Ordinance No. ______
5 THE FOREGOING ORDINANCE was introduced at a regular meeting of the St. Helena City Council on the ___ day of _________, 2022, and was adopted at a regular meeting of the St.
Helena City Council on the ___ day of _________, 2022, by the following vote:
Mayor Ellsworth: _______
Vice Mayor Dohring: _______
Councilmember Chouteau: _______
Councilmember Hardy: _______
Councilmember Hall: _______
APPROVED:
Geoff Ellsworth, Mayor
ATTEST:
CITY OF ST. HELENA
Cindy Tzafopoulos, City Clerk
I, CINDY TZAFOPOULOS, CITY CLERK of the City of St. Helena, California, do hereby certify that the foregoing Ordinance was regularly introduced and placed upon its first reading at a regular meeting of the City Council on the ___ day of _________, 2022. That thereafter said Ordinance was duly adopted and passed at a regular meeting of the City Council on the ___ day of _________, 2022, by the following vote:
Mayor Ellsworth: _______
Vice Mayor Dohring: _______
Councilmember Chouteau: _______
Councilmember Hardy: _______
Councilmember Hall: _______
Agenda Item #12.2.
CITY OF ST. HELENA
ORDINANCE NO. _____________
AN ORDINANCE ORDERING THE SUBMISSION OF A PROPOSITION INCURRING BONDED INDEBTEDNESS TO THE QUALIFIED VOTERS OF THE CITY OF ST.
HELENA AT THE GENERAL MUNICIPAL ELECTION TO BE HELD ON JUNE 7, 2022, FOR THE PURPOSE OF FINANCING THE COST OF THE ACQUISITION,
CONSTRUCTION AND IMPROVEMENT OF CERTAIN MUNICIPAL IMPROVEMENT
PROJECTS
The City Council (the “City Council”) of the City of St. Helena (the “City”) hereby ordains as follows:
SECTION 1. PURPOSE AND INTENT
Pursuant to the authority provided by the California Government Code and California Elections Code, the City Council proposes to order the submission of a proposition authorizing the City to issue general obligation bonds (the “Bonds”) to the qualified voters of the City at the general municipal election to be held on June 7, 2022.
SECTION 2. FINDINGS
The City Council hereby makes the following findings with respect to the proposed measure for the Bonds:
A. On February 8, 2022, the City Council adopted, by a two-thirds vote of all its members, a resolution entitled “Resolution Determining that the Public Interest and Necessity Demand the Acquisition, Construction and Improvement of Municipal Improvement Projects, and Their Financing Through the Issuance of General Obligation Bonds,” pursuant to which the City Council has found and determined that the public interest and necessity demand the issuance of general obligation bonds to finance the cost of municipal improvement projects.
B. In order to provide for the issuance by the City of general obligation bonds to provide financing for the municipal improvement projects, it is necessary for the City Council to adopt an ordinance ordering the submission of the proposition of incurring bonded indebtedness for such purpose to the qualified voters of the City at a municipal election.
C. The City Council desires to submit said ballot measure to the qualified voters of the City at the regular election to be held in the City on June 7, 2022, and to consolidate the bond election with other elections held within the City on that date.
Agenda Item #12.2.
Ordinance No. ______
2 SECTION 3. CALL FOR ELECTION
The City Council hereby orders that there be submitted to the qualified voters of the City a proposition on incurring bonded indebtedness for the purposes set forth in this Ordinance, at the regular election to be held on June 7, 2022.
SECTION 4. BALLOT PROPOSITION
The City Council hereby submits to the qualified voters of the City, at the regular election to be held on June 7, 2022, a proposition on issuing the Bonds. The statement of the measure shall be in substantially the form set forth in the resolution of the City placing the measure on the ballot.
SECTION 5. OBJECT AND PURPOSE OF BONDS
The object and purpose of the Bonds is to finance the costs of municipal improvement projects of the City (the “Improvements”), consisting of stormwater system improvements, including but not limited to replacing pipes, drains, culverts and other components of the system, potable drinking water system improvements, including but not limited to Bell Canyon Spillway repairs, water main rehabilitation and replacements, valve replacements, Bell Canyon Phreatic Surface Monitoring, lower reservoir rehabilitation, and replacing pipes to increase fire flow, sewer system improvements, including but not limited to replacing pipes and making Crinella Lift Station improvements, stormwater system improvements, including but not limited to replacing pipes, drains, culverts and other components of the system, and recycled water system improvements, including but not limited to providing pump station and pipes to distribute recycled water, all as acquired or constructed by the City to protect local water quality/supply, improve drought resilience, keep sewage, pollution, trash and chemicals from local rivers, creeks and streams, and protect safe, sustainable, local water sources.
The authorized Improvements also include all work, facilities and expenditures necessary and incidental to the projects described above. Examples of such work, facilities, and expenditures include, but are not limited to: costs of design, engineering, architect and other professional services, inspections, site preparation, utilities, landscaping, construction management and other planning and permitting, legal, accounting and similar costs; a customary construction contingency; demolition and disposal of existing structures; rental or construction of storage facilities and other space on an interim basis for materials and other equipment and furnishings displaced during construction; addressing unforeseen conditions revealed by construction or renovation, and other necessary improvements required to comply with existing building codes and other applicable law, including the Americans with Disabilities Act; costs of the bond election; bond issuance costs; project administration during the duration of such projects; and financing and interest costs on the Bonds.
The final costs, locations, designs, layouts and other components of the Improvements will be determined as plans are finalized, construction bids are awarded, and projects are completed.
Therefore, the City Council cannot guarantee that the Bonds will provide sufficient funds to allow completion of all needed Improvements.
SECTION 6. ESTIMATED COST OF IMPROVEMENTS
The estimated cost of the Improvements is $20,000,00019,150,000. The estimated cost includes legal or other fees, the costs of printing the Bonds, and other costs and expenses incidental to or connected with the authorization, issuance and sale of the Bonds. To the extent the Agenda Item #12.2.
Ordinance No. ______
3 Improvements financed are revenue-producing public works, the cost of the Improvements may also include bond interest estimated to accrue during the construction period and for a period of not to exceed 12 months after completion of construction.
SECTION 7. PRINCIPAL AMOUNT OF BONDS
The amount of the principal of the Bonds shall not exceed $20,000,00019,150,000.
SECTION 8. MAXIMUM INTEREST RATE
The maximum rate of interest to be paid on the Bonds shall be the statutory maximum of 12% per annum. Said interest shall be payable semiannually, except that interest for the first year after the date of the Bonds may be made payable at the end of said year.
SECTION 9. ISSUANCE AND SALE OF BONDS
The City proposes to issue and sell the Bonds pursuant to Article 1, commencing with Section 43600, of Chapter 4 of Division 4 of Title 4 of the California Government Code, or Article 4.5, commencing with Section 53506, of Chapter 3 of Part 1 of Division 2 of Title 5 of the California Government Code, in one or more series, in the maximum amount and for the objects and purposes set forth above if two-thirds of all qualified voters voting on the proposition set forth above vote in favor thereof. The Bonds will be general obligations of the City payable from and secured by ad valorem taxes levied and collected in the manner prescribed by the laws of the State of California. The revenue generated from the ad valorem tax levied and collected will be used for the payment of debt service on the Bonds. All of the Bonds shall be equally and ratably secured, without priority, by the taxing power of the City.
SECTION 10. MANNER OF CONDUCTING ELECTION
The election on the Bonds held on June 7, 2022 shall be held and conducted, election officers appointed, voting precincts designated, ballots printed, polls opened and closed, ballots counted, and returned, returns canvassed, results declared, and all other proceedings incidental to and connected with the election shall be regulated and done in accordance with the provisions of law regulating the election with which it is consolidated.
SECTION 11. PROCEDURE FOR VOTING ON PROPOSITION
Ballots for the election shall be provided in the form and in the number provided by law. Voters shall be provided an opportunity to vote for or against the proposition on the ballot, in accordance with procedures to be adopted by the authorized officers of the County of Napa (the “County”) charged with conducting the election.
SECTION 12. ACCOUNTABILITY REQUIREMENTS
In accordance with Sections 53410 and 53411 of the California Government Code, the City Council hereby adopts the following accountability requirements relating to the Bonds:
(a) A separate account shall be created and held by the City, into which the proceeds of the Bonds are deposited and applied solely for the purpose of financing the Improvements.
Agenda Item #12.2.
Ordinance No. ______
4 (b) The Administrative Services Director of the City shall file a report with the City Council at least annually showing the amount of Bond proceeds collected and expended, and the status of the Improvements.
SECTION 13. IDENTIFICATION OF TAX
The tax imposed by this measure is an ad valorem tax levied upon taxable real property in the City, and will be used to pay the principal and interest on the Bonds.
SECTION 14. ESTABLISHMENT OF OVERSIGHT COMMITTEE
In the event the ballot proposition is passed by two-thirds of all qualified voters voting on the proposition and the Bonds are issued, the City Council shall establish and appoint members to an oversight committee, which shall have responsibility for reviewing and reporting on the expenditure of the proceeds of the Bonds.
SECTION 15. OFFICIAL ACTIONS
The Mayor, the City Manager, the Administrative Services Director, the City Clerk, and any of their designees, are hereby authorized to execute any documents and to perform all acts necessary to place the bond measure on the ballot.
SECTION 16. INTERPRETATION
The provisions of this Ordinance, being necessary for the health, welfare, and safety of the City and its residents, is to be liberally interpreted to carry out its purposes. No error, irregularity or informality, and no neglect or omission of any officer, in any proceeding taken related to the submission of the proposition incurring bonded indebtedness to the qualified voters of the City shall void or invalidate any such proceeding, any Bonds issued by the City or any levy of ad valorem taxes to pay principal of and interest on the Bonds.
SECTION 17. SEVERABILITY
If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provisions or applications, and to this end the provisions this Ordinance are declared to be severable.
SECTION 18. PUBLICATION OF ORDINANCE
This Ordinance shall be published once a day for at least seven days in a newspaper published at least six days a week in the City, or once a week for two weeks in a newspaper published less than six days a week in the City. The first of said publications shall, in either event, be within 15 days after the adoption of this Ordinance. If there are no such newspapers, it shall be posted in three public places in the city City for two succeeding weeks. No other notice need be given.
SECTION 19. EFFECTIVE DATE
In accordance with Section 36937(a) of the California Government Code, this Ordinance shall become effective immediately, as an ordinance relating to an election, upon its adoption by twothirds vote of all the members of this City Council.
Agenda Item #12.2.
Ordinance No. ______
5 THE FOREGOING ORDINANCE was introduced at a regular meeting of the St. Helena City Council on the ___ day of _________, 2022, and was adopted at a regular meeting of the St.
Helena City Council on the ___ day of _________, 2022, by the following vote:
Mayor Ellsworth: _______
Vice Mayor Dohring: _______
Councilmember Chouteau: _______
Councilmember Hardy: _______
Councilmember Hall: _______
APPROVED:
Geoff Ellsworth, Mayor
ATTEST:
CITY OF ST. HELENA
Cindy Tzafopoulos, City Clerk
I, CINDY TZAFOPOULOS, CITY CLERK of the City of St. Helena, California, do hereby certify that the foregoing Ordinance was regularly introduced and placed upon its first reading at a regular meeting of the City Council on the ___ day of _________, 2022. That thereafter said Ordinance was duly adopted and passed at a regular meeting of the City Council on the ___ day of _________, 2022, by the following vote:
Mayor Ellsworth: _______
Vice Mayor Dohring: _______
Councilmember Chouteau: _______
Councilmember Hardy: _______
Councilmember Hall: _______
Agenda Item #12.2.
1 Cindy Tzafopoulos
From: Mark Smithers <[email protected]>
Sent: Saturday, February 5, 2022 2:09 PM
To: Geoff Ellsworth; Paul Dohring; Lester Hardy; Eric Hall; Anna Chouteau Cc: Cindy Tzafopoulos
Subject: [External] February 8 Agenda item 12.2 General Obligation Bond - please post to agenda To our mayor and city council persons,
In as much as I’m completely against a General Obligation Bond financing Water Enterprise capital projects as this results in the inequality of water charges for all customers living in St Helena as a result of differing constituents and even assessed values, I need to bring to your attention the manipulative slide presenting the “isolated water / sewer analysis.” It is misleading at best. Please refer to the staff report Attachment 1 page 9.
1. The slide presents a water customer using 24 HCF monthly. That represents approximately 18,000 gallons a month or 215,000 gallons annually. Assuming a standard family of four the usage should be 109,000 gallons annually (65 gallons x 4 x 365 days plus 2,500 gallons for six months outdoor allocation). We have to assume we will be in phase II water restrictions or at least have locked in water conservation behavior. Note, we have many households of less than four persons which would result in much less water use and associated cost increases. Did any of you use 18,000 a month over the last twelve months?
2. There was no presentation of the 3% annual increase; no idea how they got there and whether or not it is valid.
3. Using the presented annual rate increases of 3%, the increased water use cost should be $190 over five years and approximately $419 over 10 years.
4. The sewer costs are similarly manipulated due to the high water use assumption. Again, not sure where the 6% increase came from?
5. Adjusting the sewer charges to water use of a standard family of 4, the increased cost (using the 6% increases) should be $212 over five years and approximately $495 over 10 years.
6. Total 10 year costs of $914.
7. The comparison to the GO Bond costs is where the more significant manipulation occurs. As you can see they presented five years and these are ridiculously low tax rates years. If the presentation is calculated over the first 10 years, the GO Bond cost is $1,337. Clearly the Revenue Bond scenario is less costly to the average family.
8. The 4% assessed value annual increase assumption is in consistent with the current LRFF property base assessed value increase of 3.5%. The higher assumption lowers the tax rate. If 3.5% was used the GO Bond burden would be higher.
It was not discussed or pointed out last night that there are many residences in St Helena that are not hooked up to our sewer system. So you will be charging them for a service they don’t receive.
I’m not sure what the rush is for the water and waste water funding given the Public Works Director’s comments and the already funded projects. I think council can sell a separate $10 million storm drain bond now. Let’s prepare the rate study with three different scenarios associated with varying capital projects, adjustments for certain water users that are supported by prop 218 regulations, and look at adjusting the general rate structure (service vs use charges). Given Agenda Item #12.2.
2 that 50% of our water is consumed by a few hundred industrial, business, and winery customers in conjunction with 65% of the water enterprise revenue coming from use charges (as opposed to service charges; i.e. fixed costs) a rate study resulting in a change to the rate structure may result in no significant rate increases burdening residential customers.
If you move forward with the manipulated and bad analysis that was presented, the correct information and a correct analysis will find its way to the public. Most likely presented by the Taxpayers of Napa Valley and that will be terribly unfortunate as it will not help support the GO Bond and any future tax or rate requests. I don’t see how in all good conscience you can saddle St Helena residents with a higher cost option when a lower cost option exists.
Best to you all and thanks for your continued service.
Mark
Mark Smithers | Senior Vice President, Finance
Trinchero Family Estates
Office: 1‐707‐302‐3027 | Ext. 2612 | Mobile: 1‐707‐290‐4508 [email protected]
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Agenda Item #12.2.
PUBLIC COMMENT Item 12.2
February 7, 2022
Dear City Council,
The “Voter Attitudes Toward a St. Helena Finance Measure” survey you paid at least $30,000 for was flawed and the slide presentation was riddled with problems. I won’t go into all that here however I will highlight some of the statistics it generated.
When one eliminates the “probably yes” and “undecided” responses from the survey you are left with only 37% who say they would definitely vote yes on a bond measure.
Add 27% “probably yes” and you reach 64%.
“Definitely no” or “probably no” came in at 25%.
Who knows what the other 11% are thinking.
Apply your +5% margin of error with its 95% confidence rate and this looks like a crap-shoot, particularly when you understand the survey is not able to factor in what percent of people will vote NO even if they want a bond simply because they were excluded from the process and object to the way this political maneuver is playing out.
It is my understanding all methods of distribution for this survey were electronic. Had you placed the (flawed) survey in every water customers bill so they would be sure to get it, or better yet do a direct mailing to every registered voter, and garnered just 266 more responses you could have reduced the ±5.0% margin of error to +3% with the same 95% Confidence Level, or a +4% margin of error with a heightened 99% Confidence Level. Plus you would have garnered good will rather than offending the great many people who are offended because they did not get a chance to weigh in.
While the proposed bond might pass, a failed attempt will be extremely counterproductive and almost certainly carry a painful backlash. Further, if it does pass you will have succeeded in putting something in place that is very problematic while firming up the resentments this process has already generated.
I urge you to NOT approve this measure and work closer with the community to come up with a better offering for November.
Sincerely,
Nancy Dervin
Agenda Item #12.2.
Report to the City Council
Regular City Council - 08 Feb 2022
Agenda Section: CONSENT ITEMS
Subject: Consideration and Proposed Approval of a Resolution Appointing James C. McCann as Interim City Manager and
approval of an Employment Agreement for an Interim City Manager
CEQA
Determination:
Not a CEQA project
Prepared By: Mark T. Prestwich, City Manager
Reviewed By: April Mitts, Administrative Services Director Approved By: Mark T. Prestwich, City Manager
BACKGROUND
City Manager Mark Prestwich is resigning from the City effective February 21, 2022 to begin employment with another public agency. The City of St. Helena has retained Bob Murray & Associates to assist with recruitment for a permanent City Manager. It is estimated that completing the selection process may take four to six months. As such, an Interim City Manager is necessary to fill this critical administrative role until a new City Manager is selected.
DISCUSSION
The City Council considered candidates for an Interim City Manager and selected James McCann to perform the duties of City Manager during the completion of the recruitment process and ensure the continuity of vital public services. Mr. McCann has more than 35 years of municipal government experience. He previously served 12 years as City Manager of the City of Calistoga and nearly 10 years as City Manager of Mill Valley before retiring in 2020.
The proposed employment agreement for Interim City Manager services will allow Mr.
McCann to perform the duties as City Manager on an interim basis. The interim appointment is in compliance with Government Code Sections 7522.56 and 21221(h), Agenda Item #12.3.
which allow retired annuitants of the California Public Employees' Retirement System (CalPERS) to work in a limited term appointment under specific rules.
During the interim period, Mr. McCann is expected to pursue the completion of objectives established by City Council and lead the organization in an effective manner. As such, approval of the attached Employment Agreement providing Interim City Manager McCann a salary of $94.48 per hour is recommended There are no proposed benefits for Mr.
McCann in accordance with CalPERS requirements.
In conformance with Senate Bill 1436, enacted as Chapter 175 of the Statutes of 2016, effective January 1, 2017, City Council is required to make an oral report of any recommended actions to increase compensation and/or benefits for an executive prior to final action.
FISCAL IMPACT
The City Manager is a regularly allocated position within the City's annual fiscal year budget and costs associated with an Interim City Manager will be covered within the existing budget.
RECOMMENDED ACTION
Approve resolution.
ATTACHMENTS
St. Helena Interim CM_ 21221 resolution-c1
Employment Agreement for Interim City Manager_Annuitant-c1 Agenda Item #12.3.
RESOLUTION 2022-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ST. HELENA APPOINTING INTERIM CITY MANAGER
AND APPROVING EMPLOYMENT AGREEMENT
WHEREAS, Government Code Section 21221(h) permits the City Council to appoint a retired annuitant to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that such appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and WHEREAS, the position of City Manager will become vacant at close of business on February 21, 2022; and
WHEREAS, the St. Helena City Council desires to appoint James McCann as an interim appointment retired annuitant to the vacant position of City Manager for the City of St. Helena under Government Code Section 21221(h), effective February 22, 2022; and
WHEREAS, James McCann is a CalPERS annuitant, having retired in approximately 2020, who has extensive experience in city management; and WHEREAS, an appointment under Government Code Section 21221(h) requires an active, publicly posted recruitment for a permanent replacement; and WHEREAS, the City has retained a recruiting firm to assist with filling the City Manager position permanently, has posted the vacancy on its website and has begun accepting applications; and
WHEREAS, this Section 21221(h) appointment shall only be made once and therefore will end on the date immediately preceding the date on which the regular replacement for the vacant position of City Manager for the City of St. Helena commences his or her employment or, if earlier, the date that this appointment is terminated by the City or McCann; and
WHEREAS, the compensation paid to retirees cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate; and WHEREAS, the maximum compensation for this position is $196,518.40; and WHEREAS, the hourly rate to be paid to James McCann is $94.48; and Agenda Item #12.3.
WHEREAS, McCann has not and will not receive any other benefit, incentive compensation in lieu of benefits or any other form of compensation in addition to this hourly pay rate.
WHEREAS, the entire employment agreement between McCann and the City of St. Helena has been reviewed by this body and is attached hereto as Exhibit A; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of St.
Helena, as follows:
SECTION 1. The City Council has considered the full record before it, which may include but is not limited to such things as the agenda staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it.
Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
SECTION 2. The City Council hereby appoints James McCann as interim City Manager effective February 22, 2022 pursuant to the authority provided under Government Code Section 21221(h) and 7522.56, during the recruitment, selection and employment of a regular City Manager to provide the critically-needed, specialized skills necessary to run the City of St. Helena.
SECTION 3. The employment agreement with McCann, a copy of which is incorporated herein as Exhibit A, is approved by the City Council, effective February 22, 2022.
SECTION 4. The Mayor is authorized to execute said agreement on behalf of the City, with such technical amendments as may be deemed appropriate by the City Manager and City Attorney.
SECTION 5. This Resolution shall take effect immediately upon its adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of St.
Helena, California, at a regular meeting held on this 8th day of February, 2022.
AYES:
NOES:
ABSENT:
ABSTAIN:
Agenda Item #12.3.
______________________
Geoff Ellsworth, Mayor
ATTEST:
____________________________
Cindy Tzafopoulos, City Clerk
Agenda Item #12.3.
EXHIBIT A
EMPLOYMENT AGREEMENT FOR
INTERIM CITY MANAGER SERVICES
Agenda Item #12.3.
1 of 6
AGREEMENT FOR TEMPORARY EMPLOYMENT
THIS AGREEMENT is between the City of St. Helena, a California municipal corporation (“City”), and James C. McCann, an individual (“Employee”) (collectively, the “Parties”) and is effective at 12:00 a.m. on February 22, 2022.
RECITALS
WHEREAS, the City has a vacancy at the position of City Manager, a regular position for which the City is conducting a recruitment for a permanent appointment; and WHEREAS, the City has an immediate need for an employee to temporarily perform the position of City Manager, a position involving specialized skills and training and which is critically necessary to the on-going duties and functions of the City; WHEREAS, Employee is competent and qualified to perform the services required by this Agreement, and City wishes to have Employee perform the City Manager duties on an interim basis; and
WHEREAS, Employee’s employment as interim City Manager is authorized by Government Code section 21221(h), which permits the City to appoint a CalPERS retired annuitant to a vacant position requiring specialized skills during recruitment for a permanent replacement.
WHEREAS, pursuant to action by the City Council during its regular meeting on February 8, 2022, Employee has been appointed on an interim basis to the vacant position of City Manager subject to the requirements of Government Code sections 7522.56 and 21221(h).
NOW, THEREFORE, the parties do mutually agree as follows:
AGREEMENT
1. Appointment and Scope of Services. Employee has been appointed as interim City Manager by the City Council, and shall temporarily perform the functions of City Manager, a position involving highly-specialized and critically-needed skills set forth in the attached job description, in the City’s Municipal Code, and as provided by law. Such employment is “at will,” subject to the terms of this Agreement, and Employee shall perform said duties at the pleasure of and under the direct supervision of the City Council.
2. Term. This Agreement shall be effective on February 22, 2022 (“Effective Date”). This Agreement shall expire as of the first of the following to occur: (i) upon the employment commencement date of a permanent City Manager employed by City; or (ii) upon termination of the Agreement by either Employee or City as provided in Section 6 of this Agreement. Employment under this Agreement is temporary, at-will, and may be terminated with or without cause and with or without notice at any time by the Employee or the City. Employee is not eligible for any severance payment or benefit relating to or arising out of the termination of this Agreement.
Agenda Item #12.3.
2 of 6
3. Compensation and Work Schedule.
A. Rate of Pay. Employee shall be paid at the rate of $94.48 per hour. The City has confirmed that this rate is not less than the minimum, nor in excess of the maximum, paid by the City to other employees performing comparable duties (divided by 173.333 to equal an hourly rate) as listed on the City’s publicly-available pay schedule. Payments will be made on regularly scheduled City payroll dates, and shall be subject to all applicable payroll taxes and withholdings. Such compensation shall be the sole compensation for Employee’s services under this Agreement.
B. Work Schedule and 960-hour Limitation. Employee is expected to devote necessary time, within and outside normal business hours, to the business of the City.
Pursuant to Government Code sections 21221(h) and section 7522.56, however, Employee’s performance of services as a retired annuitant, whether compensated or on a volunteer basis, shall not exceed 960 hours per fiscal year in all positions for all public employers that contract with CalPERS for retirement benefits. The City retains the right to designate, reduce, change, or amend the number of hours assigned to Employee consistent with the City’s workload and other needs. If Employee’s hours are approaching 960, then the City retains the right to summarily suspend Employee’s duties under this Agreement and to reassign any scheduled hours, as needed, to ensure that Employee does not exceed the maximum hours allowed by this Agreement. i. Employee will be responsible for keeping track of the number of hours worked on a time sheet form provided by the City and submitting them at least every two weeks.
ii. The position to which Employee is appointed is a temporary, hourly assignment which shall not exceed 40 hours per week. The City, through the City Council, will assign Employee hours to work. Due to the nature of the position, it is understood that the work day and work week hours may vary, however Employee shall not work overtime (i.e. hours in excess of 40 per week) without specific authorization by the Mayor.
iii. The City and Employee anticipate that Employee will primarily work a three day (Monday-Wednesday) schedule, with additional work as necessary to provide reasonable availability to County Council and to address urgent matters within a 32-40 hour per week time frame. The City and Employee acknowledge that this work will include hours outside of regular business hours including, without limitation, attendance at regular and special City Council meetings and attendance at such community events and City functions at the Council may direct.
4. Employment Status and Benefits.
A. Benefits. Other than the compensation described above in Section 3, Employee will receive no other benefits, incentives, compensation in lieu of benefits, or any other form of compensation. Employee understands and agrees that he is not, and will not be, eligible to receive any benefits from the City, including any City group plan for hospital, surgical, or medical insurance, any City retirement program, or any paid Agenda Item #12.3.
3 of 6
holidays, vacation, sick leave, or other leave, with or without pay, or any other job benefits available to an employee in the regular service of the City, except for Worker’s Compensation Insurance coverage or benefits required by state or federal law.
B. No Property Right in Employment. Employee understands and agrees that the terms of his employment are governed only by this Agreement and that no right of regular employment for any specific term is created by this Agreement. Employee further understands that he acquires no property interest in his employment by virtue of this Agreement, that the employment is “at will” as defined by the laws of the State of California (meaning that he can be terminated at any time for any reason or for no reason), and that he is not entitled to any pre- or post-deprivation administrative hearing or other due process upon termination or any disciplinary action except as otherwise provided by law.
D. Employment of a Retiree. Employee understands that CalPERS retired annuitants may be employed by any CalPERS public agency employer, by temporary appointment to position(s) not to exceed 960 hours in any fiscal year for all such employers; either (1) during an emergency to prevent stoppage of public business, or (2) because the retired employee has skills needed in performing work of limited duration.
In the event Employee is providing services to any other CalPERS public agency employer during the term of this Agreement, Employee must notify the City of commencing such employment and disclose on a periodic basis (at a frequency determined by the City) the number of hours Employee is performing for that other public agency to ensure that the maximum number of hours is not exceeded.
5. Representation of Employee.
A. Employee represents that he is properly trained and certified to perform the duties required of the interim City Manager position and this Agreement.
B. Employee further represents that he has not worked any hours as a retired annuitant for a CalPERS employer in the 2022 fiscal year (July 1, 2021 — June 30, 2022) and will immediately notify the City if he works any hours for another CaIPERS employer. Consistent with current Government Code provisions, the City shall not provide any benefits, leave time or compensation in lieu of benefits.
C. Employee represents that he has not received any unemployment insurance payments for prior retired annuitant work for any CalPERS employer within twelve months of the effective date of this Agreement.
D. Employee represents that more than 180 days have passed since his date of his bona fide CalPERS retirement.
6. Termination.
A. By City. This Agreement may be terminated by City for any reason thirty (30) days after providing written notice to Employee of such termination. City’s only obligation in the event of such termination will be payment to Employee of all compensation then due and owing as set forth in Section 3.A up to and including the effective date of termination. However, this Agreement may be terminated immediately Agenda Item #12.3.
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upon appointment of a permanent City Manager, or if necessitated by changes to CalPERS statutory or regulatory requirements, or if doing so will preclude a violation of Government Code Sections 7522.56 or 21221(h).
B. By Employee. This Agreement may be terminated by Employee for any reason thirty (30) days after providing written notice to City of such termination. City shall have the option, in its complete discretion, to make Employee’s termination effective at any time prior to the end of such period, provided City pays Employee all compensation as set forth in Section 3.A. then due and owing him through the last day actually worked.
C. No Notice for Expiration. Nothing in this Section 6 shall be construed to require either party to give advance written notice in order for the Agreement to expire as set forth in Section 2.
D. Termination Obligations. Employee agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to City and shall be returned promptly to City upon termination of Employee’s employment. Employee’s obligations under this subsection shall survive the termination of his employment and the expiration of this Agreement.
7. Non-Assignment of Agreement. This Agreement is intended to secure the individual services of the Employee and is not assignable or transferable by Employee to any third party.
8. Governing Law/Venue. This Agreement shall be interpreted according to the laws of the State of California. Venue for any action or proceeding regarding this contract shall be in Napa County.
9. Enforceability. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
10. Conflict of Interest. Employee agrees that during the term of this Agreement, he will not maintain any financial interest or engage in any other contract employment, occupation, work, endeavor or association, whether compensated or not, that would in any way conflict with, or impair Employee’s ability to perform the duties described in this Agreement. Any work performed for the City outside the terms of this Agreement must be approved in advance in writing by the City Council. Employee agrees to disclose whether he is performing work for any other CalPERS public agency employer as required by section 4.D. of this Agreement.
11. Entire Agreement and Modification. This Agreement constitutes the entire understanding of the parties hereto. This Agreement supersedes any previous contracts, agreements, negotiations or understandings, whether written or oral, between the parties. Employee shall be entitled to no other compensation or benefits than those specified herein, and Agenda Item #12.3.
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Employee acknowledges that no representation, inducements or promises not contained in this Agreement have been made to Employee to induce Employee to enter into this Agreement.
No changes, amendments, or alterations hereto shall be effective unless in writing and signed by both parties. Employee understands that no oral modification of this Agreement made by any officer, agent, or employee of the City is effective. Employee specifically acknowledges that in entering into and executing this Agreement, he relies solely upon the provisions contained herein and no others.
12. Support Services and Equipment. Employee shall be provided office space and the equipment needed to perform his duties and sufficient to fulfill obligations under this Agreement, as determined by the City Council, at no cost to Employee. In accordance with Government Code Section 21221(h), personal use of such equipment is not permitted.
13. Reimbursement for Expenses. City recognizes that certain expenses of a non-personal but job related nature are incurred by Employee, and agrees to reimburse or to pay said general expenses, including without limitation reimbursement for Employee’s use of his personal automobile for City related business which reimbursements shall be made in accordance with City policy, IRS regulations, and other applicable state or federal laws.
Other than as specifically provided herein, Employee shall receive no other compensation or reimbursements for expenses incurred by him in the performance of this Agreement.
14. Notices. All notices permitted or required under this Agreement shall be given to the respective parties by hand-delivery or by mail at the following address, or at such other address as the respective parties may provide in writing for this purpose, by deposit in the U.S. Mail, postage pre-paid, addressed as follows:
CITY:
City of St. Helena
1572 Railroad Avenue
St. Helena, CA 94574
ATTN: Administrative Services
Director
EMPLOYEE:
James C. McCann
1055 Second Avenue
Napa, CA 94558
15. Indemnification. In accordance with and subject to the limitations of the California Government Claims Act and California Labor Code, the City shall defend, save harmless and indemnify Employee against any tort, professional liability, claim or demand or other legal action, arising out of an alleged act or omission occurring in the performance of Employee’s services as interim City Manager, except that this provision shall not apply with respect to any intentional tort or crime committee by Employee, or any actions outside the course and scope of his employment as interim City Manager. The duty of defense shall include reimbursement of any out-of-pocket expenses incurred by Employee in connection with his service as a witness, party or other participant in litigation, whether such service occurs during or after the termination of Employment.
Said duties of defense and indemnity shall survive the termination of employment under this Agreement.
Agenda Item #12.3.
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16. No Presumption of Drafter. The Parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the Parties, and this Agreement reflects their mutual agreement regarding the subject matter of this Agreement. Because of the nature of such negotiations and discussions, it would be inappropriate to deem any Party to be the drafter of this Agreement and, therefore, no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement.
17. Assistance of Counsel. Each party to this Agreement warrants to the other party that the party has either had the assistance of counsel in negotiation for, and preparation of, this Agreement or could have had such assistance and voluntarily declined to obtain such assistance.
18. Bonding. The City shall bear the full cost of any fidelity or other bond required under any law or ordinance.
Dated:
EMPLOYEE:
James C. McCann
Dated:
CITY:
Geoff Ellsworth, Mayor
Approved as to Form:
__________________________
Ethan Walsh
City Attorney
Agenda Item #12.3.