not to approve the employment agreement or seek modifications to the agreement.
Pros: None, as City Council has directed the preparation of this agreement and it represents the good faith negotiations between the parties.
Cons: If the City Council does not approve the employment agreement, then the City Council will need to provide additional direction to staff.
685
Item # 14.
Reason not recommended: The City Council should approve the employment agreement as the City Council has directed its preparation and negotiation and it represents the completion of the negotiations.
Fiscal Impact:
The City as a part of the FY23-24 budget process funded the City Manager position. No changes to the FY23- 24 budget are required to adopt and implement this appointment.
California Environmental Quality Act:
The action is an organizational or administrative activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.
Recommendation:
Approve Employment Agreement for the City Manager
Attachments:
1) Employment Agreement
686
Item # 14.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is between the City of Milpitas, a municipal corporation (the “City” or “Employer”) and (“Employee”). It is effective on the latest date next to the signatures on the last page (“the Effective Date”).
This Agreement is entered into on the basis of the following facts, among others:
A. The City desires to employ the professional services of Employee as City Manager of the City, as provided by the Milpitas Municipal Code.
B. The City Council and Employee desire to establish a reasonable, professional and trustworthy employment relationship, subject to the terms and conditions set forth in this Agreement pertaining to compensation and benefits, performance evaluations, and any related matters.
BASED UPON THE FOREGOING, THE CITY AND EMPLOYEE AGREE AS FOLLOWS:
1. Employee Appointed.
(a) The City appoints and employs Employee as City Manager, and Employee continues to accept the appointment and employment as of the Effective Date.
2. Duties of Employee.
(a) Employee shall perform the duties established for the City Manager by State law, the Milpitas Municipal Code, the City Manager job description, the directions of the City Council, or as otherwise provided by law, ordinance, or regulation. The provisions of the Municipal Code pertaining to the City Manager and the City Manager job description, as may be amended from time to time, are attached hereto as Exhibit A and are hereby made a part of this Agreement. Such duties shall include, but not be limited to:
(i) To see that all laws and ordinances of the City are duly enforced and that all franchises, permits, licenses and privileges granted by the City are faithfully performed and observed;
(ii) To control, order and give directions to all directors of departments and to 687
Item # 14.
subordinate officers and employees of the City under his jurisdiction through their department directors, and to transfer employees from one department to another; (iii) To attend all meetings of the City Council unless excused there from by the City Council;
(iv) To recommend to the City Council for adoption such measures and ordinances as he deems necessary or expedient;
(v) To keep the City Council at all times fully advised as to the financial conditions and needs of the City;
(vi) After receiving feedback from the City Council, to prepare and submit to the City Council an annual recommended budget and to administer the adopted budget. (vii) To purchase or cause to be purchased all supplies for all of the departments or divisions of the City. No expenditures, except those for legal services, shall be submitted or recommended to t he City Council except on report and approval of the City Manager;
(viii) To make investigation into the affairs of the City and any department or division thereof and any Contract or the proper performance of any obligation running to the City;
(ix) To oversee and direct the investigation of all complaints in relation to matters concerning the administration of the government of the City and in regard to the services maintained by public utilities in the City and to see that all franchises, permits and privileges granted by the City are faithfully observed; (x) To execute general supervision over all public buildings, public parks, streets and other public property which are under the control and jurisdiction of the City Council;
(xi) To devote his/her entire working time, thought and energy to the duties and interests of the City;
688
Item # 14.
(xii) To make reports and initiate recommendations as may be desirable or as requested by the City Council; and
(xiii) To perform such other duties and exercise such other powers as may be delegated to him/her from time to time by ordinance, resolution or other action of the City Council.
(xiv) When acting in his/her official capacity as City Manager, respond to all media and community inquiries in alignment with the City Council’s approved values, visions, and goals, and exclusively in the best interests of the City. (b) Full Energy and Skill. Employee shall faithfully, diligently, and to the best of Employee's abilities, perform all duties that may be required under this Agreement. Employee agrees that Employee has a duty of loyalty and a general fiduciary duty to the City. Employee shall devote the whole of Employee's working time, skill, experience, knowledge, ability, labor, energy, attention, and best effort exclusively to the City’s business and affairs. Prior to undertaking any secondary activities for which Employee receives compensation, Employee shall disclose those activities to the Council. (c) No Conflict. Employee shall not engage in any employment, activity, consulting service, or other enterprise, for compensation or otherwise, which is actually or potentially in conflict with, inimical to, or which interferes with the performance of Employee’s duties.
Further, Employee shall not, during the term of this Agreement, individually, as a partner, joint venture, officer or shareholder, invest or participate in any business venture conducting business in the corporate limits of the City of Milpitas. (d) Outside Activities. Consistent with subdivision 2(a) above, the Employee’s primary employment is with the City. Any outside activities for which the Employee receives compensation from a third party shall be disclosed, in advance, to the City Council.
Employee is expected to take personal leave (i.e., vacation time) for any outside activities of this nature.
689
Item # 14.
3. Hours of Work.
The City Manager is an exempt employee but is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager’s position. The City Manager does not have set hours of work as the City Manager is expected to be reasonably available to the City Council with support and coverage by the Assistant or Deputy City Manager at all times. It is recognized that the City Manager must devote a great deal of time to the business of the City outside of the city’s customary office hours, and to that end, the City Manager’s schedule of work each day and week shall vary in accordance with the work required to be performed and in accordance with any specific direction provided by the City Council.
4. Term.
The term of this Agreement shall be from the Effective Date through June 30, 2025, unless terminated earlier by either party in accordance with the provisions set forth in Section 12, or unless extended as authorized by this Section. The City Council shall meet annually on or around each anniversary of the Effective Date to consider a one-year extension to the Agreement.
5. Annual Evaluation.
In the first year of the term of this Agreement, the City Council shall conduct an evaluation of Employee’s performance within six months of the Effective Date to establish working relationships, norms, opportunities to be successful, and goals for coming year, then followed on a six-month basis for the term of the agreement. The City Manager shall be responsible for placing on a City Council agenda the bi-annual evaluation every six months. The City Council shall conduct an evaluation of Employee’s performance and provide guidance and direction in accordance with the specific criteria developed by the City Council , specific criteria for evaluation can be gained through a closed session with the full City Council or through the City Manager’s regular one on one meetings with individual members of the Council . At the performance evaluation on or near Employee’s anniversary as City Manager, Employee may be eligible to receive an increase in Base Salary, as determined by the City Council in its sole discretion. Employee may be eligible for the first increase on Employee’s initial six-month performance evaluation, and then annually, dependent on a performance evaluation to precede any consideration of a salary adjustment. Employee is 690
Item # 14.
not automatically entitled to any increase, which is subject to the sole discretion of the Council. In addition to an established evaluation, the Council has the discretion to provide Emp loyee with an evaluation of performance at other times chosen by the Council.
At the initial six-month performance evaluation, Employee may be eligible to receive an increase in Base Salary, as determined by the City Council in its sole discretion.
6. Compensation.
(a) Base Salary. Employee shall receive the annual Base Salary of Two-Hundred Seventy Nine Thousand Dollars ($279,000 .00), (_________________________________________) payable on a pro-rata basis in the same manner as all full time City employees, and subject to all applicable payroll taxes and withholdings.
(b) COLA Adjustments. Whenever a cost of living adjustment or other non-merit based salary increase is provided to other miscellaneous unrepresented executive staff, the City Council shall consider whether it is reasonable and appropriate to grant the highest cost of living increase received by any miscellaneous unrepresented employee groups to the Employee’s Base Salary to avoid compaction. No salary adjustment is guaranteed. All adjustments are subject to the sole discretion of the City Council. Employee shall be obligated to inform the City Council of any relevant adjustment provided to other miscellaneous unrepresented executive staff.
(c) Reduction in Salary or Benefits. If the City reduces the Employee’s Base Salary, or any benefit described in Sections 8 to 11 of this Agreement, in a percentage that is greater than the average reduction of all miscellaneous unrepresented executive staff, such action shall constitute a termination of this Agreem ent without Cause under Section 1 1 of this Agreement.
7. Regular Benefits and Allowances.
(a) Employer agrees to provide and pay the City allowance for vision, dental and comprehensive medical health insurance for Employee and his/her dependents, if any, 691
Item # 14.
equal to that which is provided to all other full-time miscellaneous unrepresented executive staff of Employer. The City contribution toward health insurance shall be equal to that which is provided to all other miscellaneous unrepresented executive staff of Employer as specified in the applicable Unrepresented Employee Benefit Handbook (“Benefit Handbook”), dated July 1, 20 23, or any amendment thereto or replacement thereof.
Similarly, Employee shall receive short term and long-term disability insurance coverage while this Agreement is in force, subject to any contributions required of unrepresented miscellaneous unrepresented executive staff.
8. Additional Deferred Compensation.
(a) As part of Employee’s annual base compensation, City agrees to provide a Section 401a deferred compensation program which will be administered by Mission Square Retirement, and to pay into such program for Employee’s benefit monthly, an amount equal to that for miscellaneous unrepresented staff commencing with the Effective Date of this Agreement. For the term of this agreement there will be no employee contribution to the 401a plan.
9. Retirement Benefits.
Employer agrees to enroll Employee into the California Public Employees Retirement System (“CalPERS”) consistent with other City employees.
10. Additional Benefits and Allowances.
In addition to the benefits already specified in this Agreement, Employee shall receive the same benefits afforded to miscellaneous unrepresented executive staff, including and not limited to:
(a) Vacation; Sick Leave
(i) Vacation. Employee shall accrue and be eligible to use vacation days in accordance with the City’s established vacation policy.
(ii) Sick Leave. Employee shall be entitled to use and accrue sick leave in accordance with established City policy.
692
Item # 14.
(b) Automobile. Employee shall receive a monthly vehicle allowance equal to that which is provided to all other miscellaneous unrepresented executive staff of Employer as specified in the applicable Unrepresented Employee Benefit Handbook (“Benefit Handbook”), dated July 1, 2023, or any amendment thereto or replacement thereof. (c) Cellular Phone. Employee shall receive a City cell phone for use City work purposes. (d) Professional Development. Employer expects the Employee to continue to develop the professional technical and leadership skills and knowledge necessary to serve as City Manager. To that end, Employee is expected to continue membership with the International City Managers Association. Employee is expected to attend national, state or local regular conferences, trainings and other educational opportunities to continue to hone the skills consistent with the City Manager job description. The City will allow Employee reasonable time away to participate in these professional development opportunities and Employer shall pay for these training opportunities as provided for in this subsection subject to City Council’s budget approval. The City shall provide Employee with ten thousand dollars ($10,000) per year for qualified professional development reimbursement or tuition reimbursement, so long as the reimbursable class, training, or other activity, in the sole discretion of the City Council, tends to develop the professional technical and leadership skills and knowledge necessary to serve as City Manager. City agrees to a single lump sum payment to employee, not to exceed ten thousand dollars ($10,000), should employee achieve an advanced degree during the term of this Agreement. For the purposes of this agreement, an advanced degree shall constitute a Masters level or Doctoral level degree from a college or university accredited by the U.S. Department of Education.
11. Termination of Employment.
(a) No property Interest/Cause Defined. Employee understands and agrees that Employee has no constitutionally-protected property or other interest in Employee’s employment as City Manager. Employee understands and agrees that Employee works at the will and pleasure of the City Council and that Employee may be terminated, or asked to 693
Item # 14.
resign, at any time, with or without Cause, by a majority vote of its members. Notice of termination shall be provided to the City Manager in writing. As used in this Agreement, Cause shall only mean any of the following:
(i) Conviction of, or plea of guilty or nolo contender to, any crime or offense (other than minor traffic violations or similar offenses) which is likely to have a material adverse impact on the City or on the Employee’s reputation; (ii) Proven failure of the Employee to observe or perform any of his/her duties and obligations, if that failure continues for a period of fifteen (15) business days from the date of his/her receipt of notice from the City Council specifying the acts or omissions deemed to amount to that failure;
(iii) Conviction of any crime involving an “abuse of office or position,” as that term is defined in Government Code Section 53243.4;
(iv) Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body at a Brown Act compliant meeting; and (v) Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of City or its organizational units; (b) is detrimental to employees or public safety, or (c) violates the City’s properly-established rules or procedures.
(b) Termination Immediately Before or Following City Council Election. No action by the City Council to terminate Employee, other than for Cause, will be made within ninety (90) days before a regular City Council election or within six (6) months immediately following a regular City Council election. Nothing in this subsection alters the “at will” status of Employee’s employment with the City. Any deliberation or decision by the City Council not to extend or renew this Agreement during the above specified period shall not be an action to terminate Employee for the purposes of this section. (c) Notice Required of Employee . Employee may voluntarily terminate employment at any time by giving not less than sixty (60) days’ notice. (d) Severance Pay. If Employee is asked to resign or is terminated without Cause, then Employee shall be eligible to receive severance as outlined in Municode VI -3-4-.00.
Any severance and benefits paid shall be subject to state law requirements codified by Government Code Section 53260. This cash payment will be made on a pro -rated, monthly basis over the number of months involved, subject to termination of the severance requirement set forth below. Employee shall also be paid for any accrued, but unused, vacation. In the event of termination or resignation from employment or the non -renewal of this Agreement, sick leave upon termination shall be treated in 694
Item # 14.
accordance with the Benefit Handbook. Eligibility for such severance payment is expressly conditioned upon Employee’s execution of (i) a waiver and release of any and all of Employee’s claims against City approved by the City Attorney , (ii) the expiration of any statutory waiting period necessary for such release to become effective, and (iii) a covenant not to sue. All normal payroll taxes and withholdings as required by law shall be made with respect to any amounts paid under this section.
Employee expressly agrees to provide notice to the City within two (2) business days of accepting employment el sewhere, and the City’s obligation to pay any severance benefit to Employee shall terminate upon Employee’s acceptance of such alternative employment.
(e) Ineligibility for Severance under Certain Conditions. If the termination of Employee is for Cause (as de fined above) or if Employee voluntarily resigns, Employee is not eligible for and will not receive any severance. If Employee is terminated without Cause, then Section 7(d) above shall control.
(f) Communications Upon Termination . In the event that Employer te rminates the Employee for any reason or no reason, the Employer and Employee agree to undertake reasonable efforts to issue a joint press release or statement, the content of which is mutually agreeable to the Employer and Employee. The joint press release or statement shall not contain any text or information that is reasonably considered to be disparaging to either party. For purposes of this subdivision only, “party” includes City Council members in the office at the time of termination and miscellaneous unrepresented executive employees. If the parties are able to agree on a joint statement, any party may verbally repeat the substance of the joint press release or statement in response to any inquiry.
12. Statutory Requirements.
(a) This Agreement shall be deemed to incorporate by reference the provisions of Sections 53243 et seq. of the Government Code, as it may be amended or renumbered. (b) Compliance with Government Code §§53243, 53243.1, & 53243.2. If Employee is convicted of a crime involving an abuse of the Employee’s office or position, all of the following shall apply:
(i) if Employee is provided with administrative leave pay pending an investigation, Employee shall be required to fully reimburse the City for such amounts paid; 695
Item # 14.
(ii) if the City pays for the criminal legal defense of Employee (which would be in its sole discretion, as it is not generally required to pay for a criminal defense), Employee shall be required to fully reimburse City such amounts paid; and (iii) if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City or void if not yet paid to Employee.
(iv) For this subsection, “abuse of office or position” means either (1) an abuse of public authority, including waste, fraud, and violation of the law under color of authority, or (2) a crime against public justice, including but not limited to a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code.
13. Payment of Expenses of Employment.
The City shall pay the following usual and customary employment expenses. (a) The cost of any fidelity or other bonds required by law for the City Manager. (b) Subject to budget approval, the cost of attending conferences or other events (i.e. retirement dinners, out-of-town meetings, professional memberships and seminars, etc.) necessary for the proper discharge of Employee’s duties. The City will not reimburse Employee for any expenses related to membership in service clubs and will not encourage or require service club membership.
14. Miscellaneous.
(a) Notices. Notices given under this Agreement shall be in writing and shall be:
(i) served personally; or
(ii) sent by electronic mail (provided a hard copy is mailed within one (1) business day); or
(iii) delivered by first-class United States mail, certified, with postage prepaid and a return receipt requested; or
(iv) Sent by Federal Express, or some equivalent private overnight delivery service. 696
Item # 14.
Notices shall be deemed received at the earlier of actual receipt or three (3) days following deposit in the United States mail, postage prepaid.
Notices shall be directed to the addresses shown below, provided that a party may change such party's address for notice by giving written notice to the other party in accordance wit h this subsection.
CITY:
City of Milpitas Attn: Mayor
455 E. Calaveras Blvd.
Milpitas, CA 95035
EMPLOYEE:
(b) Entire Agreement/Amendment. This Agreement constitutes the entire understanding and agreement between the parties as to those matters contained in it, and supersedes any and all prior or contemporaneous agreements, representations and understandings of the parties. This Agreement may be amended at any time by mutual agreement of the parties, but any such amendment must be in writing, dated, and signed by the parties and attached hereto. (c) Severability. In the event any portion of this Agreement is declared void, such portion shall be severed from this Agreement and the remaining provisions shall remain in effect, unless the result of that severability would be to substantially alter this Agreement or the obligations of the parties, in which case this Agreement shall be immediately terminated. (d) Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this Agreement shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by the parties. (e) Representation by Counsel. The parties acknowledge and agree that they were, or had the opportunity to be, represented individually by legal counsel with respect to the matters that are the subject of this Agreement and that they are fully advised with respect to their respective rights and obligations resulting from signing this Agreement.
(f) Governing Law and Venue. This Agreement shall be governed by and construed in accordance 697
Item # 14.
with the laws of the State of California. Employee and City agree that venue for any dispute shall be in Santa Clara County, California.
(g) Section Headings. The headings on each of the sections and subsections of this Agreement are for the convenience of the parties only and do not limit or expand the contents of any such section or subsection.
(h) No Assignment. Employee may not assign this Agreement in whole or in part.
Dated: CITY OF MILPITAS
By
Carmen Montano, Mayor
Dated: EMPLOYEE
By
Approved as to Form:
_____________________________________
Michael Mutalipassi, City Attorney
698
Item # 14.