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10-18-2016 Searchable packetCITY OF CUPERTINO AGENDA Tuesday, October 18, 2016 10300 Torre Avenue and 10350 Torre Avenue CITY COUNCIL 5:00 PM Non-televised Special Meeting Closed Session (5:00); Followed by Televised Regular Meeting (6:45) NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby called for Tuesday, October 18, 2016, commencing at 5:00 p.m. in City Hall Conference Room A, 10300 Torre Avenue, Cupertino, California 95014 and the regular meeting following at 6:45 p.m. in Community Hall Council Chamber, 10350 Torre Avenue, Cupertino, California 95014. Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, “Special Meeting." SPECIAL MEETING ROLL CALL - 5:00 PM 10300 Torre Avenue, City Hall Conference Room A CLOSED SESSION 1.Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Manager; Appointed Employees Compensation Program 2.Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Attorney; Appointed Employees Compensation Program 3.Subject: Conference with Labor Negotiators (Gov't Code Section 54957.6); Agency designated representatives: City Manager, Director of Administrative Services; Employee organizations: Unrepresented (Management and Confidential) Employees' Compensation Program ADJOURNMENT REGULAR MEETING Page 1 CITY OF CUPERTINO 1 October 18, 2016City Council AGENDA PLEDGE OF ALLEGIANCE - 6:45 PM 10350 Torre Avenue, Community Hall Council Chamber ROLL CALL STUDY SESSION 1.Subject: Study Session regarding Sustainable Strategies for Recycling and Waste Management Recommended Action: 1.Receive information and public comment at study session; 2.Direct staff to investigate sustainable strategies that strengthen solid waste reduction measures as identified in the City of Cupertino Climate Action Plan (CAP), and; 3.Solicit future input from the Sustainability Commission in evaluating strategies that maximize the amount of waste products that are recycled, reused or composted, and; 4.As determined necessary, schedule for Council consideration the amendment of applicable chapters of the City of Cupertino Municipal Code to enforce solid waste reduction measures, and; 5.As determined necessary, schedule for Council consideration the authorization and negotiation of agreements between the City of Cupertino and potential recycling/organic processing sites. 6.As determined necessary, schedule for Council consideration amendments to the Franchise Agreement between the City of Cupertino and Recology Cupertino for Collection and Processing of Recyclable and Compostable Materials, and the Collection and Disposal of Garbage (Franchise Agreement) Staff Report A - EPA's Food REcovery Hierarchy CEREMONIAL MATTERS AND PRESENTATIONS 2.Subject: Presentation by Toyokawa Sister City Committee regarding recent trip Recommended Action: Receive the presentation by Toyokawa Sister City Committee regarding recent trip 3.Subject: Library Commission Fiscal Year 2016-17 Work Plan presentation Recommended Action: Receive the Library Commission Fiscal Year 2016-17 Work Plan presentation 4.Subject: Cupertino Safe Routes to School Program Update Recommended Action: Receive Cupertino Safe Routes to School Program Update Page 2 CITY OF CUPERTINO 2 October 18, 2016City Council AGENDA 5.Subject: Presentation from the Taipei Friendship City Committee regarding a Smart City Conference in May of 2017 Recommended Action: Receive the presentation POSTPONEMENTS ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the council on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the council from making any decisions with respect to a matter not listed on the agenda. CONSENT CALENDAR Unless there are separate discussions and/or actions requested by council, staff or a member of the public, it is requested that items under the Consent Calendar be acted on simultaneously. 6.Subject: Approve the October 4 City Council minutes Recommended Action: Approve the October 4 City Council minutes A - Draft Minutes 7.Subject: Request from the Taipei Friendship City Committee for City to Sponsor a Smart City Conference in May of 2017 Recommended Action: Sponsor the proposed Smart City Conference Staff Report 8.Subject: Authorize an additional full-time equivalent (FTE) position in the City Attorney's Office Recommended Action: Adopt Resolution No. 16-106 to: 1) Increase FTE in the City Attorney's Office from 3 FTE to 4 FTE by adding a Deputy City Attorney position; and 2) Authorize a budget adjustment of $60,000 in the City Attorney's program budget Staff Report A - Draft Resolution 9.Subject: Adopt resolution increasing the employer's contribution for medical and hospitalization insurance for employees under the Unrepresented group, Cupertino Employees's Association, Operating Engineers, Local Union No. 3, Appointed, Elected Officials, and retired annuitant groups. Page 3 CITY OF CUPERTINO 3 October 18, 2016City Council AGENDA Recommended Action: Adopt Resoution No. 16-107 increasing employer's contribution for medical and hospitalization insurance for employees under the Unrepresented, Cupertino Employees' Association, Operating Engineers, Local Union No. 3, Appointed, Elected Officials, and retired annuitant groups Staff Report A - Draft Resolution 10.Subject: Approve the terms and conditions of employment for the Unrepresented (Management and Confidential) Employees, Appointed Employees, and Elected officials Recommended Action: 1. Adopt Resolution No. 16-108 amending the Compensation Program for the Unrepresented (Management and Confidential) Employees; and 2. Adopt Resolution No. 16-109 amending the Compensation Program for the Appointed Employees; and 3. Adopt Resolution No. 16-110 amending the Compensation Program for the Elected Officials; and 4. Make the necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs related to changes to the compensation program Staff Report A - Employee Group Salary and Benefits recommended changes B - Koff and Associates Class and Comp Study - Leave schedule C - Draft Resolution amending the Unrepresented Employees' Compensat... D - Draft Redline Unrepresented Compensation Program E - Clean Unrepresented Employees' Compensation program F - Draft Resolution amending the Elected Officials Compensation... G - Draft Redline Elected Officials Compensation Program H - Clean Elected Officials Compensation Program - Changes Accepted - 10-12-16 I - Draft Resolution amending the Appointed Employees Compensation P... J - Draft Redline Appointed Employees' Compensation Program K - Clean Appointed Employees' Compensation Program - Changes Accepted - 10-12-16 11.Subject: Approval of the Third Amendment to Santa Clara Valley Urban Runoff Pollution Prevention Program Memorandum of Agreement to extend its term through one fiscal year beyond the date of termination of the current Municipal Regional Stormwater Permit (estimated 2021) Recommended Action: Authorize the City Manager to execute the Third Amendment (Attachment A) to an Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (Attachment B), a multi-jurisdictional Agreement between Santa Clara County, the Santa Clara Valley Water District, and thirteen Santa Clara County municipalities Staff Report A - Third Amendment Draft Agreement B - Appendices 1-3: Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program as fully executed as of March 10, 2000; First Amendment to Agreement; and Second Amendment to Agreement Page 4 CITY OF CUPERTINO 4 October 18, 2016City Council AGENDA 12.Subject: Application for Alcohol Beverage License for PEFF, LLC (dba Enzo's Restaurant), 21275 Stevens Creek Boulevard, Suite 510 Recommended Action: Recommend approval to the California Department of Alcoholic Beverage Control of the application for Alcohol Beverage License for PEFF, LLC (dba Enzo's Restaurant), 21275 Stevens Creek Boulevard, Suite 510 Staff Report A - Application 13.Subject: Application for Alcohol Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way Recommended Action: Recommend approval to the California Department of Alcoholic Beverage Control of the application for Alcohol Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way Staff Report A- Application SECOND READING OF ORDINANCES PUBLIC HEARINGS 14.Subject: Enact an Urgency Ordinance to prohibit non-medical marijuana cultivation, dispensaries, transport and deliveries and commercial cannabis activities within the City of Cupertino. (Location: City-wide; Applicant: City of Cupertino) Recommended Action: That the City Council: 1. Find that the proposed actions are exempt from CEQA; and 2. Enact Interim Urgency Ordinance No. 16-2153 “An Interim Urgency Ordinance of the City Council of the City of Cupertino Establishing a Moratorium on Non-Medical Marijuana Dispensaries, Marijuana Cultivation Facilities, Commercial Cannabis Activities and Marijuana Transport and Deliveries within the City of Cupertino Pending Completion of an Update to the City’s Zoning Code" Staff Report A - Draft Interim Urgency Ordinance B - 2015 Association of Colorado Chiefs of Police Report C - FAQ from Website ORDINANCES AND ACTION ITEMS 15.Subject: Consideration of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City Page 5 CITY OF CUPERTINO 5 October 18, 2016City Council AGENDA Recommended Action: Conduct the first reading of Ordinance No. 16-2154: "An Ordinance of the City Council of the City of Cupertino to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City" Staff Report A - Draft Ordinance B - Existing Ordinance Proposed for Rescinding C - FEMA Community Assistance Visit letter REPORTS BY COUNCIL AND STAFF 16.Subject: Report on Committee assignments and general comments Recommended Action: Report on Committee assignments and general comments ADJOURNMENT Page 6 CITY OF CUPERTINO 6 October 18, 2016City Council AGENDA The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a final decision of the City Council must be brought within 90 days after a decision is announced unless a shorter time is required by State or Federal law. Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal Code §2.08.096. Contact the City Clerk’s office for more information or go to http://www.cupertino.org/index.aspx?page=125 for a reconsideration petition form. In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend the next City Council meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, 48 hours in advance of the Council meeting to arrange for assistance. Upon request, in advance, by a person with a disability, City Council meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. Also upon request, in advance, an assistive listening device can be made available for use during the meeting. Any writings or documents provided to a majority of the Cupertino City Council after publication of the packet will be made available for public inspection in the City Clerk’s Office located at City Hall, 10300 Torre Avenue, during normal business hours and in Council packet archives linked from the agenda/minutes page on the Cupertino web site. Members of the public are entitled to address the City Council concerning any item that is described in the notice or agenda for this meeting, before or during consideration of that item. If you wish to address the Council on any issue that is on this agenda, please complete a speaker request card located in front of the Council, and deliver it to the Clerk prior to discussion of the item. When you are called, proceed to the podium and the Mayor will recognize you. If you wish to address the City Council on any other item not on the agenda, you may do so by during the public comment portion of the meeting following the same procedure described above. Please limit your comments to three (3) minutes or less. Page 7 CITY OF CUPERTINO 7 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2076 Name: Status:Type:Closed Session Agenda Ready File created:In control:10/7/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Manager; Appointed Employees Compensation Program Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. Subject:PublicEmployeePerformanceEvaluation(Gov'tCodeSection54957).Title:City Manager; Appointed Employees Compensation Program CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™8 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2077 Name: Status:Type:Closed Session Agenda Ready File created:In control:10/7/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Attorney; Appointed Employees Compensation Program Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. Subject:PublicEmployeePerformanceEvaluation(Gov'tCodeSection54957).Title:City Attorney; Appointed Employees Compensation Program CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™9 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2092 Name: Status:Type:Closed Session Agenda Ready File created:In control:10/12/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Conference with Labor Negotiators (Gov't Code Section 54957.6); Agency designated representatives: City Manager, Director of Administrative Services; Employee organizations: Unrepresented (Management and Confidential) Employees' Compensation Program Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. Subject: Conference with Labor Negotiators (Gov't Code Section 54957.6); Agency designated representatives: City Manager, Director of Administrative Services; Employee organizations: Unrepresented (Management and Confidential) Employees' Compensation Program CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™10 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:115-1163 Name: Status:Type:Study Session Agenda Ready File created:In control:10/12/2015 City Council On agenda:Final action:10/18/2016 Title:Subject: Study Session regarding Sustainable Strategies for Recycling and Waste Management Sponsors: Indexes: Code sections: Attachments:Staff Report A - EPA's Food REcovery Hierarchy Action ByDate Action ResultVer. City Council10/18/20161 Subject: Study Session regarding Sustainable Strategies for Recycling and Waste Management 1.Receive information and public comment at study session; 2.Directstafftoinvestigatesustainablestrategiesthatstrengthensolidwastereduction measures as identified in the City of Cupertino Climate Action Plan (CAP), and; 3.SolicitfutureinputfromtheSustainabilityCommissioninevaluatingstrategiesthat maximize the amount of waste products that are recycled, reused or composted, and; 4.Asdeterminednecessary,scheduleforCouncilconsiderationtheamendmentof applicablechaptersoftheCityofCupertinoMunicipalCodetoenforcesolidwaste reduction measures, and; 5.Asdeterminednecessary,scheduleforCouncilconsiderationtheauthorizationand negotiationofagreementsbetweentheCityofCupertinoandpotentialrecycling/organic processing sites. 6.Asdeterminednecessary,scheduleforCouncilconsiderationamendmentstothe FranchiseAgreementbetweentheCityofCupertinoandRecologyCupertinofor CollectionandProcessingofRecyclableandCompostableMaterials,andtheCollection and Disposal of Garbage (Franchise Agreement) CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™11 1 PUBLIC WORKS DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Study Session regarding Sustainable Strategies for Recycling and Waste Management. Recommended Action 1. Receive information and public comment at study session; 2. Direct staff to investigate sustainable strategies that strengthen solid waste reduction measures as identified in the City of Cupertino Climate Action Plan (CAP), and; 3. Solicit future input from the Sustainability Commission in evaluating strategies that maximize the amount of waste products that are recycled, reused or composted, and; 4. As determined necessary, schedule for Council consideration the amendment of applicable chapters of the City of Cupertino Municipal Code to enforce solid waste reduction measures, and; 5. As determined necessary, schedule for Council consideration the authorization and negotiation of agreements between the City of Cupertino and potential recycling/organic processing sites. 6. As determined necessary, schedule for Council consideration amendments to the Franchise Agreement between the City of Cupertino and Recology Cupertino for Collection and Processing of Recyclable and Compostable Materials, and the Collection and Disposal of Garbage (Franchise Agreement). Description Waste disposal creates emissions when organic waste (e.g., food scraps, yard trimmings, paper and wood products) is buried in landfills and anaerobic digestion takes place, emitting methane. Additionally, extracting and processing raw materials for consumer products, distributing them to consumers and disposing them creates greenhouse gas emissions (GHG). In Cupertino, approximately 2% of GHG emissions are associated with solid waste generation and disposal in landfills. Recent efforts to reduce long-term waste generation have incorporated the principle of zero waste, with the goal of being able to recycle, reuse, or compost all disposed products. Implementation programs to achieve zero waste can include community-wide recycling, 12 2 organics collection (e.g., food scraps, compostable paper), and green design to minimize construction-related waste. Business procurement policies can also be developed to give preference to materials that support a zero waste goal. Paperless office policies can incorporate technological hardware and software to minimize office paper waste. Manufacturing processes can be designed to eliminate supply stream waste and reduce operating expenses. A combination of these practices can potentially lead to lower landfill-related emissions, and help to extend the useful operating life of local landfills. The measures included within the CAP Solid Waste Strategy provide total GHG emission reduction potential of 275 metric tons CO2e/year in 2020, and 1,300 metric tons CO2e/year in 2035. This represents approximately 2.0% of total local CAP measure reductions. Measures identified in the CAP for the reduction of solid waste are: Measure Goal C-SW-1 Zero Waste Maximize solid waste diversion community-wide through preparation of a zero waste strategic plan. C-SW-2 Food Scrap and Compostable Paper Diversion Continue to promote the collection of food scraps and compostable paper through the City’s organics collection program. C-SW-3 Construction & Demolition Waste Diversion Program Continue to enforce diversion requirements in City’s Construction & Demolition Debris Diversion and Green Building Ordinances. Discussion The Franchise Agreement provides the Franchisee (Recology) the exclusive privilege (with some exceptions) to collect and process recyclable materials, compostable materials, construction and demolition debris, and garbage. Diversion of waste from landfills is specified in the Franchise Agreement and targets include: 1. 75% waste diversion rate by population (set by CalRecycle) for calendar year 2015, and; 2. 75% waste diversion rate by employment (set by CalRecycle) for calendar year 2015, and; 3. 60% diversion of commercial waste by November 1, 2016. To date only the second target has been met. This is despite the implementation of the first two tiers of the City’s mandatory commercial organics recycling ordinance in September 2015 and January 2016 that required large and medium food-generating businesses to separate organic materials. Last month Recology reported that commercial 13 3 waste diversion was averaging 45% per month (up from 41% in 2014). CalRecycle reported that the City achieved a 75% diversion rate by employment and a 65% diversion rate by population, respectively for 2015.1 To meet diversion goals staff has concluded that significant program changes are needed. With food scraps the largest component of material remaining in the waste stream, future efforts need to be focused on a refined organic collection and processing program. Desired program characteristics will include:  Effective and efficient removal of contaminants from organic waste.  Maximum diversion of organics and food scraps.  Making it as convenient as possible for businesses and residents.  Minimize GHG emissions by o Reducing travel distance to processing sites o Utilizing process treatments that make the highest and best use of all organics collected.  Minimize collection costs and impacts by considering o Pilot programs for commercial and residential customers o Partnering with neighboring public agencies  Delivery of garbage (anything that is not being recycled or reused) to Newby Island until November 2023 (end of the contract term). Staff has met with Recology to discuss resources available to build an organic collection and processing program. Recology has informed staff they will support the City with any program to increase diversion by providing collection services and maintaining existing processing services only. Recology is not interested in expanding processing services. As a result, staff and the City’s waste diversion consultant (For Sustainability Too) have identified three preferable processing options out of ten bay area sites that best meet the measures of the CAP and the complimentary program characteristics described above. Another option, while not preferable, is to continue processing of various materials as currently provided by Recology. 1. Zero Waste Energy Development (ZWED), San José The Zero Waste Energy Development (ZWED) facility at 685 Los Esteros Rd in San José, is located approximately 15.5 miles from Cupertino. The facility utilizes anaerobic digestion to biologically break down organic materials and generate methane gas during the digestion process. The methane is collected and converted to electricity. This facility is approximately 3 years old and to be effective, requires the incoming organic materials to be relatively free of contaminants (e.g. glass, plastics and batteries). At the current time, 1AB939, regulated by CalRecycle requires 50% diversion. AB341 sets a statewide goal of 75 percent recycling, composting or source reduction of solid waste by 2020. Cupertino is exceeding this requirement. 14 4 this facility does not have additional capacity to accommodate Cupertino’s food scraps. In late 2017, Phase 2 of ZWED is expected to be complete and additional capacity to accommodate Cupertino may become available. To determine if Cupertino’s organics stream is appropriate for ZWED, a waste characterization study will need to be completed to identify potential issues and if these issues can be resolved with education or enforcement. Contamination removed from ZWED is taken to the landfill. Only food scraps and yard trimmings, not recyclables or garbage, are processed at this facility. If included in a future Cupertino program, this facility would reduce GHG emissions of processed organics. Diversion of materials from landfill would be unchanged. 2. Sustainable Alternative Feed Enterprises (SAFE) The SAFE facility in Santa Clara is located at 1060 Walsh Avenue near Scott Boulevard, approximately 7.5 miles from Cupertino. This facility is 2 years old and produces an end product that is rated preferable to energy produced by recovering methane from an anaerobic digester. Food scraps processed at SAFE meet USDA feed requirements for animals such as pigs, chickens and fish. The nutrient-rich finished product of SAFE is high on the EPA’s food recovery hierarchy (Attachment 1). The SAFE process does not generate methane gas, is not land intensive and conserves virgin resources that would otherwise have been expended to produce animal feed. Removed contamination from SAFE is landfilled at Newby Island. Only food scraps, not recyclables, green waste and/or garbage, are processed at this facility. The process used by SAFE utilizes a “spoke and hub” system. Food scraps are collected, contaminants removed, and the food is reduced to a liquid mash at the “spoke.” At the “hub,” the mash is converted to the finished animal feed product. Presently, the only “hub” of the system is at the SAFE facility in Santa Clara. The only “spoke” is at the Mission Trial corporation yard (also in Santa Clara) where food wastes collected from residents in the City of San José and businesses in the City of Sunnyvale are processed and delivered to the “hub.” Mission Trail currently does not have the capacity to accept Cupertino food wastes. To increase capacity, additional “spokes” at added locations are planned by SAFE. The City of Sunnyvale has approved the installation of a “spoke” at the SMaRT Station to accept both residential and commercial food scraps. If included in a future Cupertino program, the SAFE facility system would reduce GHG emissions of processed organics and the end product would have a higher use than compost. Diversion of materials away from landfill would be unchanged. 3. SMaRT (Sunnyvale Materials Recovery and Transfer Station) The SMaRT Station serves the City of Sunnyvale and the SMaRT Station agency partners, Mountain View and Palo Alto. Cupertino has the opportunity to become an agency partner of the SMaRT Station. This material recovery facility processes all streams of materials including recyclables, yard trimmings and food scraps. It is located at 301 Carl 15 5 Road in Sunnyvale, approximately 6.2 miles from Cupertino. This facility is approximately 23 years old. Recycled materials that are received at the SMaRT station are sorted by type and sold as commodities. Green wastes are pre-processed on site and then transported 46 miles to Z-Best (a Zanker facility) located at 980 CA-25 Southeast of Gilroy to complete the composting process. New equipment (spoke to the SAFE hub) is being installed the SMaRT Station to pre-process food scraps on-site with plans for the processed mash to be hauled to the SAFE facility located 6.3 miles away. Contaminants removed from the food scraps at the SMaRT Station are landfilled at the Kirby Canyon Landfill in San José. If included in a future Cupertino program as an agency partner of the SMaRT Station, it is estimated that commercial recycling and food scraps diversion from the landfill would increase substantially while transportation costs and environmental impacts would be significantly reduced. 4. Recology Recology collected materials include garbage, recyclables, yard trimmings, food scraps and construction & demolition debris. The table below summarizes where and how these materials are processed and the end product that results from the process: Material Process Location Process Type End Product Garbage Newby Island (1) (San José) Landfill None Recyclables Green Waste Recovery (Charles St., San José) Sorting Various Commodities Green Waste & Food Waste Rogers Avenue (San José) then transferred to Blossom Valley Organics (Tracy) Windrow Compost Construction & demolition Newby Island (San José) Sorting Clean dirt, concrete, asphalt, untreated wood (1) City is contractually obligated to take garbage to Newby through 2023 Some of these processes, particularly those related the sorting of garbage and treatment of organics, can be improved. CAP measures will not be achieved and the 75% CalRecycle and 60% commercial diversion goals will not be met. Costs to customers that have their materials processed by Recology would not increase. 16 6 Next Steps The availability and costs are uncertain with each processing facility identified. Next steps will be to conduct waste audits and determine potential efficiencies, greenhouse gas reductions, landfill reductions and costs. Both commercial and residential pilot programs will likely be recommended. Discussions with potential recycling/organic processing sites will continue as will discussions with Recology to potentially amend the Franchise Agreement. Staff would bring a report, Franchise Agreement amendment and the authorization and negotiation of agreements between the City and potential recycling/organic processing sites for Council consideration as early as the next six months. The current Franchise Agreement expires in January 2019 and includes a provision that allows the Franchisee an option to negotiate a new ten year agreement that may begin as early as January 31, 2017 provided certain diversion requirements are met. Based on current performance of Recology as a hauler, quality of services delivered, and low cost, staff is likely to recommend an extension of time to allow a focused organic program to be established and to preserve to Recology the option to negotiate a new agreement at a future date to be determined. The Construction & Demolition Waste Diversion Program will be evaluated and changes recommended depending on processing technologies that may increase effectiveness. Sustainability Impacts CalRecycle reports that of the nearly 35 million tons of waste that reach California’s landfills each year, approximately 80% could be recoverable through organics and construction and demolition debris collection programs. Though Cupertino is exceeding existing state mandates for waste diversion, new technology and expected future mandates have encouraged the City to strive for improvements that will help the City achieve its zero waste targets recommended by Council in the City’s Climate Action Plan. Fiscal Impact There will be no immediate fiscal impact. Diverting organics and recycling from the landfill lowers landfill disposal fees and postpones the purchase of new landfill space. Additional costs, if any, to implement new processing alternatives, are uncertain until research and discussions with partnering agencies has been conducted. 17 7 _____________________________________ Prepared by: Cheri Donnelly, Environmental Programs Manager Roger Lee, Assistant Director of Public Works Reviewed by: Timm Borden, Director of Public Works Approved for Submission by: David Brandt, City Manager Attachments: A – EPA’s Food Recovery Hierarchy 18 ATTACHMENT A – EPA’S FOOD RECOVERY HIERARCHY 19 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2079 Name: Status:Type:Ceremonial Matters & Presentations Agenda Ready File created:In control:10/10/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Presentation by Toyokawa Sister City Committee regarding recent trip Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council10/18/20161 Subject: Presentation by Toyokawa Sister City Committee regarding recent trip Receive the presentation by Toyokawa Sister City Committee regarding recent trip CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™20 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1921 Name: Status:Type:Ceremonial Matters & Presentations Agenda Ready File created:In control:8/15/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Library Commission Fiscal Year 2016-17 Work Plan presentation Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council10/18/20161 Subject: Library Commission Fiscal Year 2016-17 Work Plan presentation Receive the Library Commission Fiscal Year 2016-17 Work Plan presentation CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™21 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1956 Name: Status:Type:Ceremonial Matters & Presentations Agenda Ready File created:In control:9/6/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Cupertino Safe Routes to School Program Update Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council10/18/20161 Subject: Cupertino Safe Routes to School Program Update Receive Cupertino Safe Routes to School Program Update CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™22 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2095 Name: Status:Type:Ceremonial Matters & Presentations Agenda Ready File created:In control:10/12/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Presentation from the Taipei Friendship City Committee regarding a Smart City Conference in May of 2017 Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council10/18/20161 Subject:PresentationfromtheTaipeiFriendshipCityCommitteeregardingaSmartCity Conference in May of 2017 Receive the presentation CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™23 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1331 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:1/7/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Approve the October 4 City Council minutes Sponsors: Indexes: Code sections: Attachments:A - Draft Minutes Action ByDate Action ResultVer. City Council10/18/20161 Subject: Approve the October 4 City Council minutes Approve the October 4 City Council minutes CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™24 DRAFT MINUTES CUPERTINO CITY COUNCIL Tuesday, October 4, 2016 REGULAR CITY COUNCIL MEETING ROLL CALL At 6:00 p.m. Mayor Barry Chang called the City Council meeting to order in Cupertino City Hall Conference Room A, 10300 Torre Avenue. Present: Mayor Barry Chang, Vice Mayor Savita Vaidhyanathan, and Councilmembers Darcy Paul, Rod Sinks and Gilbert Wong. Absent: None. CLOSED SESSION 1. Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Manager; Appointed Employees Compensation Program Mayor Chang reported that Council gave direction to staff. Mayor Chang also reported out from closed sessions held on September 14 and 21. Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Manager Mayor Chang reported that Council gave direction to staff. Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Attorney Mayor Chang reported that Council gave direction to staff. Subject: Conference with Labor Negotiators pursuant to Government Code Section 54957.6; Agency designated representatives: City Manager, Director of Administrative Services and Dania Torres Wong; Employee organizations: Operating Engineers Local No. 3 Union; Cupertino Employees' Association; Unrepresented (Management and Confidential) Employees' Compensation Program 25 City Council Minutes October 4, 2016 2 Mayor Chang reported that Council gave direction to staff. PLEDGE OF ALLEGIANCE At 6:50 p.m. Mayor Barry Chang convened the Regular City Council meeting in Cupertino Community Hall Council Chambers, 10350 Torre Avenue and led the Pledge of Allegiance. ROLL CALL Present: Mayor Barry Chang, Vice Mayor Savita Vaidhyanathan, and Councilmembers Darcy Paul, Rod Sinks and Gilbert Wong. Absent: None. CEREMONIAL MATTERS AND PRESENTATIONS - None POSTPONEMENTS 2. Subject: Continue Item No. 15 Municipal Code Amendment to amend Chapter 8.07, Beekeeping, regarding the regulation, location, and the keeping of bees in the City; Application No(s): MCA-2016-03; Applicant(s): City of Cupertino; Location: Citywide to November 15. This item will be re-noticed Recommended Action: Continue Item No. 15 Municipal Code Amendment to amend Chapter 8.07, Beekeeping, regarding the regulation, location, and the keeping of bees in the City; Application No(s): MCA-2016-03; Applicant(s): City of Cupertino; Location: Citywide to November 15. This item will be re-noticed Wong moved and Sinks seconded to continue Item No. 15 Municipal Code Amendment to amend Chapter 8.07, Beekeeping, regarding the regulation, location, and the keeping of bees in the City; Application No(s): MCA-2016-03; Applicant(s): City of Cupertino; Location: Citywide to November 15. This item will be re-noticed. The motion carried unanimously. ORAL COMMUNICATIONS - None CONSENT CALENDAR Wong moved and Sinks seconded to approve the items on the Consent Calendar as presented with the exception of item numbers 6 and 7 which were pulled for discussion. Ayes: Chang, Vaidhyanathan, Paul, Sinks and Wong. Noes: None. Abstain: None. Absent: None. 26 City Council Minutes October 4, 2016 3 3. Subject: Approve the September 20 City Council minutes Recommended Action: Approve the September 20 City Council minutes 4. Subject: Cancel the January 3, 2017 City Council meeting Recommended Action: Cancel the January 3, 2017 City Council meeting 5. Subject: Adoption of the 2016 Economic Development Strategic Plan - a policy document intended to guide the City’s economic development activities over the next three to five years Recommended Action: Adopt Resolution No. 16-103, “A Resolution of the City Council of the City of Cupertino adopting the 2016 Economic Development Strategic Plan (EDSP) in order to guide the City’s Economic Development activities” 6. Subject: Approve the July 1, 2016 through June 30, 2019 terms and conditions of employment for the Cupertino City Employees’ Association (CEA) Recommended Action: 1) Authorize staff to amend the Memorandum of Understanding (MOU) for the Cupertino City Employees’ Association (CEA) based on the attached tentative agreements. 2) Authorize staff to make the necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs associated with the negotiated contract Cupertino employee Jeff Greef representing Cupertino Employee’s Association (CEA) IFPTE Local 2 thanked Council regarding negotiations contract. Cupertino employee Gian Martire representing Cupertino Employee’s Association (CEA) IFPTE Local 2 thanked Council regarding negotiations contract. Wong moved and Sinks seconded to 1) Authorize staff to amend the Memorandum of Understanding (MOU) for the Cupertino City Employees’ Association (CEA) based on the attached tentative agreements; and 2) Authorize staff to make the necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs associated with the negotiated contract. The motion carried unanimously. 7. Subject: Approve the July 1, 2016 through June 30, 2019 terms and conditions of employment for the Unrepresented (Management and Confidential) Employees’ Compensation Program Recommended Action: 1) Adopt Resolution No. 16-104 amending the July 1, 2016 through June 30, 2019 terms and conditions of employment for the Unrepresented (Management and Confidential) Employees’ Compensation Program. 2) Authorize staff 27 City Council Minutes October 4, 2016 4 to make the necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs associated with the agreement Written communications for this item included a clean and redline amended MOU. Sinks moved and Wong seconded to approve the healthcare terms for medical and dental employment for the Unrepresented (Management and Confidential) Employees; and postponed to October 18 the compensation for the Appointed, Elected, and Unrepresented (Management and Confidential) Employees’ to review equity and parity with the comparable cities, retroactive to October 1. The motion carried unanimously. 8. Subject: Approve the July 1, 2016 through June 30, 2019 terms and conditions of employment for the Operating Engineers Local Union No. 3, AFL-CIO (OE3) Recommended Action: 1) Authorize staff to amend the Memorandum of Understanding (MOU) for the Operating Engineers Local Union No. 3, AFL-CIO (OE3). 2) Authorize staff to make the necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs associated with the negotiated contract. 9. Subject: Eighth Amendment to the Agreement between Santa Clara County and the City of Cupertino for Abatement of Weeds Recommended Action: Adopt Resolution No. 16-105 authorizing the City Manager to execute the Eighth Amendment to the Agreement between Santa Clara County and the City of Cupertino for Abatement of Weeds 10. Subject: 2015 Contractual Crossing Guard Services - Project No. 2015-25, contract amendment Recommended Action: Staff recommends Council authorize the City Manager to negotiate and execute an amendment (Attachment A) to the current crossing guard services contract to provide for contractor compensation of $18.64/hr for the 2016/17 school year and $20.61/hr for 2017/18 school year, if the City’s Minimum Wage Ordinance is adopted SECOND READING OF ORDINANCES 11. Subject: Second Reading of an Ordinance of the City Council of the City of Cupertino Amending Title 1, Chapter 1.10, to add Section 1.10.055, “Recording Notice of Violations”; amending Title 19, Chapter 19.08, Section 19.08.030 “Definitions”, 28 City Council Minutes October 4, 2016 5 amending Chapter 19.12 Section 19.12.080 “Application Process” and Section 19.12.180 “Expiration, Extension and Revocation”, amending Chapter 19.28 Section 19.28.120, “Landscape Requirements”, amending Chapter 19.32 Section 19.32.010 “Purpose”, repealing and replacing Chapter 19.56, “Density Bonus”, and amending Chapter 19.104 to add Section 19.104.205, “Message Substitution”; related to permits, procedures, and requirements of the code to conform to law, ensure internal consistency, and provide clarification. Application No(s): MCA-2016-01; Applicant(s): City of Cupertino; Location: citywide Recommended Action: Conduct the second reading of Ordinance No. 16-2149 “An ordinance of the City Council of the City of Cupertino amending Title 1, Chapter 1.10, to add Section 1.10.055, “Recording Notice of Violations”; amending Title 19, Chapter 19.08, Section 19.08.030 “Definitions”, amending Chapter 19.12 Section 19.12.080 “Application Process” and Section 19.12.180 “Expiration, Extension and Revocation”, amending Chapter 19.28 Section 19.28.120, “Landscape Requirements”, amending Chapter 19.32 Section 19.32.010 “Purpose”, repealing and replacing Chapter 19.56, “Density Bonus”, and amending Chapter 19.104 to add Section 19.104.205, “Message Substitution”; related to permits, procedures, and requirements of the code to conform to law, ensure internal consistency, and provide clarification Written communications for this item included an email to Council. Jennifer Griffin spoke on this item. Grace Schmidt City Clerk read the title of the ordinance. Wong moved and Sinks seconded to read Ordinance No. 16-2149 by title only and that the City Clerk’s reading would constitute the second reading thereof. Ayes: Chang, Vaidhyanathan, Paul, Sinks and Wong. Noes: None. Abstain: None. Absent: None. Wong moved and Vaidhyanathan seconded to enact Ordinance No. 16-2149. Ayes: Chang, Vaidhyanathan, Paul, Sinks and Wong. Noes: None. Abstain: None. Absent: None. 12. Subject: Second Reading of an Ordinance of the City Council of the City of Cupertino regarding legal non-conforming single-family garages, and standards for bicycle parking and facilities. Application No(s).: MCA-2016-02; Applicant(s): City of Cupertino; Location: citywide Recommended Action: Conduct the second reading of Ordinance No. 16-2150 “An ordinance of the City Council of the City of Cupertino amending Title 19, Chapter 29 City Council Minutes October 4, 2016 6 19.124 Section 19.124.030 “Regulations for Parking and Keeping Vehicles in Various Zones” and Section 19.124.040 “Regulations for Off-Street Parking”, regarding legal non-conforming single-family garages, and making standards for bicycle parking and facilities consistent with the City of Cupertino 2016 Bicycle Transportation Plan Jennifer Griffin spoke on this item. Grace Schmidt City Clerk read the title of the ordinance. Wong moved and Vaidhyanathan seconded to read Ordinance No. 16-2150 by title only and that the City Clerk’s reading would constitute the second reading thereof. Ayes: Chang, Vaidhyanathan, Paul, Sinks and Wong. Noes: None. Abstain: None. Absent: None. Wong moved and Sinks seconded to enact Ordinance No. 16-2150. Ayes: Chang, Vaidhyanathan, Paul, Sinks and Wong. Noes: None. Abstain: None. Absent: None. 13. Subject: Second reading of Ordinance No. 16-2151 establishing a citywide minimum wage. Recommended Action: Conduct the second reading and enact Ordinance No. 16-2151: "An Ordinance of the City Council of the City of Cupertino to add Chapter 3.37 (Minimum Wage Ordinance) to Title 3 (Revenue and Finance) of the Cupertino Municipal Code to establish a citywide minimum wage" Written communication for this item included a clean and redline amended ordinance. City Clerk Grace Schmidt read the title of the ordinance. Wong moved and Sinks seconded to read Ordinance No. 16-2151 by title only and that the City Clerk’s reading would constitute the second reading thereof. Ayes: Chang, Paul, Sinks and Wong. Noes: Vaidhyanathan. Abstain: None. Absent: None. Wong moved and Sinks seconded to enact Ordinance No. 16-2151. Ayes: Chang, Paul, Sinks and Wong. Noes: Vaidhyanathan. Abstain: None. Absent: None. PUBLIC HEARINGS 14. Subject: Appeal of Kimberly Sandstrom Appeal Regarding Eligibility to Purchase Below Market Rate (BMR) Unit (Continued from September 6) 30 City Council Minutes October 4, 2016 7 Recommended Action: Approve Resolution No. 16-101 regarding the appeal of Ms. Kimberly Sandstrom and affirming the recommendation of the Housing Commission regarding the eligibility of Ms. Sandstrom to purchase a BMR unit The public hearing had already been closed at the September 20 meeting. Council asked questions from staff and deliberated. Vaidhyanathan moved and Chang seconded to adopt Resolution No. 16-101 regarding the appeal of Ms. Kimberly Sandstrom and affirming the recommendation of the Housing Commission regarding the eligibility of Ms. Sandstrom to purchase a BMR unit. Paul offered a friendly amendment to continue the item to the first meeting in November. Vaidhyanathan accepted the friendly amendment. After further discussion, Vaidhyanathan withdrew her motion. Wong moved and Vaidhyanathan seconded to continue the appeal of Ms. Kimberly Sandstrom and affirming the recommendation of the housing commission regarding the eligibility of Ms. Sandstrom to purchase a BMR unit to November 1. The motion carried with Chang and Vaidhyanathan voting no. 15. Subject: Municipal Code Amendment to amend Chapter 8.07, Beekeeping, regarding the regulation, location, and the keeping of bees in the City. Application No(s): MCA- 2016-03; Applicant(s): City of Cupertino; Location: Citywide has been continued to November 15 and will be re-noticed. Recommended Action: Conduct the first reading of the draft ordinance: "An ordinance of the City Council of the City of Cupertino amending section 8.07 of the Cupertino Municipal Code relating to Beekeeping has been continued to November 15 and will be re-noticed Under postponements, this item was continued to November 15 and will be re-noticed. ORDINANCES AND ACTION ITEMS 16. Subject: Establishment of a Friendship City Relationship Recommended Action: Review and consider an application establishing a Friendship City relationship with Taichung, Taiwan, Republic of China Assistant to the City Manager Jaqui Guzman reviewed the staff report. 31 City Council Minutes October 4, 2016 8 Wong moved and Chang seconded to establish a Friendship City relationship with Taichung, Taiwan, Republic of China. The motion carried unanimously. REPORTS BY COUNCIL AND STAFF 17. Subject: Report on Committee assignments and general comments Recommended Action: Report on Committee assignments and general comments Council directed staff to agendize for October 18 a presentation by Cupertino Toyokawa Sister City Committee regarding the recent student delegation. Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 8:15 p.m., Mayor Chang adjourned the meeting. _______________________ Grace Schmidt, City Clerk 32 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2096 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/12/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Request from the Taipei Friendship City Committee for City to Sponsor a Smart City Conference in May of 2017 Sponsors: Indexes: Code sections: Attachments:Staff Report Action ByDate Action ResultVer. City Council10/18/20161 Subject:RequestfromtheTaipeiFriendshipCityCommitteeforCitytoSponsoraSmartCity Conference in May of 2017 Sponsor the proposed Smart City Conference CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™33 OFFICE OF THE CITY MANAGER CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3212 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Request from the Taipei Friendship City Committee for City to Sponsor a Smart City Conference in May of 2017 Recommended Action Sponsor the proposed Smart City Conference Discussion On September 20, 2016, the City established a Friendship City relationship with Taipei, Republic of China. As a key program objective, the Taipei Friendship City Committee proposed to hold a Smart City Conference which would connect local government officials with the proponents of Smart City technology in Taiwan, the United States and potentially other countries. The Committee has proposed to hold this conference in the last week of May, 2017, at a location within the City of Cupertino. The Committee is requesting that the City be an “Official Sponsor” of the conference and agree to be listed as such on any materials. The Committee proposes to fund the costs of this conference by seeking contributions from other Friendship City Committees and potentially charging technology companies for the right to market technology at the conference. The Committee has represented that it is not and will not request any financial assistance from the City for the Smart City Conference. Fiscal Impact By agreeing to sponsor the Smart City Conference, the City would be permitting the Taipei Friendship Committee to use the City name and potentially the City logo to market the conference. The Committee has represented that it is not seeking any financial support from the City for this conference Sustainability Impacts Smart City technologies include technologies and processes that promote environmental efficiency and sustainability, and as such could provide indirect sustainability benefits. Submitted by: David Brandt, City Manager 34 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2094 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/12/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Authorize an additional full-time equivalent (FTE) position in the City Attorney's Office Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Resolution Action ByDate Action ResultVer. City Council10/18/20161 Subject:Authorizeanadditionalfull-timeequivalent(FTE)positionintheCityAttorney's Office AdoptResolutionNo.16-106to:1)IncreaseFTEintheCityAttorney'sOfficefrom3FTEto4 FTEbyaddingaDeputyCityAttorneyposition;and2)Authorizeabudgetadjustmentof $60,000 in the City Attorney's program budget CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™35 ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3220 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Authorize an additional full-time equivalent (FTE) position in the City Attorney’s Office. Recommended Action Adopt Resolution to: (1) Increase FTE in the City Attorney’s Office from 3 FTE to 4 FTE by adding a Deputy City Attorney position. (2) Authorized a budget adjustment of $60,000 in the City Attorney’s program budget. Description As part of the re-evaluation of workload, current staffing levels and use of contract attorney’s in the City Attorney’s Office, staff is recommending the addition one full-time Deputy City Attorney position. The position will assist City departments in a variety of subject areas including but not limited to the following:  Public Records Act, Brown Act, conflicts of interest, public contracts, employment practices, telecommunications, policies & procedures  Principles and practices of government and government programs including industry standards/best practices in assigned area of responsibility which may include but is not limited to Human Resources, City Clerk, Planning, Community Development, Information Technology, Finance, Parks & Recreation, and Public Works Fiscal Impact As this is a new position in the City Attorney’s Office, the fiscal impact in FY16/17 will be a total of $60,000 and an ongoing cost of $154,500 in FY17/18. Prepared by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: David Brandt, City Manager Attachments: A‐ Draft Resolution Adopting additional FTE in the City Attorney’s Office 36 RESOLUTION NO. 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING THE CITY MANAGER TO ADD ONE FULL-TIME EQUIVALENT (FTE) POSITION IN THE CITY ATTORNEY’S OFFICE WHEREAS, the recruitment and hiring of top quality employees is essential to the efficient operation of the City of Cupertino; and WHEREAS, it has been determined to add the following FTE in the City Attorney’s Office: Classification Step 1 Step 2 Step 3 Step 4 Step 5 DEPUTY CITY ATTORNEY $51.73 $54.32 $57.03 $59.88 $62.88 BE IT FURTHER RESOLVED that the City Council of the City of Cupertino hereby approves the additional FTE position. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 18th day of October 2016, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 37 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2093 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/12/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Adopt resolution increasing the employer's contribution for medical and hospitalization insurance for employees under the Unrepresented group, Cupertino Employees's Association, Operating Engineers, Local Union No. 3, Appointed, Elected Officials, and retired annuitant groups. Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Resolution Action ByDate Action ResultVer. City Council10/18/20161 Subject:Adoptresolutionincreasingtheemployer'scontributionformedicaland hospitalizationinsuranceforemployeesundertheUnrepresentedgroup,CupertinoEmployees's Association,OperatingEngineers,LocalUnionNo.3,Appointed,ElectedOfficials,andretired annuitant groups. AdoptResoutionNo.16-107increasingemployer'scontributionformedicalandhospitalization insuranceforemployeesundertheUnrepresented,CupertinoEmployees'Association, OperatingEngineers,LocalUnionNo.3,Appointed,ElectedOfficials,andretiredannuitant groups CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™38 ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3220 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Adopt a resolution increasing the employer's contribution for medical and hospitalization insurance consistent with the Meyers-Geddes State Employees Medical and Hospital Care Act for the Unrepresented (Management and Confidential), Cupertino Employees’ Association (Employees Association), Operating Engineers, Local Union No. 3 (Operating Engineers), Appointed (City Attorney), Elected Official groups and retired annuitants. Recommended Action Adopt the Draft Resolution increasing the employer's contribution for medical and hospitalization insurance for employees under the Unrepresented, Cupertino Employees’ Association, Operating Engineers, Local union No. 3, Appointed, Elected Officials, and retired annuitant groups. Description On October 4, 2016, City Council approved a three year memorandum of understanding (MOU) that extends through June 30, 2019 for Cupertino Employees’ Association and the Operating Engineers, Local Union No. 3. The MOU’s include an increase in the City's health contribution for employee medical insurance effective October 1, 2016 for employee with self-coverage ($733.39/month), employee plus one dependent ($1,246.59/month), and employee plus 2 or more dependents ($1,620.57/month). This item assumes that the same benefit will be extended to the Unrepresented, Appointed, and Elected Official groups for the October 18, 2016 City Council meeting. Adoption of the attached resolution fulfills reporting requirements associated with the Meyers-Geddes Act. Sustainability Impact No sustainability impact. Fiscal Impact 39 This will increase the City’s retiree annuitant medical contribution by $39,130. No budget adjustments are requested because the cost was factored in when calculating total costs of MOU’s that were approved by City Council on October 4, 2016. ___________________________________________ Prepared by: Maria Jimenez, HR Analyst II/Benefits Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: David Brandt, City Manager Attachments: A – Draft Resolution 40 CHANGE – ALL BY GROUP, EQUAL, 3 FIXED (REV. 5/2015) RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO FIXING THE EMPLOYER CONTRIBUTION AT AN EQUAL AMOUNT FOR EMPLOYEES AND ANNUITANT SUNDER THE PUBLIC EMPLOYEES’ MEDICAL AND HOSPITAL CARE ACT WHEREAS, (1) City of Cupertino is a contracting agency under Government Code Section 22920 and subject to the Public Employees’ Medical and Hospital Care Act (the “Act”); and WHEREAS, (2) Government Code Section 22892(a) provides that a contracting agency subject to Act shall fix the amount of the employer contribution by resolution; and WHEREAS, (3) Government Code Section 22892(b) provides that the employer contribution shall be an equal amount for both employees and annuitants, but may not be less than the amount prescribed by Section 22892(b) of the Act; and RESOLVED, (a) That the employer contribution for each employee or annuitant shall be the amount necessary to pay the full cost of his/her enrollment, including the enrollment of family members, in a health benefits plan up to a maximum of: Medical Group Monthly Employer Contribution Single Two-Party Family 001 Management $733.39 $1,246.59 $1,620.57 002 Confidential $733.39 $1,246.59 $1,620.57 003 Employees Association $733.39 $1,246.59 $1,620.57 004 Operating Engineers $733.39 $1,246.59 $1,620.57 005 City Attorney $733.39 $1,246.59 $1,620.57 Plus administrative fees and Contingency Reserve Fund assessments; and be it further RESOLVED, (b) City of Cupertino has fully complied with any and all applicable provisions of Government Code Section 7507 in electing the benefits set forth above; and be it further 41 CHANGE – ALL BY GROUP, EQUAL, 3 FIXED (REV. 5/2015) RESOLVED, (c) That the participation of the employees and annuitants of City of Cupertino shall be subject to determination of its status as an “agency or instrumentality of the state or political subdivision of a State” that is eligible to participate in a governmental plan within the meaning of Section 414(d) of the Internal Revenue Code, upon publication of final Regulations pursuant to such Section. If it is determined that City of Cupertino would not qualify as an agency or instrumentality of the state or political subdivision of a State under such final Regulations, CalPERS may be obligated, and reserves the right to terminate the health coverage of all participants of the employer. RESOLVED, (d) That the executive body appoint and direct, and it does hereby appoint and direct, Position Title or Name of Person to file with the Board a verified copy of this resolution, and to perform on behalf of City of Cupertino all functions required of it under the Act. Passed and Adopted at a regular meeting of the City Council of Cupertino, this 18th day of October, 2016, by the following vote: Vote: Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ______________________ __________________________________ Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 42 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2013 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:9/27/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Approve the terms and conditions of employment for the Unrepresented (Management and Confidential) Employees, Appointed Employees, and Elected officials Sponsors: Indexes: Code sections: Attachments:Staff Report A - Employee Group Salary and Benefits recommended changes B - Koff and Associates Class and Comp Study - Leave schedule C - Draft Resolution amending the Unrepresented Employees' Compensat... D - Draft Redline Unrepresented Compensation Program E - Clean Unrepresented Employees' Compensation program F - Draft Resolution amending the Elected Officials Compensation... G - Draft Redline Elected Officials Compensation Program H - Clean Elected Officials Compensation Program - Changes Accepted - 10-12-16 I - Draft Resolution amending the Appointed Employees Compensation P... J - Draft Redline Appointed Employees' Compensation Program K - Clean Appointed Employees' Compensation Program - Changes Accepted - 10-12-16 Action ByDate Action ResultVer. City Council10/18/20161 Subject:ApprovethetermsandconditionsofemploymentfortheUnrepresented (Management and Confidential) Employees, Appointed Employees, and Elected officials 1.AdoptResolutionNo.16-108amendingtheCompensationProgramfortheUnrepresented (ManagementandConfidential)Employees;and2.AdoptResolutionNo.16-109amendingthe CompensationProgramfortheAppointedEmployees;and3.AdoptResolutionNo.16-110 amendingtheCompensationProgramfortheElectedOfficials;and4.Makethenecessary budgetadjustmentstoensurethattherearesufficientbudgetappropriationstocoverthecosts related to changes to the compensation program CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™43 1 ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3220 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Terms and conditions of employment for the Unrepresented (Management and Confidential) Employees, Appointed Employees, and Elected Officials. Recommended Action 1. Adopt Draft Resolution No. 16-____ amending the Compensation Program for the Unrepresented (Management and Confidential) Employees. 2. Adopt Draft Resolution No. 16-____ amending the Compensation Program for the Appointed Employees. 3. Adopt Draft Resolution No. 16-____ amending the Compensation Program for the Elected Officials. 4. Authorize staff to make the necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs related to changes to the compensation programs. Background At the City Council Meeting of October 4, 2016, Council was presented with the proposed terms and conditions of employment for the Cupertino City Employees’ Association (CEA), the Operating Engineers Local Union No. 3, AFL‐CIO (OE3), and the Unpresented (UNRP) Employee Group. Council approved the terms and conditions of employment for CEA and OE3 and the proposed health and dental changes for the UNRP group in conjunction with the other groups. Council action was postponed on any other changes to the Unrepresented Compensation Program to coincide with the review of the Appointed and Elected Officials’ Compensation Programs. The following summarizes the three programs:  The Unrepresented Compensation Program includes employees in management or confidential positions as adopted by the City Council and may be amended or otherwise modified from time to time. 44 2  The Appointed Compensation Program includes the City Manager and City Attorney, who are evaluated by the City Council on an annual basis. Compensation for these employees is considered on the basis of equity of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public employment in the same labor market.  In the Elected Officials Compensation Program, the Elected Officials’ pay is set forth under the Cupertino Municipal Code 2.16.020 and adopted by action of the City Council and may be amended or as otherwise modified from time to time subject to the limitations in Government Code Section 36516 which provides for increases to Council salaries at a maximum rate of five percent per calendar year. The Code also specifies that any increase in compensation becomes effective at the beginning of the next new term in office. The following table further highlights the key features of the Unrepresented, Appointed, and Elected Officials Compensation Programs: As reflected in the table above, the compensation programs vary from group to group. As applicable, the terms and conditions of employment approved for CEA and OE3 are being proposed for the Unrepresented (Management and Confidential) Employees, Appointed Employees and Elected Officials. Attachment A provides a table representing the proposed salary and benefits changes and the group(s) that the change will impact. The complete terms and conditions are also outlined below: AppointedUnrepresentedElected Administrative Leave X X*N/A Association Memberships and Professional PublicationsX XX Auto Allowance and Mileage Reimbursement X X*X** Deferred Compensation *** Dental Insurance - Employer Contribution X XX Employee Assistance Program X XX Fixed Holidays X XN/A Floating Holidays X XN/A Health Benefit Plan - Employer Contribution X XX Housing Assistance X X*N/A Life Insurance X XX Long-term Disability/Short Term Disability X XN/A Overtime Worked N/A X*N/A* Non-exempt Employees Only PERS (Public Employees' Retirement System)X XX Trainings and Conferences X XX Vacation Accumulation X XN/A Vision Insurance - Employer Contribution X XX Work out of classification/Work in Dual ClassificationN/AXN/A * Exempt Employees Only * Department Heads Only * Program available but no City Contribution * Auto allowance available to classes specified in the compensation program. ** Mileage Reimbursement Only 45 3  Term – 3 years, July 1, 2016 through June 30, 2019  Salary Unrepresented Employees o Cost of Living adjustments (COLAs)  Effective October 1, 2016 – 3.50%, includes Employer Paid Misc. Contribution (EPMC) swap as discussed in the retirement section below, 1% for Tier 1 and .75% for Tier 2.  Effective the first full pay period in July 2017 – 3.25%, includes a .75% EPMC swap for Tier 1 as discussed in the retirement section below.  Effective the first full pay period in July 2018 – 2.50%. Appointed o Cost of Living adjustments (COLAs)  Effective October 1, 2016 – 1%, includes Employer Paid Misc. Contribution (EPMC) swap as discussed in the retirement section below, 1% for Tier 1 and .75% for Tier 2.  Effective the first full pay period in July 2017 – .75%, includes a .75%. EPMC swap for Tier 1 as discussed in the retirement section below. Elected Officials o Cost of Living adjustments (COLAs)  Effective January 1, 2017– 1%, includes Employer Paid Misc. Contribution (EPMC) swap as discussed in the retirement section below, 1% for Tier 1 and .75% for Tier 2.  Effective July 1, 2017 – .75%, includes a .75% EPMC swap for Tier 1 as discussed in the retirement section below.  Market Adjustments (Unrepresented Employees) The City retained the services of Koff and Associates to conduct a salary survey which included base pay and total compensation to determine if market adjustments to base pay were necessary. The base salary of several classifications within this group were found to be below median of market. These adjustments range from 2% up to 12%. For any confidential classification, the City will be making the full equity adjustments effective October 1, 2016. For management classifications, these equities will be phased in over the three year agreement similar to the equities that were phased in between 2012-2015. 46 4  Benefits (Unrepresented Employees, Appointed Employees, and Elected Officials) o Health and Dental changes as noted in the table below. Dental changes reflect 100% of costs paid by the City in the first year and per-dependent coverage increasing from $1,000 to $2,500 annually. In addition, the City has eliminated the excess health provision. o HRA – Effective October 1, 2016, the City has eliminated the HRA contributions of $163 per month. Employees will be able to keep their existing banks and the City will continue to pay the administrative fee for maintaining those banks. o Benefit deductions will change from bi-weekly to bi-monthly. This will make deductions consistent with the timing of benefit payments. Effective October 1, 2016 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1,246.59 134.85 1,381.44 Employee +2 1,620.57 134.85 1,755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1,308.92 134.85 1,443.77 Employee +2 1,701.60 134.85 1,836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1,374.37 134.85 1,509.22 Employee +2 1,786.68 134.85 1,921.53  Retirement Unrepresented Employees and Appointed Employees o Effective October 1, 2016  Tier 1 – Will pay an additional 1% of the Employer Paid Misc. Contribution (EPMC) for a total of 7.25%. 47 5  Tier 2 – Will pay an additional .75% of the Employer Paid Misc. Contribution (EPMC) for a total of 7.00%.  Tier 3 – No changes to this tier, as they pay 50% of normal costs, 6.25%. o Effective first full pay period in July 2017  Tier 1 – Will pay an additional .75% of the Employer Paid Misc. Contribution (EPMC) for a total of 8%.  Tier 2 – No changes to this tier, as they pay 50% of normal costs, 7.00%.  Tier 3 – No changes to this tier, as they pay 50% of normal costs, 6.25%. Elected Officials o Effective January 1, 2017  Tier 1 – Will pay an additional 1% of the Employer Paid Misc. Contribution (EPMC) for a total of 7.25%.  Tier 2 – Will pay an additional .75% of the Employer Paid Misc. Contribution (EPMC) for a total of 7.00%.  Tier 3 – No changes to this tier, as they pay 50% of normal costs, 6.25%. o Effective July 1, 2017  Tier 1 – Will pay an additional .75% of the Employer Paid Misc. Contribution (EPMC) for a total of 8%.  Tier 2 – No changes to this tier, as they pay 50% of normal costs, 7.00%.  Tier 3 – No changes to this tier, as they pay 50% of normal costs, 6.25%.  Short-Term Disability (Unrepresented Employees and Appointed Employees) City paid short-term disability program has a seven day waiting period consistent with the State of California’s short-term disability program. The benefit coverage will be 66.67% or up to a weekly max of $1,615. The maximum benefit period will be 13 weeks and covers short-term disability incidents related to accidents and illness. This same plan was approved by Council for CEA on October 4, 2016. 48 6  Vacation Accruals (Unrepresented Employees and Appointed Employees) Accruals have been increased in 3 of the 5 service time categories as shown below: Service Time Annual Accruals Maximum Accrual 0 - 3 Years 80 Hours 160 Hours 4 - 9 Years 120 Hours 240 Hours 10 – 14 Years 136 160 Hours 272 Hours 15 – 19 Years 160 176 Hours 320 Hours 20 + Years 176 192 Hours 352 Hours  Administrative Leave (Unrepresented Employees and Appointed Employees) In addition to the terms and conditions above, an increase to administrative leave is proposed based on the leave schedule provided by Koff and Associates as part of the Class and Compensation Study (Attachment B). The table below reflects the proposed changes: Current Proposed Appointed 40 hours (5 days) 80 hours (10 days) Department Heads 40 hours (5 days) 80 hours (10 days) Exempt Employees 24 hours (3 days) 40 hours (5 days) Fiscal Impact The City will incur a cost of $578,683 in the first year (FY 2016-17), an additional cost $443,654 in the second year (FY 2017-18) and an additional cost $382,287 in the third year for a total of $1,404,624 in ongoing costs (starting FY 2018-19). A budget adjustment for increased costs in the first year is recommended. When the final budget was approved, costs related to labor were unknown and not included in the final budget. Costs for these changes to the compensation programs are summarized in the table below: Year 1 CostsYear 2 CostsYear 3 CostsTotal Costs APPOINTED 10,766$ 4,070$ 1,520$ 16,356$ ELECTED 13,627$ 3,343$ 3,272$ 20,242$ UNRP 554,290$ 436,241$ 377,495$ 1,368,025$ Total Costs 578,683$ 443,654$ 382,287$ 1,404,624$ 49 7 Prepared by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: David Brandt, City Manager Attachments: A ‐ Employee Group Salary and Benefits recommended changes B - Koff and Associates Class and Compensation Study – Leave Schedule C - Draft Resolution amending the Unrepresented Employees’ Compensation Program D ‐ Draft Redline Unrepresented Employees’ Compensation Program E – Clean Unrepresented Employees’ Compensation Program F ‐ Draft Resolution amending the Elected Officials Compensation Program G ‐ Draft Redline Elected Officials Compensation Program H - Clean Elected Officials Compensation Program I ‐ Draft Resolution amending the Appointed Employees’ Compensation Program J - Draft Redline Appointed Employees’ Compensation Program K - Clean Appointed Employees’ Compensation Program 50 CONFIDENTIAL MGMT DEPT HEADS Cost of Living Adjustments Eff 10/1 3.5% Increase Eff 7/7/17 3.25% Increase Eff 7/8/18 2.50% Increase Yes Yes The following is recommended in the 10/18 Agenda Item: Eff 10/1 - 1.00% Increase Eff 7/7/17 - 0.75% Increase The following is recommended in the 10/18 Agenda Item: Eff 01/01/17 - 1.00% Increase Eff Start of New Term - 0.75% Increase Market Adjustments Yes, All in 1st Year Yes, All in 1st Year Yes, but partial for this year Not Applicable Retirement Rates Employee Contribution to Retirement Increases effective 10/1 by: Tier 1 - 1.00% Tier 2 - 0.75% Tier 3 -No Change Effective 7/8/2017 Tier 1 - 0.75 Tier 2 - No Change Tier 3 -No Change Yes Yes The following is recommended in the 10/18 Agenda Item The following is recommended in the 10/18 Agenda Item Health Effective October 1, 2016 City Max Health Contribution Employee - 733.39 Employee +1 - 1,246.59 Employee +2 - 1,620.57 January 1, 2018 City Max Health Contribution Employee - 769.95 Employee +1 - 1,308.92 Employee +2 - 1,701.60 January 1, 2019 City Max Health Contribution Employee - 808.45 Employee +1 - 1,374.37 Employee +2 - 1,786.68 Yes Yes The following is recommended in the 10/18 Agenda Item The following is recommended in the 10/18 Agenda Item HRA Effective 10/1/16 Eliminate $163/Month Yes Yes The following is recommended in the 10/18 Agenda Item The following is recommended in the 10/18 Agenda Item Dental $134.85 City Paid Contribution $2,500/Dependent Coverage Yes Yes The following is recommended in the 10/18 Agenda Item The following is recommended in the 10/18 Agenda Item Short Term Disability N/A Covered under the State Plan Yes The following is recommended in the 10/18 Agenda Item N/A Vacation Service Time Annual Accruals Maximum Accrual 0 - 3 Years 80 Hours 160 Hours 4 - 9 Years 120 Hours 240 Hours 10 – 14 Years 136 160 Hours 272 Hours 15 – 19 Years 160 176 Hours 320 Hours 20 + Years 176 192 Hours 352 Hours Yes Yes The following is recommended in the 10/18 Agenda Item N/A Admin Leave Increase from 24 hours to 40 hours mgmt Increase from 40 hours to 80 hours dept head N/A no overtime exempt employees N/A no overtime exempt employees N/A no overtime exempt employees Yes increase to 40 Yes increase to 80 Yes increase to 80 N/A Yes Recommended for 10/4 Agenda, postponed to 10/18 Recommended for 10/4 Agenda, postponed to 10/18 Salary/Benefit Change Recommended for 10/4 Agenda, postponed to 10/18 Yes, but phased in over 3 Years Recommended for 10/4 Agenda, postponed to 10/18 Yes Yes EMPLOYEE GROUP CEA OE3 UNREP APPOINTED ELECTED 51 Appendix V City of Cupertino Leave Detail February 2016 DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS Leave Vacation (All)15 16 15 15 16 N/R 17 15 15 15 16 15 27 21 16 Unrep Dept. Heads / Exec. Management 41.5 20 29.2 29 Management 41.5 20 29.2 29 AFSCME 17 17 SEIU 17 17 SEA / Conf 26 26 City Attorney 34 34 Holidays (All)14.5 15 10 14 13 N/R 12 12 14 14 13 13 13 13.5 10 13 Unrep Dept. Heads / Exec. Management 11 11 Management 14.5 15 AFSCME 14.5 15 SEIU 14.5 15 Administrative (All)N/R Unrep 3 16 8 12 Dept. Heads / Exec. Management 5 10 5 5 16 10 20 6 10 8.7 11 10 Management 6.5 12.5 5 5 10 5 10 6.2 11 7 Mid-Management / Conf 3 5 5 AFSCME 2 3 3 SEIU Supervisory 2 2.0 CEO / MNT 2 2 SMMA 6 6 SEA Exempt 2.5 2.5 City Attorney 7.5 7.5 TEA / Conf 3 3 ` BASED ON A 5 YEAR EMPLOYEE MedianTown of Los Gatos City of Morgan Hill City of Mountain View City of Palo Alto City of Redwood City City of San Jose City of San Mateo City of Menlo ParkAGENCY City of Santa Clara City of Saratoga City of Sunnyvale City of Milpitas City of Cupertino City of Campbell City of Gilroy City of Los Altos 52 RESOLUTION 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING THE UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM WHEREAS, the City Council desires to amend the Unrepresented Employees’ Compensation Program. NOW, THEREFORE, BE IT RESOLVED that the Unrepresented Compensation Program be amended, which is incorporated in this resolution by this reference and attached as Exhibit A. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 18th day of October 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 53 1 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated either as management or confidential positions shall be eligible for participation under the Unrepresented Employees Compensation Program as hereby adopted by action of the City Council and as same may be amended or as otherwise modified from time to time. It is the stated purpose of this Compensation Program to give recognition to and to differentiate those eligible employees from represented employees who achieve economic gain and other conditions of employment through negotiation. It is the intent that through this policy and those which are adopted or as may be modified or rescinded from time to time such recognition may be given. Eligibility for inclusion with this Compensation program is limited to persons holding positions as management or confidential employees as defined under section 2.52.290 of the Cupertino Municipal Code. These are as designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as unrepresented. MANAGEMENT AND CONFIDENTIAL CLASSIFICATIONS: Classification Title Accountant I Accountant II Accounting Technician I Accounting Technician II Administrative Assistant Assistant City Attorney Assistant City Manager Assistant Director of Community Development Assistant Director of Public Works Assistant to the City Manager Building Official Business Systems Analyst/Program Manager Capital Improvement Program Manager Chief Technology Officer/Director of Information Services (Department Head) City Architect City Clerk City Engineer 54 2 Community Relations Coordinator Deputy Building Official Deputy City Attorney Deputy City Clerk Deputy City Manager Director of Administrative Services (Department Head) Director of Community Development (Department Head) Director of Recreation and Community Services (Department Head) Director of Public Works Economic Development Manager Environmental Programs Manager Executive Assistant to the City Attorney Executive Assistant to the City Manager Finance Manager GIS Coordinator GIS Program Manager Human Resources Assistant Human Resources Analyst I Human Resources Analyst II Human Resources Assistant Human Resources Manager Human Resources Technician I Human Resources Technician II Information Technology Assistant Information Technology Manager Human Resources Manager Legal Services Manager Management Analyst Network Specialist Park Restoration and Improvement Manager Permit Center Manager City PlannerPlanning Manager Public Information Officer Public Affairs Director Manager Public Works Projects Manager Maintenance SupervisorPublic Works Supervisor Recreation Manager Recreation Supervisor Economic Development Manager Senior Accountant Senior Civil Engineer Senior Recreation Supervisor Senior Management Analyst Service Center Superintendent Sustainability Manager 55 3 Web Specialist In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council, April 1, 1974 Revised 10/74, 3/78, 6/81, 6/82, 7/85, 7/87, 1/89, 7/90, 4/91, 5/91, 7/92, 6/95, 6/96, 7/99, 6/02, 7/04, 6/05, 04/07, 7/10, 10/12, 12/12, 7/13,11/13,12/13,3/14, 7/14, 11/15, 6/16, 10/16 56 4 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City’s ability to pay consistent with its fiscal policies. a. Effective the first full pay period in July 2013after adoption by the City Council, a 3.5% salary increase will be added to the salary range of each classification in this unit. b. Effective the first full pay period in July 2017, a 3.25% salary increase will be added to the salary range of each classification in this unit. c. Effective the first full pay period in July 2018, a 2.5% salary increase will be added to the salary range of each classification in this unit. a 1.5% salary increase will be added to the salary ranges of classifications in this group. Effective the first full pay period in July 2014, a 1.5% salary increase will be added to the salary ranges of classifications in this group. Effective the first full pay period in July 2015, a 1.25% salary increase will be added to the salary ranges of classification in this group. See Attachment A for a list of paygrades. In addition, equity adjustments as identified in the City’s 2013 2016 total compensation survey shall occur over the next three years. Effective the first pay period in July 2013, a .46% equity adjustment will be added to the salary ranges of classifications as noted in Attachment A. Effective the first pay period in July, 2014, a .97% equity adjustment will be added to the salary ranges of classifications as noted in Attachment A. Effective the first pay period in July, 2015, a 1.21% equity adjustment will be added to the salary ranges of classifications as noted in Attachment A. per Attachment A. Adopted by Action of the City Council April 1, 1974 Revised 8/78, 7/79, 6/80, 7/92, 6/95, 10/12, 7/13, 10/16 57 5 City of Cupertino UNREPRESENTED EMPLOYEES’COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY A. Management Personnel It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. B. Non-Management Personnel When authorized by their supervisor, a non-management person may attend a conference, meeting or training session subject to the stated terms and conditions included herein for each with payment toward or reimbursement of certain expenses incurred as defined below for each. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40- mile distance from Cupertino when traveling to Alameda County. C. Meetings A “meeting” shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. 58 6 D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City’s operations or to enhance the attendee’s capabilities in the discharge of assigned duties and responsibilities. III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee’s home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this 59 7 instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non- conference lodging policy described in the next paragraph should be followed to find another comparable hotel. Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. 60 8 No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City-related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; of those besides economic development staff; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE AUTHORIZATION A. Budgetary Limitations Notwithstanding any attendance authorization contained herein, reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. B. Conference Attendance Attendance at conferences or seminars by employees must be approved by their supervisor. C. Meetings Any employee, management or non-management, may attend a meeting when authorized by their supervisor. 61 9 D. Training Sessions Any employee, management or non-management, may attend a training session when authorized by their supervisor. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City’s behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee’s return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Revised 7/83, 7/85, 7/87, 7/88, 7/91, 7/92, 12/07,7/10 62 10 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees in the following classifications shall be paid on a monthly basis the following automobile allowance: Classification Allowance Director of Administrative Services 300.00 Director of Community Development 300.00 Assistant City Manager 300.00 Director of Parks and Recreation and Community Services 300.00 Director of Public Works 300.00 Chief Technology Officer/ 300.00 Director of Information Services City Clerk 250.00 Public Affairs Director 250.00 Senior Civil Engineer 250.00 City Engineer 250.00 Public Affairs Manager 200.00 Deputy City Manager 200.00 Recreation Supervisor 200.00 Recreation Manager 200.00 Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council April 1, 1974 Revised 7/74, 5/79, 6/80, 7/81, 8/84, 7/87, 1/89, 7/90, 63 11 7/92, 6/96, 8/99, 6/00, 9/01, 1/02, 6/02, 10/07, 7/10, 7/11, 10/12, 12/12, 7/13, 11/15, 10/16 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Each claim for City sponsored membership shall be submitted by or through the Department Head with their concurrence to the City Manager for approval. Subscriptions to or purchase of professional and technical publications may be provided at City expense when such have been authorized by the Department Head providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council April 1, 1974 Revised 7/92 64 12 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED EXEMPT POSITIONS: Management and non-represented professional employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor’s approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. NON-EXEMPT POSITIONS: Confidential employees are eligible for overtime or compensation time, at their discretion, for the time worked in excess of 40 hours per week. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, where forty hours have been worked in the same seven day period. COMPENSATORY TIME OFF At the employee’s discretion, compensatory time (CTO) may be granted for overtime worked at the rate of time and one-half for each hour worked in lieu of compensation in cash. Employees, who have previously earned CTO, shall be allowed to schedule CTO at the employee’s discretion provided (1) that prior supervisory approval has been obtained and (2) the request is made in writing. CTO may be accrued for up to 80 hours per calendar year. Any CTO earned exceeding 80 hours will be paid at the rate of time and one-half. An employee may carry over the unused balance into the next calendar year. Any unused carryover balance will be automatically paid out at the end of the calendar year. An employee may exercise his/her option twice each calendar year to convert any/or all accumulated compensatory time to cash. Adopted by Action of the City Council April 1, 1974 Revised 6/80, 7/91, 7/92, 6/96, 7/97, 4/07, 7/13, 10/16 65 13 City of Cupertino UNREPRESENTED EMPLOYEES’COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in Management and Confidential positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee’s gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 *Dental Coverage: Effective the first month after Council adoption of MOU, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of the City Council September 16, 1974 66 14 Revised 7/75, 7/76, 7/77, 8/78, 7/79, 6/80, 6/81, 7/81, 6/82, 7/83, 7/84, 7/88, 7/89, 7/90, 7/91, 7/92, 6/95, 7/97, 7/99, 6/00, 6/02, 7/04, 6/05, 4/07,12/12, 7/13, 10/16 67 15 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year’s Day 2. Martin Luther King Day 3. Presidents’ Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran’s Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year’s Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 7, 1975 Revised 6/80, 6/89, 7/92, 7/99, 7/13 68 16 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 9 LIFE, AND LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for Management and Confidential employees that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee’s annual salary to a maximum of $250,000.00. Employees occupying unrepresented positions may enroll in the disability income program and the life insurance program offered if eligible under the contract provisions of the policy and the personnel rules of the City. The full cost of premiums for these programs shall be paid by the City for such employees. Adopted by Action of the City Council September 16, 1976 Revised 7/76, 6/80, 6/81, 6/82, 6/92, 10/16 69 17 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for management and confidential employees for services performed for the City. The City participates in the California Public Employees’ Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent management and confidential employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 7, 1975 Revised 6/80, 7/87, 7/92, 7/99 70 18 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES’ RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective in the first full pay period in July 2013, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 4.5% of applicable salary and each employee agrees to pay 3.5% of applicable salary. Effective in the first full pay period in July 2014, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 3.0% of applicable salary and each employee agrees to pay 5.0% of applicable salary. Effective in the first full pay period in July 2015, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 1.75% of applicable salary and each employee agrees to pay 6.25% of applicable salary. The City agrees to pay the employer’s contribution rate to the Public Employees Retirement System to the extent required by law and the parties acknowledge that by January 1, 2018 the employees are required to pay 50% of the normal cost rate as determined by CalPERS. Effective the first full pay period after adoption of this agreement by the City Council, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation. 71 19 Effective in the first full pay period in July 2013, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 3.5 % of applicable salary and each employee agrees to pay 3.5% of applicable salary. Effective in the first full pay period in July 2014, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 2.0 % of applicable salary and each employee agrees to pay 5.0% of applicable salary. Effective in the first full pay period in July 2015, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75 % of applicable salary and each employee agrees to pay 6.25% of applicable salary. The City agrees to pay the employer’s contribution rate to the Public Employees Retirement System to the extent required by law and the parties acknowledge that by January 1, 2018 the employees are required to pay 50% of the normal cost rate as determined by CalPERS. Effective the first full pay period after and adoption of this agreement by the City Council, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council June, 1981 Revised 6/87, 6/89, 7/90, 7/91, 7/92, 6/03, 7/04, 4/07, 7/10, 10/12, 12/12, 7/13, 10/16 72 20 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in Management and Confidential positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers. *Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 1983 Revised 7/87, 7/88, 7/89, 7/90, 7/91, 7/92, 6/95, 7/99, 4/07, 10/12, 10/16 73 21 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The department heads shall receive eighty forty (4080) hours of administrative leave with pay per year. Unrepresented employees exempt from the provisions of the Fair Labor Standards Act shall receive twenty-fourforty (2440) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July, 1988 Revised 7/92, 7/97, 7/99, 7/10, 12/12, 10/16 74 22 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of Management and Confidential employees and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council June 17, 1996 75 23 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 15 VACATION ACCUMULATION The department heads shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Benefited full-time employees accrue vacation in accordance with the following schedule. Benefited employees who work less than a full-time work schedule accrue vacation in accordance with the following schedule on a pro-rated basis. Service Time Hrs of Accrual Per Pay Period Annual Accruals Maximum Accrual 0 - 3 Years 3.08 80 Hours 160 Hours 4 - 9 Years 4.62 120 Hours 240 Hours 10 – 14 Years 5.24 136 160 Hours 272 Hours 15 – 19 Years 6.16 160 176 Hours 320 Hours 20 + Years 6.77 176 192 Hours 352 Hours An employee may accrue no more vacation credit than twice the annual rate being earnedwhat is listed above. VACATION CREDITS The hiring manager, with the approval of the department head and the City Manager, may offer a vacation bank of up to 120 hours of vacation to a prospective candidate in the Unrepresented group. These hours do not vest for payoff purposes if the employee leaves service. Adopted by Action of the City Council July 7, 1997 Revised 6/99, 7/10, 12/12, 7/13, 10/16 76 24 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the department heads pursuant to Resolution No. 15-092. Adopted by Action of the City Council July 7, 1997 Revised 7/99, 7/10, 8/12, 10/15 77 25 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE – EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1997 Revised 7/99, 6/02, 6/03, 7/10, 10/12 78 26 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 18 WORK OUTR OF CLASSIFICATION/WORK IN DUAL CLASSIFICATION Work Out of Classification – Temporary assignment, approved in advance by the department head, to a classification in a higher pay grade shall be compensated at the Step 1 rate of the higher classification or at a rate five (5) percent greater than that of the regular position, whichever is greater, for the number of hours assigned. In order to qualify for out-of- classification pay, an employee shall work a minimum of eight (8) hours per day in the temporary assignment. Out of classification compensation shall not be used as a substitute for the permanent classification or reclassification of positions. An employee may be assigned to work in a higher class when there is a vacant position, either temporary (incumbent on leave of absence) or permanent (vacant position which has not been filled), or when an employee assumes additional work that would otherwise be performed by consultants which results in a cost savings to the City. All requests for out of classification compensation must be approved by the Human Resources Director. Persons approved to work out of class will continue to receive salary step adjustments in their regular classification based upon satisfactory performance. The out of class salary step will be adjusted accordingly in accordance to the policy set forth herein when the employee’s salary in the permanent classification is adjusted. Work in Dual Classifications – The City Manager may, in his or her sole discretion, grant a pay differential up to five percent (5%) above the higher base salary to an employee assigned by the City Manager to perform all of the duties of another position in addition to the employee’s regular duties, provided that a differential of dual assignments under this provision shall only be paid where the additional assignment is to a position equivalent to the level of the employee’s regular position in a different department or division than the employee’s regular classification, the duration of the additional assignment is for a period of one or more months, and the published base salary for the equivalent level position is the same or lower than the published salary for the employee’s current classification such that the employee does not quality for working out of class pay. Adopted by Action of the City Council October 2016 Revised 79 27 City of Cupertino Listing of Unrepresented Classifications by Salary Rate or Pay Grades Effective July 1, 2013 (Res. No. 13-061) Amended 11/19/13 (Res. No. 13-099) Amended 12/17/13 (Res. No. 13-108) Amended 3/18/14 (Res. No. 14-130) Amended 11/3/14 (Res. No. 14-209) Amended 11/3/2015 (Res. No. 15-099 ) Amended 6/21/16 (Res. No. 16- ) Amended 10/4/16 (Res. No. ) Amended 10/18/16 (Res. No. ) 80 28 CITY OF CUPERTINO CLASSES AND POSITIONS EFFECTIVE JULY 1, 2013- JUNE 30, 2016 The salaries, wages or rates pay per month for those officers and employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Salary Effective July 1, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant City Manager $14,137 $14,844 $15,857 $16,366 $17,184 Director of Administrative Services $12,075 $12,679 $13,313 $13,979 $14,678 Director of Community Development $11,885 $12,479 $13,103 $13,758 $14,446 Director of Recreation and Community Service $12,595 $13,225 $13,887 $14,581 $15,310 Director of Public Works $12,852 $13,494 $14,169 $14,878 $15,621 Salary Effective July 1, 2014 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant City Manager $14,350 $15,067 $15,820 $16,611 $17,422 Director of Administrative Services $12,256 $12,869 $13,513 $14,188 $14,898 Director of Community Development $12,144 $12,751 $13,389 $14,058 $14,761 Director of Recreation and Community Service $12,784 $13,424 $14,095 $14,800 $15,540 Director of Public Works $13,045 $13,697 $14,382 $15,101 $15,856 Salary Effective July 1, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant City Manager $14,529 $15,255 $16,018 $16,819 $17,660 Director of Administrative Services $12,409 $13,030 $13,681 $14,366 $15,084 Director of Community Development $12,399 $13,019 $13,670 $14,353 $15,071 Director of Recreation and Community Service $12,944 $13,591 $14,271 $14,985 $15,734 Director of Public Works $13,208 $13,868 $14,561 $15,290 $16,054 81 29 CITY OF CUPERTINO CLASSES AND POSITIONS BY PAY GRADE MANAGEMENT CLASSIFICATIONS EFFECTIVE JULY 1, 2013 – JUNE 30, 2016 Salary Effective July 1, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant City Attorney $11,265 $11,828 $12,420 $13,041 $13,693 Assistant Director of Public Works $10,274 $10,787 $11,327 $11,893 $12,488 Assistant to the City Manager $7,910 $8,305 $8,721 $9,157 $9,614 Building Official $9,339 $9,806 $10,297 $10,811 $11,352 Capital Improvement Program Manager $9,328 $9,794 $10,284 $10,798 $11,338 City Clerk $8,152 $8,559 $8,987 $9,437 $9,909 City Planner $9,395 $9,865 $10,358 $10,876 $11,420 Deputy City Attorney $8,105 $8,511 $8,936 $9,383 $9,852 Economic Development Mgr $9,383 $9,852 $10,345 $10,862 $11,405 Environmental Programs Manager $7,792 $8,182 $8,591 $9,021 $9,472 Finance Manager $9,428 $9,899 $10,394 $10,914 $11,460 Human Resources Manager $9,328 $9,794 $10,284 $10,798 $11,338 Information Technology Manager $9,074 $9,528 $10,004 $10,504 $11,030 Park Restoration and Improvement Manager $9,328 $9,794 $10,284 $10,798 $11,338 Public Affairs Director $9,074 $9,528 $10,004 $10,504 $11,030 Public Works Project Manager $7,962 $8,360 $8,778 $9,217 $9,678 Public Works Supervisor $7,118 $7,474 $7,847 $8,240 $8,652 Recreation Supervisor $6,955 $7,303 $7,668 $8,052 $8,454 Senior Civil Engineer $9,405 $9,876 $10,370 $10,888 $11,433 Senior Management Analyst $7,304 $7,669 $8,052 $8,455 $8,878 Senior Recreation Supervisor $7,668 $8,052 $8,454 $8,877 $9,321 Sustainability Manager $7,792 $8,182 $8,591 $9,021 $9,472 Salary Effective July 1, 2014 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant City Attorney $11,434 $12,006 $12,606 $13,236 $13,898 Assistant Director of Public Works $10,539 $11,066 $11,620 $12,201 $12,811 Assistant to the City Manager $8,028 $8,430 $8,851 $9,294 $9,759 Building Official $9,479 $9,953 $10,451 $10,974 $11,522 Capital Improvement Program $9,468 $9,941 $10,438 $10,960 $11,508 82 30 Manager City Clerk $8,424 $8,845 $9,287 $9,752 $10,239 City Planner $9,680 $10,164 $10,672 $11,206 $11,766 Deputy City Attorney $8,227 $8,638 $9,070 $9,524 $10,000 Economic Development Mgr $9,630 $10,111 $10,617 $11,147 $11,705 Environmental Programs Manager $7,909 $8,305 $8,720 $9,156 $9,614 Finance Manager $9,802 $10,292 $10,807 $11,347 $11,914 Human Resources Manager $9,802 $10,292 $10,807 $11,347 $11,914 Information Technology Manager $9,311 $9,776 $10,265 $10,778 $11,317 Park Restoration and Improvement Manager $9,468 $9,941 $10,438 $10,960 $11,508 Public Affairs Director $9,311 $9,776 $10,265 $10,778 $11,317 Public Works Project Manager $8,188 $8,598 $9,027 $9,479 $9,953 Public Works Supervisor $7,224 $7,586 $7,965 $8,363 $8,781 Recreation Supervisor $7,060 $7,413 $7,783 $8,172 $8,581 Senior Civil Engineer $9,718 $10,204 $10,715 $11,250 $11,813 Senior Management Analyst $7,659 $8,042 $8,445 $8,867 $9,310 Senior Recreation Supervisor $7,783 $8,172 $8,581 $9,010 $9,461 Sustainability Manager $7,909 $8,305 $8,720 $9,156 $9,614 Salary Effective July 1, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant City Attorney $11,577 $12,156 $12,763 $13,402 $14,072 Assistant Director of Public Works $10,813 $11,354 $11,921 $12,518 $13,143 Assistant to the City Manager $8,129 $8,535 $8,962 $9,410 $9,881 Building Official $9,598 $10,078 $10,582 $11,111 $11,666 Capital Improvement Program Manager $9,586 $10,066 $10,569 $11,097 $11,652 City Clerk $8,720 $9,156 $9,614 $10,095 $10,600 City Planner $9,985 $10,485 $11,009 $11,559 $12,137 Deputy City Attorney $8,330 $8,746 $9,184 $9,643 $10,125 Economic Development Mgr $9,880 $10,374 $10,892 $11,437 $12,009 Environmental Programs Manager $8,008 $8,408 $8,829 $9,270 $9,734 Finance Manager $10,221 $10,732 $11,269 $11,832 $12,424 Human Resources Manager $10,221 $10,732 $11,269 $11,832 $12,424 Information Technology Manager $9,554 $10,032 $10,534 $11,060 $11,613 Park Restoration and Improvement Manager $9,586 $10,066 $10,569 $11,097 $11,652 Public Affairs Director $9,554 $10,032 $10,534 $11,060 $11,613 Public Works Project Manager $8,426 $8,848 $9,290 $9,755 $10,242 Public Works Supervisor $7,315 $7,680 $8,065 $8,468 $8,891 Recreation Supervisor $7,148 $7,505 $7,881 $8,275 $8,688 Senior Civil Engineer $10,059 $10,562 $11,090 $11,645 $12,227 83 31 Senior Management Analyst $8,069 $8,473 $8,896 $9,341 $9,808 Senior Recreation Supervisor $7,881 $8,275 $8,688 $9,123 $9,579 Sustainability Manager $8,008 $8,408 $8,829 $9,270 $9,734 CITY OF CUPERTINO CLASSES AND POSITIONS BY PAY GRADE CONFIDENTIAL CLASSIFICATIONS EFFECTIVE JULY 1, 2013 – JUNE 30, 2016 Salary Effective July 1, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Accountant $6,258 $6,571 $6,900 $7,245 $7,607 Accounting Technician $5,780 $6,069 $6,373 $6,691 $7,026 Administrative Assistant $5,195 $5,454 $5,727 $6,014 $6,314 Community Relations Coordinator $5,989 $6,288 $6,603 $6,933 $7,279 Deputy City Clerk $5,365 $5,633 $5,915 $6,211 $6,521 Executive Assistant to the City Manager $5,733 $6,019 $6,320 $6,636 $6,968 GIS Coordinator $6,059 $6,361 $6,680 $7,014 $7,364 Human Resources Analyst $6,320 $6,636 $6,968 $7,316 $7,682 Human Resources Analyst II $6,968 $7,316 $7,682 $8,066 $8,470 Human Resources Assistant $4,894 $5,138 $5,395 $5,665 $5,948 Human Resources Technician $5,780 $6,069 $6,373 $6,691 $7,026 Human Resources Technician II $6,373 $6,691 $7,026 $7,377 $7,746 I.T. Assistant $5,007 $5,257 $5,520 $5,796 $6,086 Legal Services Manager $5,739 $6,026 $6,327 $6,644 $6,976 Management Analyst $6,811 $7,152 $7,509 $7,885 $8,279 Network Specialist $6,612 $6,942 $7,289 $7,654 $8,036 Web Specialist $6,487 $6,811 $7,152 $7,509 $7,885 Salary Effective July 1, 2014 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Accountant I $5,804 $6,094 $6,399 $6,719 $7,055 Accountant II $6,399 $6,719 $7,055 $7,407 $7,778 Accounting Technician I $5,438 $5,710 $5,996 $6,296 $6,610 Accounting Technician II $5,996 $6,296 $6,610 $6,941 $7,288 Administrative Assistant $5,273 $5,536 $5,813 $6,104 $6,409 Community Relations Coordinator $6,078 $6,382 $6,702 $7,037 $7,389 Deputy City Clerk $5,756 $6,044 $6,346 $6,663 $6,996 Executive Assistant to the City Manager $5,937 $6,234 $6,545 $6,873 $7,216 GIS Coordinator $6,308 $6,623 $6,955 $7,302 $7,668 Human Resources Analyst $6,631 $6,963 $7,311 $7,676 $8,060 Human Resources Analyst II $7,311 $7,676 $8,060 $8,463 $8,886 84 32 Human Resources Assistant $4,977 $5,226 $5,487 $5,762 $6,050 Human Resources Technician I $5,438 $5,710 $5,996 $6,296 $6,610 Human Resources Technician II $5,996 $6,296 $6,610 $6,941 $7,288 I.T. Assistant $5,332 $5,599 $5,879 $6,173 $6,482 Legal Services Manager $5,961 $6,259 $6,572 $6,901 $7,246 Management Analyst $7,143 $7,500 $7,875 $8,269 $8,682 Network Specialist $6,821 $7,162 $7,520 $7,896 $8,291 Senior Accountant $7,407 $7,778 $8,167 $8,575 $9,004 Web Specialist $6,584 $6,913 $7,259 $7,622 $8,003 Salary Effective July 1, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Accountant I $5,930 $6,227 $6,538 $6,865 $7,208 Accountant II $6,538 $6,865 $7,208 $7,569 $7,947 Accounting Technician I $5,506 $5,782 $6,071 $6,374 $6,693 Accounting Technician II $6,071 $6,374 $6,693 $7,028 $7,379 Administrative Assistant $5,339 $5,606 $5,886 $6,180 $6,489 Community Relations Coordinator $6,154 $6,462 $6,785 $7,125 $7,481 Deputy City Clerk $6,222 $6,534 $6,860 $7,203 $7,563 Executive Assistant to the City Manager $6,162 $6,470 $6,794 $7,133 $7,490 GIS Coordinator $6,589 $6,919 $7,265 $7,628 $8,010 Human Resources Analyst $6,989 $7,339 $7,706 $8,091 $8,496 Human Resources Analyst II $7,706 $8,091 $8,496 $8,920 $9,366 Human Resources Assistant $5,049 $5,302 $5,567 $5,845 $6,138 Human Resources Technician I $5,506 $5,782 $6,071 $6,374 $6,693 Human Resources Technician II $6,071 $6,374 $6,693 $7,028 $7,379 I.T. Assistant $5,718 $6,004 $6,304 $6,620 $6,951 Legal Services Manager $6,208 $6,518 $6,844 $7,187 $7,546 Management Analyst $7,525 $7,901 $8,296 $8,711 $9,147 Network Specialist $7,046 $7,399 $7,769 $8,157 $8,565 Senior Accountant $7,569 $7,947 $8,345 $8,762 $9,200 Web Specialist $6,666 $7,000 $7,350 $7,717 $8,103 AMENDED November 13, 2013 Salary Effective November 13, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Assistant Director of Community Development $9,829 $10,321 $10,837 $11,379 $11,948 Salary Effective July 1, 2014 Assistant Director of Community Development $9,977 $10,475 $10,999 $11,549 $12,127 85 33 Salary Effective July 1, 2015 Assistant Director of Community Development $10,101 $10,606 $11,137 $11,694 $12,278 AMENDED December 17, 2013 Salary Effective December 17, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Service Center Superintendent $8,861 $9,304 $9,769 $10,258 $10,771 Salary Effective July 1, 2014 Service Center Superintendent $8,994 $9,443 $9,916 $10,411 $10,932 Salary Effective July 1, 2015 Service Center Superintendent $9,106 $9,562 $10,040 $10,542 $11,069 AMENDED November 3, 2015 Salary Effective November 3, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Chief Technology Officer/Director of Information Services $12,409 $13,063 $13,750 $14,438 $15,159 AMENDED July 1, 2016 Salary Effective July 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 Business Systems Analyst/Program Manager $7,047 $7,399 $7,769 $8,157 $8,565 City Engineer $11,873 $12,467 $13,090 $13,745 $14,432 Deputy City Manager $10,757 $11,295 $11,859 $12,452 $13,075 GIS Program Manager $8,198 $8,608 $9,039 $9,490 $9,965 Maintenance Supervisor $7,315 $7,680 $8,065 $8,468 $8,891 Public Information Officer $8,129 $8,535 $8,962 $9,410 $9,881 ATTACHMENT A CLASSES AND POSITIONS BY PAY GRADE EFFECTIVE OCTOBER 1, 2016 – JUNE 30, 2019 Salary Effective October 1, 2016 86 34 Classification Step 1 Step 2 Step 3 Step 4 Step 5 ACCOUNTANT I $35.41 $37.18 $39.04 $41.00 $43.05 ACCOUNTANT II $39.04 $40.99 $43.04 $45.19 $47.45 ACCOUNTING TECHNICIAN $36.25 $38.06 $39.96 $41.96 $44.06 ADMINISTRATIVE ASSISTANT $31.88 $33.47 $35.15 $36.91 $38.75 ASSISTANT CITY ATTORNEY $71.89 $75.49 $79.26 $83.23 $87.39 ASSISTANT CITY MGR - COMM DEV $90.22 $94.74 $99.47 $104.45 $109.67 ASSISTANT DIRECTOR COMM DEV $63.09 $66.25 $69.56 $73.04 $76.69 ASSISTANT TO THE CITY MANAGER $50.48 $53.01 $55.66 $58.44 $61.36 ASST DIR PUBLIC WORKS ENG $67.15 $70.51 $74.04 $77.74 $81.62 BUILDING OFFICIAL $57.31 $60.18 $63.19 $66.35 $69.66 BUSINESS SYSTEMS ANALYST $45.02 $47.27 $49.64 $52.12 $54.73 CAPITAL IMPV PROGRAM MGR $57.24 $60.11 $63.11 $66.27 $69.58 CITY ARCHITECT $46.68 $49.01 $51.46 $54.03 $56.74 CITY CLERK $53.60 $56.28 $59.09 $62.05 $65.15 CITY ENGINEER $63.95 $67.15 $70.51 $74.04 $77.74 CITY PLANNER $59.63 $62.61 $65.74 $69.03 $72.48 COMMUNITY RELATIONS COORDINATOR $36.75 $38.59 $40.52 $42.55 $44.67 DEPARTMENT HEAD $77.44 $81.32 $85.38 $89.65 $94.13 DEPUTY BUILDING OFFICIAL $53.64 $56.32 $59.13 $62.09 $65.19 DEPUTY CITY ATTORNEY $51.73 $54.32 $57.03 $59.88 $62.88 DEPUTY CITY CLERK $38.25 $40.16 $42.17 $44.28 $46.49 DEPUTY CITY MANAGER $61.96 $65.06 $68.31 $71.72 $75.31 DIRECTOR OF PUBLIC WORKS $82.02 $86.12 $90.43 $94.95 $99.70 ECONOMIC DEVELOPMENT MANAGER $59.00 $61.95 $65.04 $68.29 $71.71 ENVIRONMENTAL PROGRAMS MANAGER $49.73 $52.22 $54.83 $57.57 $60.45 EXEC ASST TO CITY MANAGER $36.80 $38.64 $40.57 $42.60 $44.73 EXEC ASST TO THE CITY ATTNY $35.90 $37.69 $39.58 $41.56 $43.64 FINANCE MANAGER $61.03 $64.09 $67.29 $70.66 $74.19 GIS COORDINATOR $39.35 $41.32 $43.38 $45.55 $47.83 GIS PROGRAM MANAGER $48.95 $51.40 $53.97 $56.67 $59.50 HUMAN RESOURCE ANALYST I $41.66 $43.74 $45.93 $48.23 $50.64 HUMAN RESOURCES ANALYST II $45.93 $48.23 $50.64 $53.17 $55.83 HUMAN RESOURCES ASSISTANT $26.47 $27.80 $29.19 $30.65 $32.18 HUMAN RESOURCES MANAGER $61.03 $64.09 $67.29 $70.66 $74.19 HUMAN RESOURCES TECHNICIAN $36.25 $38.06 $39.96 $41.96 $44.06 I.T. ASSISTANT $34.15 $35.85 $37.65 $39.53 $41.51 INFORMATION TECHNOLOGY MANAGER $59.34 $62.30 $65.42 $68.69 $72.12 LEGAL SERVICES MANAGER $37.07 $38.93 $40.87 $42.92 $45.06 MANAGEMENT ANALYST $42.02 $44.12 $46.33 $48.64 $51.07 87 35 NETWORK SPECIALIST $45.02 $47.27 $49.64 $52.12 $54.73 PARK RESTORATION IMPV MGR $57.24 $60.11 $63.11 $66.27 $69.58 PERMIT CENTER MANAGER $53.64 $56.32 $59.13 $62.09 $65.19 PUBLIC AFFAIRS MANAGER $52.18 $54.79 $57.53 $60.41 $63.43 PUBLIC INFORMATION OFFICER $50.48 $53.01 $55.66 $58.44 $61.36 PUBLIC WORKS PROJECT MANAGER $50.32 $52.83 $55.48 $58.25 $61.16 PUBLIC WORKS SUPERVISOR $43.68 $45.86 $48.16 $50.57 $53.09 RECREATION MANAGER $47.06 $49.41 $51.88 $54.48 $57.20 RECREATION SUPERVISOR $42.68 $44.82 $47.06 $49.41 $51.88 SENIOR ACCOUNTANT $45.20 $47.46 $49.83 $52.32 $54.94 SENIOR CIVIL ENGINEER $60.07 $63.07 $66.23 $69.54 $73.01 SENIOR MANAGEMENT ANALYST $45.93 $48.23 $50.64 $53.17 $55.83 SERVICE CENTER SUPERINTENDENT $55.46 $58.24 $61.15 $64.21 $67.42 SUSTAINABILITY MANAGER $49.73 $52.22 $54.83 $57.57 $60.45 WEB SPECIALIST $39.81 $41.80 $43.89 $46.08 $48.39 Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 ACCOUNTANT I $36.56 $38.39 $40.31 $42.33 $44.44 ACCOUNTANT II $40.31 $42.32 $44.44 $46.66 $48.99 ACCOUNTING TECHNICIAN $37.43 $39.30 $41.26 $43.33 $45.49 ADMINISTRATIVE ASSISTANT $32.92 $34.56 $36.29 $38.10 $40.01 ASSISTANT CITY ATTORNEY $75.17 $78.93 $82.88 $87.02 $91.37 ASSISTANT CITY MGR - COMM DEV $96.88 $101.73 $106.81 $112.15 $117.76 ASSISTANT DIRECTOR COMM DEV $67.75 $71.14 $74.69 $78.43 $82.35 ASSISTANT TO THE CITY MANAGER $54.21 $56.92 $59.76 $62.75 $65.89 ASST DIR PUBLIC WORKS ENG $72.11 $75.71 $79.50 $83.47 $87.65 BUILDING OFFICIAL $59.18 $62.13 $65.24 $68.50 $71.93 BUSINESS SYSTEMS ANALYST $46.49 $48.81 $51.25 $53.81 $56.50 CAPITAL IMPV PROGRAM MGR $59.10 $62.06 $65.16 $68.42 $71.84 CITY ARCHITECT $48.19 $50.60 $53.13 $55.79 $58.58 CITY CLERK $55.34 $58.11 $61.01 $64.06 $67.27 CITY ENGINEER $68.67 $72.11 $75.71 $79.50 $83.47 CITY PLANNER $61.57 $64.64 $67.88 $71.27 $74.83 COMMUNITY RELATIONS COORDINATOR $37.95 $39.84 $41.84 $43.93 $46.12 DEPARTMENT HEAD $83.16 $87.32 $91.68 $96.27 $101.08 DEPUTY BUILDING OFFICIAL $55.38 $58.15 $61.06 $64.11 $67.31 DEPUTY CITY ATTORNEY $54.09 $56.79 $59.63 $62.62 $65.75 DEPUTY CITY CLERK $39.49 $41.46 $43.54 $45.71 $48.00 DEPUTY CITY MANAGER $66.32 $69.63 $73.12 $76.77 $80.61 88 36 DIRECTOR OF PUBLIC WORKS $88.08 $92.48 $97.10 $101.96 $107.06 ECONOMIC DEVELOPMENT MANAGER $60.91 $63.96 $67.16 $70.51 $74.04 ENVIRONMENTAL PROGRAMS MANAGER $53.40 $56.07 $58.88 $61.82 $64.91 EXEC ASST TO CITY MANAGER $37.99 $39.89 $41.89 $43.98 $46.18 EXEC ASST TO THE CITY ATTNY $37.07 $38.92 $40.87 $42.91 $45.05 FINANCE MANAGER $63.02 $66.17 $69.48 $72.95 $76.60 GIS COORDINATOR $40.63 $42.66 $44.79 $47.03 $49.38 GIS PROGRAM MANAGER $50.54 $53.07 $55.72 $58.51 $61.44 HUMAN RESOURCE ANALYST I $43.02 $45.17 $47.42 $49.80 $52.29 HUMAN RESOURCES ANALYST II $47.42 $49.80 $52.29 $54.90 $57.65 HUMAN RESOURCES ASSISTANT $27.33 $28.70 $30.14 $31.64 $33.23 HUMAN RESOURCES MANAGER $63.02 $66.17 $69.48 $72.95 $76.60 HUMAN RESOURCES TECHNICIAN $37.43 $39.30 $41.26 $43.33 $45.49 I.T. ASSISTANT $35.26 $37.02 $38.87 $40.81 $42.86 INFORMATION TECHNOLOGY MANAGER $61.33 $64.39 $67.61 $70.99 $74.54 LEGAL SERVICES MANAGER $38.28 $40.19 $42.20 $44.31 $46.53 MANAGEMENT ANALYST $43.38 $45.55 $47.83 $50.22 $52.73 NETWORK SPECIALIST $46.49 $48.81 $51.25 $53.81 $56.50 PARK RESTORATION IMPV MGR $59.10 $62.06 $65.16 $68.42 $71.84 PERMIT CENTER MANAGER $55.38 $58.15 $61.06 $64.11 $67.31 PUBLIC AFFAIRS MANAGER $53.88 $56.57 $59.40 $62.37 $65.49 PUBLIC INFORMATION OFFICER $54.21 $56.92 $59.76 $62.75 $65.89 PUBLIC WORKS PROJECT MANAGER $51.95 $54.55 $57.28 $60.14 $63.15 PUBLIC WORKS SUPERVISOR $45.10 $47.36 $49.72 $52.21 $54.82 RECREATION MANAGER $48.59 $51.02 $53.57 $56.25 $59.06 RECREATION SUPERVISOR $44.07 $46.27 $48.59 $51.02 $53.57 SENIOR ACCOUNTANT $46.67 $49.00 $51.45 $54.02 $56.72 SENIOR CIVIL ENGINEER $62.02 $65.12 $68.38 $71.80 $75.39 SENIOR MANAGEMENT ANALYST $47.42 $49.80 $52.29 $54.90 $57.64 SERVICE CENTER SUPERINTENDENT $57.27 $60.13 $63.14 $66.29 $69.61 SUSTAINABILITY MANAGER $53.40 $56.07 $58.88 $61.82 $64.91 WEB SPECIALIST $41.10 $43.16 $45.32 $47.58 $49.96 Salary Effective First Full Pay Period in July 2018 Classification Step 1 Step 2 Step 3 Step 4 Step 5 ACCOUNTANT I $37.48 $39.35 $41.32 $43.39 $45.56 ACCOUNTANT II $41.32 $43.38 $45.55 $47.83 $50.22 ACCOUNTING TECHNICIAN $38.36 $40.28 $42.30 $44.41 $46.63 ADMINISTRATIVE ASSISTANT $33.74 $35.43 $37.20 $39.06 $41.01 ASSISTANT CITY ATTORNEY $77.05 $80.91 $84.95 $89.20 $93.66 89 37 ASSISTANT CITY MGR - COMM DEV $99.90 $104.90 $110.14 $115.65 $121.43 ASSISTANT DIRECTOR COMM DEV $71.87 $75.47 $79.24 $83.20 $87.36 ASSISTANT TO THE CITY MANAGER $57.34 $60.21 $63.22 $66.38 $69.70 ASST DIR PUBLIC WORKS ENG $74.35 $78.07 $81.98 $86.07 $90.38 BUILDING OFFICIAL $60.66 $63.69 $66.87 $70.22 $73.73 BUSINESS SYSTEMS ANALYST $47.65 $50.03 $52.53 $55.16 $57.92 CAPITAL IMPV PROGRAM MGR $60.58 $63.61 $66.79 $70.13 $73.64 CITY ARCHITECT $49.40 $51.87 $54.46 $57.18 $60.04 CITY CLERK $56.72 $59.56 $62.54 $65.67 $68.95 CITY ENGINEER $70.81 $74.35 $78.07 $81.98 $86.07 CITY PLANNER $63.10 $66.26 $69.57 $73.05 $76.70 COMMUNITY RELATIONS COORDINATOR $38.90 $40.84 $42.88 $45.03 $47.28 DEPUTY BUILDING OFFICIAL $56.76 $59.60 $62.58 $65.71 $69.00 DEPUTY CITY ATTORNEY $55.44 $58.21 $61.13 $64.18 $67.39 DEPUTY CITY CLERK $40.48 $42.50 $44.63 $46.86 $49.20 DEPUTY CITY MANAGER $67.98 $71.38 $74.94 $78.69 $82.63 DEPARTMENT HEAD $88.22 $92.63 $97.26 $102.13 $107.23 DIRECTOR OF PUBLIC WORKS $90.82 $95.36 $100.13 $105.13 $110.39 ECONOMIC DEVELOPMENT MANAGER $62.44 $65.56 $68.84 $72.28 $75.89 ENVIRONMENTAL PROGRAMS MANAGER $56.46 $59.28 $62.24 $65.36 $68.62 EXEC ASST TO CITY MANAGER $38.94 $40.89 $42.93 $45.08 $47.34 EXEC ASST TO THE CITY ATTNY $37.99 $39.89 $41.89 $43.98 $46.18 FINANCE MANAGER $64.59 $67.82 $71.21 $74.78 $78.51 GIS COORDINATOR $41.64 $43.73 $45.91 $48.21 $50.62 GIS PROGRAM MANAGER $51.81 $54.40 $57.12 $59.97 $62.97 HUMAN RESOURCE ANALYST I $44.09 $46.30 $48.61 $51.04 $53.59 HUMAN RESOURCES ANALYST II $48.61 $51.04 $53.59 $56.27 $59.09 HUMAN RESOURCES ASSISTANT $28.02 $29.42 $30.89 $32.43 $34.06 HUMAN RESOURCES MANAGER $64.59 $67.82 $71.21 $74.78 $78.51 HUMAN RESOURCES TECHNICIAN $38.36 $40.28 $42.30 $44.41 $46.63 I.T. ASSISTANT $36.14 $37.95 $39.84 $41.83 $43.93 INFORMATION TECHNOLOGY MANAGER $62.86 $66.00 $69.30 $72.77 $76.41 LEGAL SERVICES MANAGER $39.23 $41.20 $43.26 $45.42 $47.69 MANAGEMENT ANALYST $44.47 $46.69 $49.03 $51.48 $54.05 NETWORK SPECIALIST $47.65 $50.03 $52.53 $55.16 $57.92 PARK RESTORATION IMPV MGR $60.58 $63.61 $66.79 $70.13 $73.64 PERMIT CENTER MANAGER $56.76 $59.60 $62.58 $65.71 $69.00 PUBLIC AFFAIRS MANAGER $55.22 $57.98 $60.88 $63.93 $67.12 PUBLIC INFORMATION OFFICER $57.34 $60.21 $63.22 $66.38 $69.70 PUBLIC WORKS PROJECT MANAGER $53.25 $55.92 $58.71 $61.65 $64.73 PUBLIC WORKS SUPERVISOR $46.23 $48.54 $50.97 $53.51 $56.19 Formatted Table 90 38 RECREATION MANAGER $49.80 $52.29 $54.91 $57.65 $60.54 RECREATION SUPERVISOR $45.17 $47.43 $49.80 $52.29 $54.91 SENIOR ACCOUNTANT $47.83 $50.23 $52.74 $55.37 $58.14 SENIOR CIVIL ENGINEER $63.57 $66.75 $70.09 $73.59 $77.27 SENIOR MANAGEMENT ANALYST $48.61 $51.04 $53.59 $56.27 $59.09 SERVICE CENTER SUPERINTENDENT $58.70 $61.63 $64.72 $67.95 $71.35 SUSTAINABILITY MANAGER $56.46 $59.28 $62.24 $65.36 $68.62 WEB SPECIALIST $42.13 $44.24 $46.45 $48.77 $51.21 91 Exhibit A 1 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated either as management or confidential positions shall be eligible for participation under the Unrepresented Employees Compensation Program as hereby adopted by action of the City Council and as same may be amended or as otherwise modified from time to time. It is the stated purpose of this Compensation Program to give recognition to and to differentiate those eligible employees from represented employees who achieve economic gain and other conditions of employment through negotiation. It is the intent that through this policy and those which are adopted or as may be modified or rescinded from time to time such recognition may be given. Eligibility for inclusion with this Compensation program is limited to persons holding positions as management or confidential employees as defined under section 2.52.290 of the Cupertino Municipal Code. These are as designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as unrepresented. MANAGEMENT AND CONFIDENTIAL CLASSIFICATIONS: Classification Title Accountant I Accountant II Accounting Technician Administrative Assistant Assistant City Attorney Assistant City Manager Assistant Director of Community Development Assistant Director of Public Works Assistant to the City Manager Building Official Business Systems Analyst/Program Manager Capital Improvement Program Manager Chief Technology Officer/Director of Information Services (Department Head) City Architect City Clerk City Engineer Community Relations Coordinator 92 Exhibit A 2 Deputy Building Official Deputy City Attorney Deputy City Clerk Deputy City Manager Director of Administrative Services (Department Head) Director of Community Development (Department Head) Director of Recreation and Community Services (Department Head) Director of Public Works Economic Development Manager Environmental Programs Manager Executive Assistant to the City Attorney Executive Assistant to the City Manager Finance Manager GIS Coordinator GIS Program Manager Human Resources Analyst I Human Resources Analyst II Human Resources Assistant Human Resources ManagerHuman Resources Technician Information Technology Assistant Information Technology Manager Legal Services Manager Management Analyst Network Specialist Park Restoration and Improvement Manager Permit Center Manager Planning Manager Public Information Officer Public Affairs Manager Public Works Projects Manager Public Works Supervisor Recreation Manager Recreation Supervisor Senior Accountant Senior Civil Engineer Senior Management Analyst Service Center Superintendent Sustainability Manager Web Specialist In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council, April 1, 1974 93 Exhibit A 3 Revised 10/74, 3/78, 6/81, 6/82, 7/85, 7/87, 1/89, 7/90, 4/91, 5/91, 7/92, 6/95, 6/96, 7/99, 6/02, 7/04, 6/05, 04/07, 7/10, 10/12, 12/12, 7/13,11/13,12/13,3/14, 7/14, 11/15, 6/16, 10/16 94 Exhibit A 4 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City’s ability to pay consistent with its fiscal policies. a. Effective the first full pay period after adoption by the City Council, a 3.5% salary increase will be added to the salary range of each classification in this unit. b. Effective the first full pay period in July 2017, a 3.25% salary increase will be added to the salary range of each classification in this unit. c. Effective the first full pay period in July 2018, a 2.5% salary increase will be added to the salary range of each classification in this unit. See Attachment A for a list of paygrades. In addition, equity adjustments as identified in the City’s 2016 total compensation survey shall occur per Attachment A. Adopted by Action of the City Council April 1, 1974 Revised 8/78, 7/79, 6/80, 7/92, 6/95, 10/12, 7/13, 10/16 95 Exhibit A 5 City of Cupertino UNREPRESENTED EMPLOYEES’COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY A. Management Personnel It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. B. Non-Management Personnel When authorized by their supervisor, a non-management person may attend a conference, meeting or training session subject to the stated terms and conditions included herein for each with payment toward or reimbursement of certain expenses incurred as defined below for each. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40- mile distance from Cupertino when traveling to Alameda County. C. Meetings A “meeting” shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. 96 Exhibit A 6 D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City’s operations or to enhance the attendee’s capabilities in the discharge of assigned duties and responsibilities. III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee’s home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this 97 Exhibit A 7 instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non- conference lodging policy described in the next paragraph should be followed to find another comparable hotel. Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. 98 Exhibit A 8 No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City-related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; of those besides economic development staff; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE AUTHORIZATION A. Budgetary Limitations Notwithstanding any attendance authorization contained herein, reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. B. Conference Attendance Attendance at conferences or seminars by employees must be approved by their supervisor. C. Meetings Any employee, management or non-management, may attend a meeting when authorized by their supervisor. 99 Exhibit A 9 D. Training Sessions Any employee, management or non-management, may attend a training session when authorized by their supervisor. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City’s behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee’s return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Revised 7/83, 7/85, 7/87, 7/88, 7/91, 7/92, 12/07,7/10 100 Exhibit A 10 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees in the following classifications shall be paid on a monthly basis the following automobile allowance: Classification Allowance Director of Administrative Services 300.00 Director of Community Development 300.00 Assistant City Manager 300.00 Director of Recreation and Community Services 300.00 Director of Public Works 300.00 Chief Technology Officer/ 300.00 Director of Information Services City Clerk 250.00 Senior Civil Engineer 250.00 City Engineer 250.00 Public Affairs Manager 200.00 Deputy City Manager 200.00 Recreation Supervisor 200.00 Recreation Manager 200.00 Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council April 1, 1974 Revised 7/74, 5/79, 6/80, 7/81, 8/84, 7/87, 1/89, 7/90, 7/92, 6/96, 8/99, 6/00, 9/01, 1/02, 6/02, 10/07, 7/10, 7/11, 10/12, 12/12, 7/13, 11/15, 10/16 101 Exhibit A 11 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Each claim for City sponsored membership shall be submitted by or through the Department Head with their concurrence to the City Manager for approval. Subscriptions to or purchase of professional and technical publications may be provided at City expense when such have been authorized by the Department Head providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council April 1, 1974 Revised 7/92 102 Exhibit A 12 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED EXEMPT POSITIONS: Management and non-represented professional employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor’s approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. NON-EXEMPT POSITIONS: Confidential employees are eligible for overtime or compensation time, at their discretion, for the time worked in excess of 40 hours per week. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, where forty hours have been worked in the same seven day period. COMPENSATORY TIME OFF At the employee’s discretion, compensatory time (CTO) may be granted for overtime worked at the rate of time and one-half for each hour worked in lieu of compensation in cash. Employees, who have previously earned CTO, shall be allowed to schedule CTO at the employee’s discretion provided (1) that prior supervisory approval has been obtained and (2) the request is made in writing. CTO may be accrued for up to 80 hours per calendar year. Any CTO earned exceeding 80 hours will be paid at the rate of time and one-half. An employee may carry over the unused balance into the next calendar year. Any unused carryover balance will be automatically paid out at the end of the calendar year. An employee may exercise his/her option twice each calendar year to convert any/or all accumulated compensatory time to cash. Adopted by Action of the City Council April 1, 1974 Revised 6/80, 7/91, 7/92, 6/96, 7/97, 4/07, 7/13, 10/16 103 Exhibit A 13 City of Cupertino UNREPRESENTED EMPLOYEES’COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in Management and Confidential positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee’s gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 *Dental Coverage: Effective the first month after Council adoption of MOU, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of the City Council September 16, 1974 Revised 104 Exhibit A 14 7/75, 7/76, 7/77, 8/78, 7/79, 6/80, 6/81, 7/81, 6/82, 7/83, 7/84, 7/88, 7/89, 7/90, 7/91, 7/92, 6/95, 7/97, 7/99, 6/00, 6/02, 7/04, 6/05, 4/07,12/12, 7/13, 10/16 105 Exhibit A 15 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year’s Day 2. Martin Luther King Day 3. Presidents’ Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran’s Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year’s Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 7, 1975 Revised 6/80, 6/89, 7/92, 7/99, 7/13 106 Exhibit A 16 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 9 LIFE, LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for Management and Confidential employees that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee’s annual salary to a maximum of $250,000.00. Employees occupying unrepresented positions may enroll in the disability income program and the life insurance program offered if eligible under the contract provisions of the policy and the personnel rules of the City. The full cost of premiums for these programs shall be paid by the City for such employees. Adopted by Action of the City Council September 16, 1976 Revised 7/76, 6/80, 6/81, 6/82, 6/92, 10/16 107 Exhibit A 17 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for management and confidential employees for services performed for the City. The City participates in the California Public Employees’ Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent management and confidential employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 7, 1975 Revised 6/80, 7/87, 7/92, 7/99 108 Exhibit A 18 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES’ RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective the first full pay period after adoption of this agreement by the City Council, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation. Effective the first full pay period after and adoption of this agreement by the City Council, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council June, 1981 Revised 6/87, 6/89, 7/90, 7/91, 7/92, 6/03, 7/04, 4/07, 7/10, 10/12, 12/12, 7/13, 10/16 109 Exhibit A 19 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in Management and Confidential positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers. *Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 1983 Revised 7/87, 7/88, 7/89, 7/90, 7/91, 7/92, 6/95, 7/99, 4/07, 10/12, 10/16 110 Exhibit A 20 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The department heads shall receive eighty (80) hours of administrative leave with pay per year. Unrepresented employees exempt from the provisions of the Fair Labor Standards Act shall receive forty (40) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July, 1988 Revised 7/92, 7/97, 7/99, 7/10, 12/12, 10/16 111 Exhibit A 21 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of Management and Confidential employees and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council June 17, 1996 112 Exhibit A 22 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 15 VACATION ACCUMULATION The department heads shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Benefited full-time employees accrue vacation in accordance with the following schedule. Benefited employees who work less than a full-time work schedule accrue vacation in accordance with the following schedule on a pro-rated basis. Service Time Annual Accruals Maximum Accrual 0 - 3 Years 80 Hours 160 Hours 4 - 9 Years 120 Hours 240 Hours 10 – 14 Years 160 Hours 272 Hours 15 – 19 Years 176 Hours 320 Hours 20 + Years 192 Hours 352 Hours An employee may accrue no more vacation credit than what is listed above. VACATION CREDITS The hiring manager, with the approval of the department head and the City Manager, may offer a vacation bank of up to 120 hours of vacation to a prospective candidate in the Unrepresented group. These hours do not vest for payoff purposes if the employee leaves service. Adopted by Action of the City Council July 7, 1997 Revised 6/99, 7/10, 12/12, 7/13, 10/16 113 Exhibit A 23 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the department heads pursuant to Resolution No. 15-092. Adopted by Action of the City Council July 7, 1997 Revised 7/99, 7/10, 8/12, 10/15 114 Exhibit A 24 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE – EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1997 Revised 7/99, 6/02, 6/03, 7/10, 10/12 115 Exhibit A 25 City of Cupertino UNREPRESENTED EMPLOYEES’ COMPENSATION PROGRAM Policy No. 18 WORK OUT OF CLASSIFICATION/WORK IN DUAL CLASSIFICATION Work Out of Classification – Temporary assignment, approved in advance by the department head, to a classification in a higher pay grade shall be compensated at the Step 1 rate of the higher classification or at a rate five (5) percent greater than that of the regular position, whichever is greater, for the number of hours assigned. In order to qualify for out-of- classification pay, an employee shall work a minimum of eight (8) hours per day in the temporary assignment. Out of classification compensation shall not be used as a substitute for the permanent classification or reclassification of positions. An employee may be assigned to work in a higher class when there is a vacant position, either temporary (incumbent on leave of absence) or permanent (vacant position which has not been filled), or when an employee assumes additional work that would otherwise be performed by consultants which results in a cost savings to the City. All requests for out of classification compensation must be approved by the Human Resources Director. Persons approved to work out of class will continue to receive salary step adjustments in their regular classification based upon satisfactory performance. The out of class salary step will be adjusted accordingly in accordance to the policy set forth herein when the employee’s salary in the permanent classification is adjusted. Work in Dual Classifications – The City Manager may, in his or her sole discretion, grant a pay differential up to five percent (5%) above the higher base salary to an employee assigned by the City Manager to perform all of the duties of another position in addition to the employee’s regular duties, provided that a differential of dual assignments under this provision shall only be paid where the additional assignment is to a position equivalent to the level of the employee’s regular position in a different department or division than the employee’s regular classification, the duration of the additional assignment is for a period of one or more months, and the published base salary for the equivalent level position is the same or lower than the published salary for the employee’s current classification such that the employee does not quality for working out of class pay. Adopted by Action of the City Council October 2016 Revised 116 Exhibit A 26 City of Cupertino Listing of Unrepresented Classifications by Salary Rate or Pay Grades Effective July 1, 2013 (Res. No. 13-061) Amended 11/19/13 (Res. No. 13-099) Amended 12/17/13 (Res. No. 13-108) Amended 3/18/14 (Res. No. 14-130) Amended 11/3/14 (Res. No. 14-209) Amended 11/3/2015 (Res. No. 15-099 ) Amended 6/21/16 (Res. No. 16- ) Amended 10/4/16 (Res. No. ) Amended 10/18/16 (Res. No. ) 117 Exhibit A 27 ATTACHMENT A CLASSES AND POSITIONS BY PAY GRADE EFFECTIVE OCTOBER 1, 2016 – JUNE 30, 2019 Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 ACCOUNTANT I $35.41 $37.18 $39.04 $41.00 $43.05 ACCOUNTANT II $39.04 $40.99 $43.04 $45.19 $47.45 ACCOUNTING TECHNICIAN $36.25 $38.06 $39.96 $41.96 $44.06 ADMINISTRATIVE ASSISTANT $31.88 $33.47 $35.15 $36.91 $38.75 ASSISTANT CITY ATTORNEY $71.89 $75.49 $79.26 $83.23 $87.39 ASSISTANT CITY MGR - COMM DEV $90.22 $94.74 $99.47 $104.45 $109.67 ASSISTANT DIRECTOR COMM DEV $63.09 $66.25 $69.56 $73.04 $76.69 ASSISTANT TO THE CITY MANAGER $50.48 $53.01 $55.66 $58.44 $61.36 ASST DIR PUBLIC WORKS ENG $67.15 $70.51 $74.04 $77.74 $81.62 BUILDING OFFICIAL $57.31 $60.18 $63.19 $66.35 $69.66 BUSINESS SYSTEMS ANALYST $45.02 $47.27 $49.64 $52.12 $54.73 CAPITAL IMPV PROGRAM MGR $57.24 $60.11 $63.11 $66.27 $69.58 CITY ARCHITECT $46.68 $49.01 $51.46 $54.03 $56.74 CITY CLERK $53.60 $56.28 $59.09 $62.05 $65.15 CITY ENGINEER $63.95 $67.15 $70.51 $74.04 $77.74 CITY PLANNER $59.63 $62.61 $65.74 $69.03 $72.48 COMMUNITY RELATIONS COORDINATOR $36.75 $38.59 $40.52 $42.55 $44.67 DEPARTMENT HEAD $77.44 $81.32 $85.38 $89.65 $94.13 DEPUTY BUILDING OFFICIAL $53.64 $56.32 $59.13 $62.09 $65.19 DEPUTY CITY ATTORNEY $51.73 $54.32 $57.03 $59.88 $62.88 DEPUTY CITY CLERK $38.25 $40.16 $42.17 $44.28 $46.49 DEPUTY CITY MANAGER $61.96 $65.06 $68.31 $71.72 $75.31 DIRECTOR OF PUBLIC WORKS $82.02 $86.12 $90.43 $94.95 $99.70 ECONOMIC DEVELOPMENT MANAGER $59.00 $61.95 $65.04 $68.29 $71.71 ENVIRONMENTAL PROGRAMS MANAGER $49.73 $52.22 $54.83 $57.57 $60.45 EXEC ASST TO CITY MANAGER $36.80 $38.64 $40.57 $42.60 $44.73 EXEC ASST TO THE CITY ATTNY $35.90 $37.69 $39.58 $41.56 $43.64 FINANCE MANAGER $61.03 $64.09 $67.29 $70.66 $74.19 GIS COORDINATOR $39.35 $41.32 $43.38 $45.55 $47.83 GIS PROGRAM MANAGER $48.95 $51.40 $53.97 $56.67 $59.50 118 Exhibit A 28 HUMAN RESOURCE ANALYST I $41.66 $43.74 $45.93 $48.23 $50.64 HUMAN RESOURCES ANALYST II $45.93 $48.23 $50.64 $53.17 $55.83 HUMAN RESOURCES ASSISTANT $26.47 $27.80 $29.19 $30.65 $32.18 HUMAN RESOURCES MANAGER $61.03 $64.09 $67.29 $70.66 $74.19 HUMAN RESOURCES TECHNICIAN $36.25 $38.06 $39.96 $41.96 $44.06 I.T. ASSISTANT $34.15 $35.85 $37.65 $39.53 $41.51 INFORMATION TECHNOLOGY MANAGER $59.34 $62.30 $65.42 $68.69 $72.12 LEGAL SERVICES MANAGER $37.07 $38.93 $40.87 $42.92 $45.06 MANAGEMENT ANALYST $42.02 $44.12 $46.33 $48.64 $51.07 NETWORK SPECIALIST $45.02 $47.27 $49.64 $52.12 $54.73 PARK RESTORATION IMPV MGR $57.24 $60.11 $63.11 $66.27 $69.58 PERMIT CENTER MANAGER $53.64 $56.32 $59.13 $62.09 $65.19 PUBLIC AFFAIRS MANAGER $52.18 $54.79 $57.53 $60.41 $63.43 PUBLIC INFORMATION OFFICER $50.48 $53.01 $55.66 $58.44 $61.36 PUBLIC WORKS PROJECT MANAGER $50.32 $52.83 $55.48 $58.25 $61.16 PUBLIC WORKS SUPERVISOR $43.68 $45.86 $48.16 $50.57 $53.09 RECREATION MANAGER $47.06 $49.41 $51.88 $54.48 $57.20 RECREATION SUPERVISOR $42.68 $44.82 $47.06 $49.41 $51.88 SENIOR ACCOUNTANT $45.20 $47.46 $49.83 $52.32 $54.94 SENIOR CIVIL ENGINEER $60.07 $63.07 $66.23 $69.54 $73.01 SENIOR MANAGEMENT ANALYST $45.93 $48.23 $50.64 $53.17 $55.83 SERVICE CENTER SUPERINTENDENT $55.46 $58.24 $61.15 $64.21 $67.42 SUSTAINABILITY MANAGER $49.73 $52.22 $54.83 $57.57 $60.45 WEB SPECIALIST $39.81 $41.80 $43.89 $46.08 $48.39 Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 ACCOUNTANT I $36.56 $38.39 $40.31 $42.33 $44.44 ACCOUNTANT II $40.31 $42.32 $44.44 $46.66 $48.99 ACCOUNTING TECHNICIAN $37.43 $39.30 $41.26 $43.33 $45.49 ADMINISTRATIVE ASSISTANT $32.92 $34.56 $36.29 $38.10 $40.01 ASSISTANT CITY ATTORNEY $75.17 $78.93 $82.88 $87.02 $91.37 ASSISTANT CITY MGR - COMM DEV $96.88 $101.73 $106.81 $112.15 $117.76 ASSISTANT DIRECTOR COMM DEV $67.75 $71.14 $74.69 $78.43 $82.35 ASSISTANT TO THE CITY MANAGER $54.21 $56.92 $59.76 $62.75 $65.89 ASST DIR PUBLIC WORKS ENG $72.11 $75.71 $79.50 $83.47 $87.65 BUILDING OFFICIAL $59.18 $62.13 $65.24 $68.50 $71.93 BUSINESS SYSTEMS ANALYST $46.49 $48.81 $51.25 $53.81 $56.50 CAPITAL IMPV PROGRAM MGR $59.10 $62.06 $65.16 $68.42 $71.84 CITY ARCHITECT $48.19 $50.60 $53.13 $55.79 $58.58 119 Exhibit A 29 CITY CLERK $55.34 $58.11 $61.01 $64.06 $67.27 CITY ENGINEER $68.67 $72.11 $75.71 $79.50 $83.47 CITY PLANNER $61.57 $64.64 $67.88 $71.27 $74.83 COMMUNITY RELATIONS COORDINATOR $37.95 $39.84 $41.84 $43.93 $46.12 DEPARTMENT HEAD $83.16 $87.32 $91.68 $96.27 $101.08 DEPUTY BUILDING OFFICIAL $55.38 $58.15 $61.06 $64.11 $67.31 DEPUTY CITY ATTORNEY $54.09 $56.79 $59.63 $62.62 $65.75 DEPUTY CITY CLERK $39.49 $41.46 $43.54 $45.71 $48.00 DEPUTY CITY MANAGER $66.32 $69.63 $73.12 $76.77 $80.61 DIRECTOR OF PUBLIC WORKS $88.08 $92.48 $97.10 $101.96 $107.06 ECONOMIC DEVELOPMENT MANAGER $60.91 $63.96 $67.16 $70.51 $74.04 ENVIRONMENTAL PROGRAMS MANAGER $53.40 $56.07 $58.88 $61.82 $64.91 EXEC ASST TO CITY MANAGER $37.99 $39.89 $41.89 $43.98 $46.18 EXEC ASST TO THE CITY ATTNY $37.07 $38.92 $40.87 $42.91 $45.05 FINANCE MANAGER $63.02 $66.17 $69.48 $72.95 $76.60 GIS COORDINATOR $40.63 $42.66 $44.79 $47.03 $49.38 GIS PROGRAM MANAGER $50.54 $53.07 $55.72 $58.51 $61.44 HUMAN RESOURCE ANALYST I $43.02 $45.17 $47.42 $49.80 $52.29 HUMAN RESOURCES ANALYST II $47.42 $49.80 $52.29 $54.90 $57.65 HUMAN RESOURCES ASSISTANT $27.33 $28.70 $30.14 $31.64 $33.23 HUMAN RESOURCES MANAGER $63.02 $66.17 $69.48 $72.95 $76.60 HUMAN RESOURCES TECHNICIAN $37.43 $39.30 $41.26 $43.33 $45.49 I.T. ASSISTANT $35.26 $37.02 $38.87 $40.81 $42.86 INFORMATION TECHNOLOGY MANAGER $61.33 $64.39 $67.61 $70.99 $74.54 LEGAL SERVICES MANAGER $38.28 $40.19 $42.20 $44.31 $46.53 MANAGEMENT ANALYST $43.38 $45.55 $47.83 $50.22 $52.73 NETWORK SPECIALIST $46.49 $48.81 $51.25 $53.81 $56.50 PARK RESTORATION IMPV MGR $59.10 $62.06 $65.16 $68.42 $71.84 PERMIT CENTER MANAGER $55.38 $58.15 $61.06 $64.11 $67.31 PUBLIC AFFAIRS MANAGER $53.88 $56.57 $59.40 $62.37 $65.49 PUBLIC INFORMATION OFFICER $54.21 $56.92 $59.76 $62.75 $65.89 PUBLIC WORKS PROJECT MANAGER $51.95 $54.55 $57.28 $60.14 $63.15 PUBLIC WORKS SUPERVISOR $45.10 $47.36 $49.72 $52.21 $54.82 RECREATION MANAGER $48.59 $51.02 $53.57 $56.25 $59.06 RECREATION SUPERVISOR $44.07 $46.27 $48.59 $51.02 $53.57 SENIOR ACCOUNTANT $46.67 $49.00 $51.45 $54.02 $56.72 SENIOR CIVIL ENGINEER $62.02 $65.12 $68.38 $71.80 $75.39 SENIOR MANAGEMENT ANALYST $47.42 $49.80 $52.29 $54.90 $57.64 SERVICE CENTER SUPERINTENDENT $57.27 $60.13 $63.14 $66.29 $69.61 SUSTAINABILITY MANAGER $53.40 $56.07 $58.88 $61.82 $64.91 WEB SPECIALIST $41.10 $43.16 $45.32 $47.58 $49.96 120 Exhibit A 30 Salary Effective First Full Pay Period in July 2018 Classification Step 1 Step 2 Step 3 Step 4 Step 5 ACCOUNTANT I $37.48 $39.35 $41.32 $43.39 $45.56 ACCOUNTANT II $41.32 $43.38 $45.55 $47.83 $50.22 ACCOUNTING TECHNICIAN $38.36 $40.28 $42.30 $44.41 $46.63 ADMINISTRATIVE ASSISTANT $33.74 $35.43 $37.20 $39.06 $41.01 ASSISTANT CITY ATTORNEY $77.05 $80.91 $84.95 $89.20 $93.66 ASSISTANT CITY MGR - COMM DEV $99.90 $104.90 $110.14 $115.65 $121.43 ASSISTANT DIRECTOR COMM DEV $71.87 $75.47 $79.24 $83.20 $87.36 ASSISTANT TO THE CITY MANAGER $57.34 $60.21 $63.22 $66.38 $69.70 ASST DIR PUBLIC WORKS ENG $74.35 $78.07 $81.98 $86.07 $90.38 BUILDING OFFICIAL $60.66 $63.69 $66.87 $70.22 $73.73 BUSINESS SYSTEMS ANALYST $47.65 $50.03 $52.53 $55.16 $57.92 CAPITAL IMPV PROGRAM MGR $60.58 $63.61 $66.79 $70.13 $73.64 CITY ARCHITECT $49.40 $51.87 $54.46 $57.18 $60.04 CITY CLERK $56.72 $59.56 $62.54 $65.67 $68.95 CITY ENGINEER $70.81 $74.35 $78.07 $81.98 $86.07 CITY PLANNER $63.10 $66.26 $69.57 $73.05 $76.70 COMMUNITY RELATIONS COORDINATOR $38.90 $40.84 $42.88 $45.03 $47.28 DEPUTY BUILDING OFFICIAL $56.76 $59.60 $62.58 $65.71 $69.00 DEPUTY CITY ATTORNEY $55.44 $58.21 $61.13 $64.18 $67.39 DEPUTY CITY CLERK $40.48 $42.50 $44.63 $46.86 $49.20 DEPUTY CITY MANAGER $67.98 $71.38 $74.94 $78.69 $82.63 DEPARTMENT HEAD $88.22 $92.63 $97.26 $102.13 $107.23 DIRECTOR OF PUBLIC WORKS $90.82 $95.36 $100.13 $105.13 $110.39 ECONOMIC DEVELOPMENT MANAGER $62.44 $65.56 $68.84 $72.28 $75.89 ENVIRONMENTAL PROGRAMS MANAGER $56.46 $59.28 $62.24 $65.36 $68.62 EXEC ASST TO CITY MANAGER $38.94 $40.89 $42.93 $45.08 $47.34 EXEC ASST TO THE CITY ATTNY $37.99 $39.89 $41.89 $43.98 $46.18 FINANCE MANAGER $64.59 $67.82 $71.21 $74.78 $78.51 GIS COORDINATOR $41.64 $43.73 $45.91 $48.21 $50.62 GIS PROGRAM MANAGER $51.81 $54.40 $57.12 $59.97 $62.97 HUMAN RESOURCE ANALYST I $44.09 $46.30 $48.61 $51.04 $53.59 HUMAN RESOURCES ANALYST II $48.61 $51.04 $53.59 $56.27 $59.09 HUMAN RESOURCES ASSISTANT $28.02 $29.42 $30.89 $32.43 $34.06 HUMAN RESOURCES MANAGER $64.59 $67.82 $71.21 $74.78 $78.51 HUMAN RESOURCES TECHNICIAN $38.36 $40.28 $42.30 $44.41 $46.63 I.T. ASSISTANT $36.14 $37.95 $39.84 $41.83 $43.93 INFORMATION TECHNOLOGY MANAGER $62.86 $66.00 $69.30 $72.77 $76.41 121 Exhibit A 31 LEGAL SERVICES MANAGER $39.23 $41.20 $43.26 $45.42 $47.69 MANAGEMENT ANALYST $44.47 $46.69 $49.03 $51.48 $54.05 NETWORK SPECIALIST $47.65 $50.03 $52.53 $55.16 $57.92 PARK RESTORATION IMPV MGR $60.58 $63.61 $66.79 $70.13 $73.64 PERMIT CENTER MANAGER $56.76 $59.60 $62.58 $65.71 $69.00 PUBLIC AFFAIRS MANAGER $55.22 $57.98 $60.88 $63.93 $67.12 PUBLIC INFORMATION OFFICER $57.34 $60.21 $63.22 $66.38 $69.70 PUBLIC WORKS PROJECT MANAGER $53.25 $55.92 $58.71 $61.65 $64.73 PUBLIC WORKS SUPERVISOR $46.23 $48.54 $50.97 $53.51 $56.19 RECREATION MANAGER $49.80 $52.29 $54.91 $57.65 $60.54 RECREATION SUPERVISOR $45.17 $47.43 $49.80 $52.29 $54.91 SENIOR ACCOUNTANT $47.83 $50.23 $52.74 $55.37 $58.14 SENIOR CIVIL ENGINEER $63.57 $66.75 $70.09 $73.59 $77.27 SENIOR MANAGEMENT ANALYST $48.61 $51.04 $53.59 $56.27 $59.09 SERVICE CENTER SUPERINTENDENT $58.70 $61.63 $64.72 $67.95 $71.35 SUSTAINABILITY MANAGER $56.46 $59.28 $62.24 $65.36 $68.62 WEB SPECIALIST $42.13 $44.24 $46.45 $48.77 $51.21 122 RESOLUTION NO. 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING THE ELECTED OFFICIALS COMPENSATION PROGRAM WHEREAS, the City Council desires to amend the Elected Officials Compensation Program; NOW, THEREFORE, BE IT RESOLVED that the Elected Officials Compensation Program be amended, which is incorporated in this resolution by this reference and attached as Exhibit A. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 18th day of October 2016 by the following vote: VOTE MEMBERS OF THE CITY COUNCIL AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 123 1 Exhibit A City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as elected official positions shall be eligible for participation under the Elected Officials Compensation Program as hereby adopted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion with this Compensation program is limited to persons holding positions as elected officials. These are designated by the voters and may be modified as circumstances warrant. The position in the following classification has been designated as elected official. ELECTED OFFICIAL CLASSIFICATIONS: Classification Title City Council Member Adopted by Action of the City Council, July 2013 124 2 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE As rates of pay are set forth under the State of CaliforniaCupertino Municipal Code 2.164.020, and hereby adopted by action of the City Council, so are those rates of pay included herein as a part of this Compensation program. The inclusion herein of said rates and schedules does not affect any effective dates or otherwise reflect on the approval processes required but is shown as an integral part of this Program for completeness of record. Adopted by Action of the City Council July, 2013, October 2016 125 3 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that members of the City Council and the Council’s commissions and committees, shall be reimbursed or receive a direct advance according to the schedules, terms and conditions as set forth herein for the expenses authorized below. This policy is established in accordance with California Government Code Sections 53232.2 and 53232.3. III. AUTHORIZED EXPENSES The City Council and their commission and committee members can receive reimbursements or advances toward actual and necessary expenses incurred by participating in the following activities or events: 1. Communicating with representatives of regional, state and national government on City adopted policy positions; 2. Attending seminars, conferences, and training to improve skill and information levels; 3. Participating in regional, state and national organizations whose activities affect the City’s interests (such as the League of California Cities); 4. Attending International Conferences, budget limited to $2,500 per fiscal year, provided there is a benefit to the City; 5. Attending City events; 1. Attending functions of other local civic or community organizations where there is a clear nexus between the event and the member’s attendance as an official representative of the City. Purely social events, service club dues and meals, and political or charitable contributions or events would be excluded. For purposes of this section, reimbursable fundraisers and events include, but are not limited to, Cupertino Union School District, Fremont Union High School District, Foothill‐ De Anza Community College District, Silicon Valley Leadership Group, Cupertino American Cancer Society (ACS) Relay for Life and Cupertino Chamber of Commerce activities. 126 4 The City will not reimburse or advance payment toward expenses including, but not limited to: 1. The personal portion of any trip; 2. Family expenses, including those of a partner when accompanying Council or commission member on City related business, as well as child or pet related expenses. 3. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 4. Meals and entertainment paid on behalf of third parties outside of the City; 5. Gifts of any kind for any purpose; 6. Alcoholic beverages; 7. Non‐mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 8. Personal losses incurred while on City business. IV. BUDGETARY LIMITATIONS Reimbursement or advancement of expenses shall not exceed budgetary limitations. Changes in appropriations will be done through the budget process. V. REIMBURSEMENT AND ADVANCE SCHEDULE A. Intent This schedule is written with the intent that the City Councilmember, commissioner, or committee member will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive than paying for a taxi or airport shuttle, then officials should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out‐of‐town location, then a car should be rented. Air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. 127 5 B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40 mile distance from Cupertino when traveling to Alameda County. C. Registration The City will pay the registration fee for authorized attendance at a convention, conference, seminar or meeting. D. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee’s home and airport, destination or airport parking charges, taxi and shuttle services at the out‐of‐town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. E. Lodging Hotel or lodging expenses of the City official resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occur outside the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City‐paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non‐conference lodging policy described in the next paragraph should be followed to find another comparable hotel. Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government 128 6 rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. F. Meals 1. No Conference The actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City officials are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on an actual cost basis. The actual cost rate shall follow the rules described in the meals with no conference paragraph. G. Other Expenses Payments toward or reimbursement of other expenses related to authorized activities or events shall be limited to the actual costs consistent with the application of reasonable standards. Receipts must be kept and submitted for all expenses. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City official to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City’s behalf. Such request for an advance should be submitted to the City Manager or Department Head no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the official’s return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS 129 7 All expense reimbursement requests or final accounting of advances received must be approved by the City Manager or Department Head, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, accompanied by a business purpose for all expenditures and a receipt for each item other than mileage. The report will be a public record subject to disclosure under the Public Records Act. VIII. REPORTS TO CITY COUNCIL OR COMMISSIONS At the next regular City Council or commission meeting, each councilmember or commissioner shall briefly report on publicly noticed meetings attended at City expense. If multiple members attended the meeting, a joint report may be made. IX. POLICY VIOLATIONS Violations of this policy including falsifying expense reports may result in any or all of the following: (1) loss of reimbursement privileges, (2) demand for restitution to the City, (3) civil penalties of up to $1,000 per day and three times the value of the resources used, and 4) prosecution for misuse of public resources. Revised 7/83, 7/85, 7/87, 7/88, 7/91, 7/92, 12/07, 7/10 130 8 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 4 MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at the established IRS rates. Submission of reimbursement requests must be approved by the City Manager. Adopted by Action of the City Council July, 2013 131 9 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Each claim for City sponsored membership shall be submitted with their concurrence to the City Manager for approval. Subscriptions to or purchase of professional and technical publications may be provided at City expense when such have been authorized by the City Manager providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July, 2013 132 10 City of Cupertino ELECTED OFFICIALS’COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN ‐ CITY CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which the elected official positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be retained by the City. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Elected Official 733.39 134.85 868.24 Elected Official +1 1246.59 134.85 1381.44 Elected Official +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Elected Official 769.95 134.85 904.80 Elected Official +1 1308.92 134.85 1443.77 Elected Official +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Elected Official 808.45 134.85 943.30 Elected Official +1 1374.37 134.85 1509.22 Elected Official +2 1786.68 134.85 1921.53 133 11 *Dental Coverage: Effective the first month after Council adoption of MOU, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Medical Insurance Coverage Level City Contribution Elected Official 714.00 Elected Official + 1 714.00 Elected Official+2 714.00 Effective as soon as administratively possible, the City will establish a Health Reimbursement Account (HRA) to be used towards health related expenses as determined by the IRS. Effective the first full pay period after adoption of this policy by the City Council, each elected official will receive an $83.00 monthly contribution from the City into a Health Reimbursement Account (HRA) or a notional account until the HRA is established to be used towards health related expenses, consistent with the laws and regulations governing HRAs. The parties acknowledge that the use of these funds shall not occur until the HRA is established. The parties agree to meet and discuss HRA program implementation.Effective the first full pay period in July 2014, each elected official will receive an additional $80.00 per month contribution from the City for a total of $163.00 per month into the Health Reimbursement Account (HRA). During the 13/14 contract year, the City will be reopening negotiations to discuss elimination of the CalPERS 100/90 retirement plan and replacement of said plan. Adopted by Action of the City Council July, 2013, October 2016 134 12 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 9 LIFE INSURANCE It is the policy of the City of Cupertino to provide life insurance benefits to the elected officials to a maximum of $16,000. The elected officials may enroll in the life insurance program offered if eligible under the contract provisions of the policy and the personnel rules of the City. The full cost of premiums for these programs shall be paid by the City for such individuals. Adopted by Action of the City Council July, 2013 135 13 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the elected officials for services performed for the City. The City participates in the California Public Employees’ Retirement System (PERS) and deferred compensation plans have been established. Both the elected official and City may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of the elected officials. . The City shall maintain and administer means by which the elected officials in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Individual contributions to such plans may be made in such amounts as felt proper and necessary to the elected official. The City contributions shall be as determined by the City Council. Adopted by Action of the City Council July, 2013 136 14 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES’ RETIREMENT SYSTEM CONTRIBUTION A. Council Members occupying office on or before December 29, 2012 Only: For Council Members occupying office on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 retirement formula. Effective in the first full pay period in July 2013, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 4.5 % of applicable salary and each employee agrees to pay 3.5% of applicable salary. Effective in the first full pay period in July 2014, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 3.0 % of applicable salary and each employee agrees to pay 5.0% of applicable salary. Effective in the first full pay period in July 2015, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 1.75% of applicable salary and each employee agrees to pay 6.25% of applicable salary. The City agrees to pay the employer’s contribution rate to the Public Employees Retirement System to the extent required by law and the parties acknowledge that by January 1, 2018 the employees are required to pay 50% of the normal cost rate as determined by CalPERS. Effective the first full pay period after adoption of this agreement by the City Council, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. Council Members occupying office on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS 137 15 Regulations Only. For Council Members hired on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation Effective in the first full pay period in July 2013 the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 3.5 % of applicable salary and each employee agrees to pay 3.5% of applicable salary. Effective in the first full pay period in July 2014, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 2.0 % of applicable salary and each employee agrees to pay 5.0% of applicable salary. Effective in the first full pay period in July 2015, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 6.25% of applicable salary. The City agrees to pay the employer’s contribution rate to the Public Employees Retirement System to the extent required by law and the parties acknowledge that by January 1, 2018 the employees are required to pay 50% of the normal cost rate as determined by CalPERS. Effective the first full pay period after and adoption of this agreement by the City Council, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For Council members occupying office on of after January 1, 2013, or former CalPERS employees that do not qualify as Classic employees hired by the City of Cupertino on or after January 1, 2013 For Coucil Members occupying office on or after January 1, 2013 CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. 138 16 Adopted by Action of the City Council July, 2013, October 2016 139 17 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE ‐ CITY CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which the elected official positions and their dependents may be covered. The premium cost for the insurance provided by the City shall not exceed $78.26134.85* per month per individual. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers. *Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of 140 18 City Council July, 2013, October 2016 141 19 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the elected officials and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre‐retirement, and other matters of a personal nature. Adopted by Action of the City Council July, 2013 142 20 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE – CITY CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July, 2013 143 21 City of Cupertino City Council and Planning Commission Compensation Effective July 1, 2013 144 22 CITY OF CUPERTINO CITY COUNCIL AND PLANNING COMMISSION EFFECTIVE JULY 1, 2013 The salaries, wages or rates of pay for members of the City Council and Planning Commission are set forth below. Only the City Council can modify these rates. Members of the City Council $730.24/month Members of the Planning Commission* $50.00/meeting (maximum $200 monthly) *Benefits as set forth in this document do not apply to members of the Planning Commission. 145 1 Exhibit A City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as elected official positions shall be eligible for participation under the Elected Officials Compensation Program as hereby adopted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion with this Compensation program is limited to persons holding positions as elected officials. These are designated by the voters and may be modified as circumstances warrant. The position in the following classification has been designated as elected official. ELECTED OFFICIAL CLASSIFICATIONS: Classification Title City Council Member Adopted by Action of the City Council, July 2013 146 2 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE As rates of pay are set forth under the Cupertino Municipal Code 2.16.020, and hereby adopted by action of the City Council, so are those rates of pay included herein as a part of this Compensation program. The inclusion herein of said rates and schedules does not affect any effective dates or otherwise reflect on the approval processes required but is shown as an integral part of this Program for completeness of record. Adopted by Action of the City Council July, 2013, October 2016 147 3 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that members of the City Council and the Council’s commissions and committees, shall be reimbursed or receive a direct advance according to the schedules, terms and conditions as set forth herein for the expenses authorized below. This policy is established in accordance with California Government Code Sections 53232.2 and 53232.3. III. AUTHORIZED EXPENSES The City Council and their commission and committee members can receive reimbursements or advances toward actual and necessary expenses incurred by participating in the following activities or events: 1. Communicating with representatives of regional, state and national government on City adopted policy positions; 2. Attending seminars, conferences, and training to improve skill and information levels; 3. Participating in regional, state and national organizations whose activities affect the City’s interests (such as the League of California Cities); 4. Attending International Conferences, budget limited to $2,500 per fiscal year, provided there is a benefit to the City; 5. Attending City events; 1. Attending functions of other local civic or community organizations where there is a clear nexus between the event and the member’s attendance as an official representative of the City. Purely social events, service club dues and meals, and political or charitable contributions or events would be excluded. For purposes of this section, reimbursable fundraisers and events include, but are not limited to, Cupertino Union School District, Fremont Union High School District, Foothill‐ De Anza Community College District, Silicon Valley Leadership Group, Cupertino American Cancer Society (ACS) Relay for Life and Cupertino Chamber of Commerce activities. 148 4 The City will not reimburse or advance payment toward expenses including, but not limited to: 1. The personal portion of any trip; 2. Family expenses, including those of a partner when accompanying Council or commission member on City related business, as well as child or pet related expenses. 3. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 4. Meals and entertainment paid on behalf of third parties outside of the City; 5. Gifts of any kind for any purpose; 6. Alcoholic beverages; 7. Non‐mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 8. Personal losses incurred while on City business. IV. BUDGETARY LIMITATIONS Reimbursement or advancement of expenses shall not exceed budgetary limitations. Changes in appropriations will be done through the budget process. V. REIMBURSEMENT AND ADVANCE SCHEDULE A. Intent This schedule is written with the intent that the City Councilmember, commissioner, or committee member will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive than paying for a taxi or airport shuttle, then officials should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out‐of‐town location, then a car should be rented. Air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. 149 5 B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40 mile distance from Cupertino when traveling to Alameda County. C. Registration The City will pay the registration fee for authorized attendance at a convention, conference, seminar or meeting. D. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee’s home and air port, destination or airport parking charges, taxi and shuttle services at the out‐of‐town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. E. Lodging Hotel or lodging expenses of the City official resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occur outside the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City‐paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non‐conference lodging policy described in the next paragraph should be followed to find another comparable hotel. Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government 150 6 rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. F. Meals 1. No Conference The actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City officials are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on an actual cost basis. The actual cost rate shall follow the rules described in the meals with no conference paragraph. G. Other Expenses Payments toward or reimbursement of other expenses related to authorized activities or events shall be limited to the actual costs consistent with the application of reasonable standards. Receipts must be kept and submitted for all expenses. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City official to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City’s behalf. Such request for an advance should be submitted to the City Manager or Department Head no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the official’s return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS 151 7 All expense reimbursement requests or final accounting of advances received must be approved by the City Manager or Department Head, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, accompanied by a business purpose for all expenditures and a receipt for each item other than mileage. The report will be a public record subject to disclosure under the Public Records Act. VIII. REPORTS TO CITY COUNCIL OR COMMISSIONS At the next regular City Council or commission meeting, each councilmember or commissioner shall briefly report on publicly noticed meetings attended at City expense. If multiple members attended the meeting, a joint report may be made. IX. POLICY VIOLATIONS Violations of this policy including falsifying expense reports may result in any or all of the following: (1) loss of reimbursement privileges, (2) demand for restitution to the City, (3) civil penalties of up to $1,000 per day and three times the value of the resources used, and 4) prosecution for misuse of public resources. Revised 7/83, 7/85, 7/87, 7/88, 7/91, 7/92, 12/07, 7/10 152 8 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 4 MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at the established IRS rates. Submission of reimbursement requests must be approved by the City Manager. Adopted by Action of the City Council July, 2013 153 9 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Each claim for City sponsored membership shall be submitted with their concurrence to the City Manager for approval. Subscriptions to or purchase of professional and technical publications may be provided at City expense when such have been authorized by the City Manager providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July, 2013 154 10 City of Cupertino ELECTED OFFICIALS’COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN ‐ CITY CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which the elected official positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be retained by the City. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Elected Official 733.39 134.85 868.24 Elected Official +1 1246.59 134.85 1381.44 Elected Official +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Elected Official 769.95 134.85 904.80 Elected Official +1 1308.92 134.85 1443.77 Elected Official +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Elected Official 808.45 134.85 943.30 Elected Official +1 1374.37 134.85 1509.22 Elected Official +2 1786.68 134.85 1921.53 155 11 *Dental Coverage: Effective the first month after Council adoption of MOU, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. . Adopted by Action of the City Council July, 2013, October 2016 156 12 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 9 LIFE INSURANCE It is the policy of the City of Cupertino to provide life insurance benefits to the elected officials to a maximum of $16,000. The elected officials may enroll in the life insurance program offered if eligible under the contract provisions of the policy and the personnel rules of the City. The full cost of premiums for these programs shall be paid by the City for such individuals. Adopted by Action of the City Council July, 2013 157 13 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the elected officials for services performed for the City. The City participates in the California Public Employees’ Retirement System (PERS) and deferred compensation plans have been established. Both the elected official and City may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of the elected officials. . The City shall maintain and administer means by which the elected officials in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Individual contributions to such plans may be made in such amounts as felt proper and necessary to the elected official. The City contributions shall be as determined by the City Council. Adopted by Action of the City Council July, 2013 158 14 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES’ RETIREMENT SYSTEM CONTRIBUTION A. Council Members occupying office on or before December 29, 2012 Only: For Council Members occupying office on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 retirement formula. Effective the first full pay period after adoption of this agreement by the City Council, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. Council Members occupying office on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only. For Council Members hired on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation Effective the first full pay period after and adoption of this agreement by the City Council, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For Council members occupying office on of after January 1, 2013, or former CalPERS employees that do not qualify as Classic employees hired by the City of Cupertino on or after January 1, 2013 For Council Members occupying office on or after January 1, 2013 CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this 159 15 category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July, 2013, October 2016 160 16 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE ‐ CITY CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which the elected official positions and their dependents may be covered. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per individual. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers. *Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July, 2013, October 2016 161 17 City of Cupertino ELECTED OFFICIALS COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the elected officials and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre‐retirement, and other matters of a personal nature. Adopted by Action of the City Council July, 2013 162 18 City of Cupertino ELECTED OFFICIALS’ COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE – CITY CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July, 2013 163 19 City of Cupertino City Council and Planning Commission Compensation Effective July 1, 2013 164 20 CITY OF CUPERTINO CITY COUNCIL AND PLANNING COMMISSION EFFECTIVE JULY 1, 2013 The salaries, wages or rates of pay for members of the City Council and Planning Commission are set forth below. Only the City Council can modify these rates. Members of the City Council $730.24/month Members of the Planning Commission* $50.00/meeting (maximum $200 monthly) *Benefits as set forth in this document do not apply to members of the Planning Commission. 165 RESOLUTION 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING THE APPOINTED EMPLOYEES’ COMPENSATION PROGRAM WHEREAS, the City Council desires to amend the Appointed Employees’ Compensation Program. NOW, THEREFORE, BE IT RESOLVED that the Appointed Compensation Program be amended, which is incorporated in this resolution by this reference and attached as Exhibit A. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 18th day of October 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 166 1 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as appointed management employees by the City Council in the City Manager's and City Attorney offices shall be eligible for participation under the Appointed Employees' Compensation Program as hereby ad opted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion in this Compensation program is limited to persons appointed by the City Council and holding positions as management employees, as defined under section 2.52.290 of the Cupertino Municipal Code, in the City Manager and City Attorney Offices. These are designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as appointed employees. MANAGEMENT CLASSIFICATIONS: Classification Title City Manager City Attorney In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 167 2 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City's ability to pay consistent with its fiscal policies. Effective the first full pay period after adoption by the City Council, a 1% salary increase will be added to the salary range of each classification in this unit. Effective the first full pay period in July 2017, a .75% salary increase will be added to the salary range of each classification in this unit. in July 2013, a 1.5% salary increase will be added to the salary ranges of classifications in this group. Effective the first full pay period in July 2014, a 1.5% salary increase will be added to the salary ranges of classifications in this group. Effective the first full pay period in July 2015, a 1.25% salary increase will be added to the salary ranges of classification in this group. See Attachment A for a list of paygrades. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016 168 3 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40-mile distance from Cupertino when traveling to Alameda County. C. Meetings A "meeting" shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City's operations or to enhance the attendee's capabilities in the discharge of assigned duties and responsibilities. 169 4 III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee's home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non-conference lodging policy described in the next paragraph should be followed to find another comparable hotel. 170 5 Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not 171 6 limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City- related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE A. Budgetary Limitations Reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City's behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and 172 7 transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee's return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 173 8 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees shall be paid an automobile allowance according to their employment contract with the City. Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 174 9 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Subscriptions to or purchase of professional and technical publications may be provided at City expense providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 175 10 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED Management employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor's approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 176 11 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee's gross pay. The City will not pay medical insurance cash back (excess of the monthly premium less the cost of the medical coverage). October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 Medical Insurance Coverage Level City Contribution 177 12 Employee 702.00 Employee + 1 762.00 Employee +2 802.00 Appointed employees in the City Manager and City Attorney positions will have immediate vesting of retiree medical benefits. Effective 11/1/13 or as soon as administratively possible, the City will establish a Health Reimbursement Account (HRA) to be used towards health related expenses. Upon establishment, the City will deposit an amount equal to $83.00/month from 7/1/13 to plan enactment. Thereafter, employees will receive $83.00/month in their HRA. Effective with the first full pay period in July 2014, employees will receive an additional $80.00/month in HRA to be used towards health related expenses. During the 1314 contract year, the City will be reopening negotiations to discuss elimination of the CalPERS 100/90 retirement plan and replacement of said plan. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013, October 2016 178 13 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year's Day 2. Martin Luther King Day 3. Presidents' Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year's Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013 179 14 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 9 LIFE, AND LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for the City Manager and City Attorney that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee's annual salary to a maximum of $250,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 180 15 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the City Manager and the City Attorney for services performed for the City. The City participates in the California Public Employees' Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent attorney employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 181 16 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective in the first full pay period in July 2013, the City agrees to pay the employee's contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 4.5% of applicable salary and each employee agrees to pay 3.5% of applicable salary. Effective in the first full pay period in July 2014, the City agrees to pay the employee's contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 3.0% of applicable salary and each employee agrees to pay 5.0% of applicable salary. Effective in the first full pay period in July 2015, the City agrees to pay the employee's contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 1.75% of applicable salary and each employee agrees to pay 6.25% of applicable salary. The City agrees to pay the employer's contribution rate to the Public Employees Retirement System to the extent required by law and the par ties acknowledge that by January 1, 2018 the employees are required to pay 50% of the normal cost rate as determined by CalPERS. Effective the first full pay period after adoption of this agreement by the City Council, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation- 182 17 Effective in the first full pay period in July 2013, the City agrees to pay the employee's contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 3.5 % of applicable salary and each employee agrees to pay 3.5% of applicable salary. Effective in the first full pay period in July 2014, the City agrees to pay the employee's contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed 2.0 % of applicable salary and each employee agrees to pay 5.0% of applicable salary.Effective in the first full pay period in July 2015, the City agrees to pay the employee's contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75 % of applicable salary and each employee agrees to pay 6.25% of applicable salary. The City agrees to pay the employer's contribution rate to the Public Employees Retirement System to the extent required by law and the parties acknowledge that by January 1, 2018 the employees are required to pay 50% of the normal cost rate as determined by CalPERS. Effective the first full pay period after and adoption of this agreement by the City Council, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, July 2013, October 2016 183 18 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $78.26134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers.*Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, October 2016 184 19 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The City Manager and City Attorney shall receive forty (40)eighty (80) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 185 20 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the City Manager and the City Attorney and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 186 21 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 15 PUBLIC SERVICE CREDIT — VACATION ACCUMULATION The City Manager and the City Attorney shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 187 22 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the City Manager and the City Attorney pursuant to Resolution No. 15-092 as amended. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 188 23 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE — EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012 189 24 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM EXEMPT POSITIONS The salaries, wages, or rates of pay for City Attorney and City Manager employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Salary Effective July 1, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $17,822 City Attorney $0 $0 $0 $0 $18,679 Salary Effective August 26, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $18,333 Salary Effective December 17, 2013 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $20,468 Salary Effective July 1, 2014 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $18,608 City Attorney $0 $0 $0 $0 $20,775 Salary Effective October 7, 2014 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $21,075 Salary Effective October 21, 2014 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $20,000 Salary Effective April 7, 2015 190 25 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $22,129 Salary Effective July 1, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $20,250 City Attorney $0 $0 $0 $0 $22,406 Salary Effective September 6, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $21,262.50 Salary Effective November 1, 2015 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $17,850 Monthly Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,749.64 City Manager $0 $0 $0 $0 $21,904.63 Monthly Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,890.26 City Manager $0 $0 $0 $0 $22,068.91 191 Exhibit A 1 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as appointed management employees by the City Council in the City Manager's and City Attorney offices shall be eligible for participation under the Appointed Employees' Compensation Program as hereby ad opted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion in this Compensation program is limited to persons appointed by the City Council and holding positions as management employees, as defined under section 2.52.290 of the Cupertino Municipal Code, in the City Manager and City Attorney Offices. These are designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as appointed employees. MANAGEMENT CLASSIFICATIONS: Classification Title City Manager City Attorney In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 192 Exhibit A 2 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City's ability to pay consistent with its fiscal policies. Effective the first full pay period after adoption by the City Council, a 1% salary increase will be added to the salary range of each classification in this unit. Effective the first full pay period in July 2017, a .75% salary increase will be added to the salary range of each classification in this unit. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016 193 Exhibit A 3 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40-mile distance from Cupertino when traveling to Alameda County. C. Meetings A "meeting" shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City's operations or to enhance the attendee's capabilities in the discharge of assigned duties and responsibilities. 194 Exhibit A 4 III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee's home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non-conference lodging policy described in the next paragraph should be followed to find another comparable hotel. 195 Exhibit A 5 Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not 196 Exhibit A 6 limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City- related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE A. Budgetary Limitations Reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City's behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and 197 Exhibit A 7 transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee's return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 198 Exhibit A 8 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees shall be paid an automobile allowance according to their employment contract with the City. Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 199 Exhibit A 9 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Subscriptions to or purchase of professional and technical publications may be provided at City expense providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 200 Exhibit A 10 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED Management employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor's approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 201 Exhibit A 11 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in the City Manager and City Attorney positions and the ir dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee's gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 Appointed employees in the City Manager and City Attorney positions will have immediate vesting of retiree medical benefits. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013, October 2016 202 Exhibit A 12 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year's Day 2. Martin Luther King Day 3. Presidents' Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year's Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013 203 Exhibit A 13 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 9 LIFE,LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for the City Manager and City Attorney that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee's annual salary to a maximum of $250,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 204 Exhibit A 14 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the City Manager and the City Attorney for services performed for the City. The City participates in the California Public Employees' Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent attorney employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 205 Exhibit A 15 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective the first full pay period after adoption of this agreement by the City Council, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation- Effective the first full pay period after and adoption of this agreement by the City Council, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, July 2013, October 2016 206 Exhibit A 16 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers.*Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, October 2016 207 Exhibit A 17 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The City Manager and City Attorney shall receive eighty (80) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 208 Exhibit A 18 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the City Manager and the City Attorney and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 209 Exhibit A 19 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 15 PUBLIC SERVICE CREDIT — VACATION ACCUMULATION The City Manager and the City Attorney shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 210 Exhibit A 20 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the City Manager and the City Attorney pursuant to Resolution No. 15-092 as amended. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 211 Exhibit A 21 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE — EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012 212 Exhibit A 22 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM EXEMPT POSITIONS The salaries, wages, or rates of pay for City Attorney and City Manager employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Monthly Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,749.64 City Manager $0 $0 $0 $0 $21,904.63 Monthly Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,890.26 City Manager $0 $0 $0 $0 $22,068.91 213 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1957 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:9/6/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Approval of the Third Amendment to Santa Clara Valley Urban Runoff Pollution Prevention Program Memorandum of Agreement to extend its term through one fiscal year beyond the date of termination of the current Municipal Regional Stormwater Permit (estimated 2021) Sponsors: Indexes: Code sections: Attachments:Staff Report A - Third Amendment Draft Agreement B - Appendices 1-3: Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Action ByDate Action ResultVer. City Council10/18/20161 Subject:ApprovaloftheThirdAmendmenttoSantaClaraValleyUrbanRunoffPollution PreventionProgramMemorandumofAgreementtoextenditstermthroughonefiscalyear beyondthedateofterminationofthecurrentMunicipalRegionalStormwaterPermit(estimated 2021) AuthorizetheCityManagertoexecutetheThirdAmendment(AttachmentA)toanAgreement ProvidingforImplementationoftheSantaClaraValleyUrbanRunoffPollutionPrevention Program(AttachmentB),amulti-jurisdictionalAgreementbetweenSantaClaraCounty,the Santa Clara Valley Water District, and thirteen Santa Clara County municipalities CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™214 1 PUBLIC WORKS DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Approval of the Third Amendment to Santa Clara Valley Urban Runoff Pollution Prevention Program Memorandum of Agreement to extend its term through one fiscal year beyond the date of termination of the current Municipal Regional Stormwater Permit (estimated 2021). Recommended Action Authorize the City Manager to execute the Third Amendment (Attachment A) to an Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (Attachment B), a multi-jurisdictional Agreement between Santa Clara County, the Santa Clara Valley Water District, and thirteen Santa Clara County municipalities. Description The Santa Clara Valley Urban Runoff Pollution Prevention Program (Program) was originally formed through a Memorandum of Agreement (MOA) with fifteen other Santa Clara Valley-based local governments in the late 1980s, as a means to assist the cities to negotiate and comply with the federal Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit. Municipalities are also required to have a State-issued permit to discharge rain water through their storm drainage systems to creeks, and ultimately, San Francisco Bay. A new Municipal Regional Stormwater NPDES Permit (MRP 2.0) was issued to 76 Bay Area permittees, including Cupertino, in November 2015 and became effective January 1, 2016. This re-issued permit continues previous requirements and contains new requirements, including one to develop a green infrastructure plan. The Program enables participating agencies to take a coordinated approach and leverage resources to comply with the stormwater requirements. The Santa Clara Valley Program allocates costs to its fifteen member agencies based upon a combination of benefits received and stormwater runoff factors. This approach has proven highly effective in assisting the City in addressing permit responsibilities to reduce the pollution of local creeks and the San Francisco Bay. 215 2 The Program’s success has also been recognized outside of the Bay Area. For example, the Santa Clara Valley Urban Runoff Pollution Prevention Program (Program) was recently awarded national Gold Level awards for Innovation and Program Management. Citing leadership in using novel approaches to reduce stormwater pollution and commitment to installing green infrastructure, the Program was also honored with the 2016 Overall Highest Score in the nation for a Phase 1 Municipal Stormwater Program. These awards are part of the National Municipal Stormwater and Green Infrastructure Awards program, led by the Watershed Environment Federation through a cooperative agreement with the U.S. Environmental Protection Agency (EPA). Based on a recent vote of the Program’s Management Committee on August 18, 2016, on which Cupertino participates, a third amendment of the MOA to extend the Program on its original terms was unanimously approved for referral to each governing body for execution. The extension will allow the Program to continue to operate and serve the participating agencies throughout the current Clean Water Act Permit’s term plus one additional fiscal year (providing Program assistance until at least the end of 2021 and addressing the Permit’s next reissuance by the San Francisco Bay Regional Water Quality Control Board). All Program participants have been asked to obtain authorization and return an appropriate signature on the amendment as soon as possible and prior to Thanksgiving as the MOA will expire in December if no action is taken. Sustainability Impacts A significant sustainability benefit is the reduction or elimination of pollutant discharges, which could degrade local creeks and threaten the supply of clean water. Extension of the MOA is consistent with the City of Cupertino’s General Plan Community Vision 2040: GOAL ES-7 - Ensure Protection and Efficient Use of Water Resources. Implementation of the NPDES Program is exempt from the provisions of the California Environmental Quality Act (CEQA) under Section 15308 of the CEQA guidelines, as it assures the maintenance, restoration, enhancement, or protection of the environment. Fiscal Impact Approval of the Third Amendment To Agreement Providing For Implementation Of The Santa Clara Valley Urban Runoff Pollution Prevention Program commits the City to continued participation in the Program until one year beyond the termination date of the City’s next NPDES stormwater discharge permit (estimated 2021). This includes annual payment of the City’s proportionate share (2.46%) of Program costs ($112,870 for FY 16- 17). Continued funding for the City’s participation in the Program for FY 16-17 is, as in all previous years, included in the City’s Non Point Source budget (230-81-802). 216 3 The City’s permit compliance costs for implementing the NPDES permit, include water monitoring, polychlorinated biphenyls (PCB) controls, litter eradication, low impact development and maintenance verification, green infrastructure planning, public outreach, construction site and commercial property inspections, and the investigation of illicit discharges. Costs for these activities would far exceed the City’s current Non Point Source budget if the City attempted to implement them without participating in the Program. The City’s allocated cost is necessary to ensure compliance with the increasingly stringent State and Federal Clean Water Act requirements and increased Program costs. ____________________________________ Prepared by: Cheri Donnelly, Environmental Programs Manager Reviewed by: Timm Borden, Director of Public Works and Roger Lee, Assistant Director of Public Works Approved for Submission by: David Brandt, City Manager Attachments: A - Third Amendment to Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program B - Appendices 1-3: Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program as fully executed as of March 10, 2000; First Amendment to Agreement; and Second Amendment to Agreement 217 1 THIRD AMENDMENT TO AGREEMENT PROVIDING FOR IMPLEMENTATION OF THE SANTA CLARA VALLEY URBAN RUNOFF POLLUTION PREVENTION PROGRAM THIS THIRD AMENDMENT TO AGREEMENT PROVIDING FOR IMPLEMENTATION OF THE SANTA CLARA VALLEY URBAN RUNOFF POLLUTION PREVENTION PROGRAM (the “Amendment”) is entered into by and between the SANTA CLARA VALLEY WATER DISTRICT, a local public agency of the State of California (“District”); CITY OF CAMPBELL, a municipal corporation of the State of California; CITY OF CUPERTINO, a municipal corporation of the State of California; CITY OF LOS ALTOS, a municipal corporation of the State of California; TOWN OF LOS ALTOS HILLS, a municipal corporation of the State of California; TOWN OF LOS GATOS, a municipal corporation of the State of California; CITY OF MILPITAS, a municipal corporation of the State of California; CITY OF MONTE SERENO, a municipal corporation of the State of California; CITY OF MOUNTAIN VIEW, a municipal corporation of the State of California; CITY OF PALO ALTO, a municipal corporation of the State of California; CITY OF SAN JOSE, a municipal corporation of the State of California; CITY OF SANTA CLARA, a municipal corporation of the State of California; CITY OF SARATOGA, a municipal corporation of the State of California; CITY OF SUNNYVALE, a municipal corporation of the State of California; and COUNTY OF SANTA CLARA, a political subdivision of the State of California. All of the above-mentioned entities are hereinafter collectively referred to as “Parties” or individually as “Party.” RECITALS A. The Parties previously entered into that certain Agreement Providing For Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (the “Agreement” or “MOA”) pursuant to which the Parties established certain terms and conditions relating to the implementation and oversight of the Santa Clara Valley Urban Runoff Pollution Prevention Program (the “Program”), including a cost sharing allocation, which was appended thereto as Exhibit A. A copy of the Agreement, including Exhibit A, is attached hereto as Appendix 1. Unless otherwise set forth herein, all terms shall have the meaning set forth in the Agreement; B. The Agreement originally provided for a five-year term, which, based on its execution, was set to conclude on or about March 10, 2005. However, on or about February 20, 2005, the Parties unanimously entered into a First Amendment to the Agreement (attached hereto as Appendix 2), which extended the term of the Agreement by one additional year; C. The Parties thereafter unanimously entered into a Second Amendment to the Agreement (attached hereto as Appendix 3), which extended the term of the amended 218 2 Agreement by “one fiscal year beyond the termination date of the (then) next NPDES Permit issued to the Parties, including any administrative extension of the (then) next NPDES Permit’s term which occurred pursuant to the NPDES regulations.” The next NPDES permit applicable to the Parties (and others) was subsequently adopted the California Regional Water Quality Control Board, San Francisco Bay Region (“RWQCB SFBR”) on October 14, 2009 and was known as the Municipal Regional Permit (“MRP”) because it covered numerous public agencies in the San Francisco Bay Region in addition to the Parties; D. The MRP was then administratively extended until a new NPDES Permit applicable to the Parties (and the other public entities in the San Francisco Bay Region) was adopted by the California Regional Water Quality Control Board, San Francisco Bay Region, on November 19, 2015 (“MRP 2.0”). MRP 2.0 became effective on January 1, 2016 and, unless subject to an administrative extension, is scheduled to terminate on December 31, 2020; E. The Parties expect to utilize the Program to continue to represent their interests relative to MRP 2.0 (including with respect to an administrative appeal of its adoption that is currently pending before the State Water Resources Control Board), to help them effectuate certain aspects of compliance with MRP 2.0, and, beyond that, in negotiating the terms of a further renewed NPDES Permit when MRP 2.0 nears the end of its anticipated five-year term and any administrative extension provided thereto; F. The Parties also expect to continue to utilize the Program’s preferred approach of achieving consensus to resolve issues and reach decisions, and to rely on the Majority Vote mechanism set forth in Section 2.08 of the Agreement at the Management Committee level only when consensus-based resolutions appear or become elusive; G. The Parties now desire to update the amended Agreement and further extend the term of the MOA as set forth below; H. Section 7.02 of the MOA provides that it may be amended by the unanimous written agreement of the Parties and that all Parties agree to bring any proposed amendments to their Council or Board, as applicable, within three (3) months following acceptance by the Management Committee; and I. The Program’s Management Committee accepted this Amendment for referral to the Parties’ Councils and/or Boards at its meeting on August 18, 2016. NOW, THEREFORE, THE PARTIES HERETO FURTHER AGREE AS FOLLOWS: 1. Recognition of Current Permit. Recital F of the Agreement, as previously amended, is hereby further amended by the addition of the following subsections: 6. Order No. R2-2009-0074 (the Municipal Regional Permit, NPDES Permit CAS612008); adopted, October 14, 2009 and amended by the RWQCB SFBR on November 28, 2011; 219 3 7. Order No. R2-2015-0049 (MRP 2.0, NPDES Permit CAS612008); adopted by the RWQCB SFBR on November 19, 2015. 2. Extension of Term of Agreement. Sections 6.02 and 6.02.01 of the Agreement, as previously amended, are hereby replaced as follows: This Agreement shall have a term extending one fiscal year beyond the date of termination of MRP 2.0; such termination date shall, however, be deemed to include any administrative extension of MRP 2.0 which occurs or arises pursuant to the NPDES regulations or any modification of the MRP 2.0 termination date that arises from an NPDES permitting action undertaken by the RWQCB SFBR or California State Water Resources Control Board. 3. Superseding Effect. This Third Amendment of the Agreement shall supplement the Second Amendment of the Agreement and supersede any conflicting provisions of the Second Amendment of the Agreement. [remainder of page intentionally blank] 220 4 IN WITNESS WHEREOF, the Parties have executed this Third Amendment effective as of the last date indicated below or December 19, 2016, whichever arises earlier. Santa Clara Valley Water District: By: ____________________________________ Name: ____________________________________ Title: ____________________________________ Date: ____________________________________ County of Santa Clara: By: ____________________________________ Name: ____________________________________ Title: ____________________________________ Date: ____________________________________ City of Cupertino: By: ____________________________________ Name: ____________________________________ Title: ____________________________________ Date: ____________________________________ 221 sf-3677154 Appendix 1 Agreement Providing For Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program as fully executed as of March 10, 2000 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1992 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:9/20/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Application for Alcohol Beverage License for PEFF, LLC (dba Enzo's Restaurant), 21275 Stevens Creek Boulevard, Suite 510 Sponsors: Indexes: Code sections: Attachments:Staff Report A - Application Action ByDate Action ResultVer. City Council10/18/20161 Subject:ApplicationforAlcoholBeverageLicenseforPEFF,LLC(dbaEnzo'sRestaurant), 21275 Stevens Creek Boulevard, Suite 510 RecommendapprovaltotheCaliforniaDepartmentofAlcoholicBeverageControlofthe applicationforAlcoholBeverageLicenseforPEFF,LLC(dbaEnzo'sRestaurant),21275 Stevens Creek Boulevard, Suite 510 CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™242 CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Application for Alcoholic Beverage License for Enzo’s Restaurant, 21275 Stevens Creek Boulevard #510 Recommended Action Recommend approval to the California Department of Alcoholic Beverage Control of the Application for Alcoholic Beverage License for Enzo’s Restaurant, 21275 Stevens Creek Boulevard #510 Description Name of Business: Enzo’s Restaurant Location: 21275 Stevens Creek Boulevard #510 Type of Business: Restaurant Type of License: 41 – On-Sale Beer & Wine – Eating Place (Restaurant) Reason for Application: Original Fees, Annual Fees Discussion There are no zoning or use permit restrictions which would prohibit the sale of alcohol as proposed and staff has no objection to the issuance of this license. License Type 41 authorizes the sale of beer and wine for consumption on or off the premises where sold. This location is at the Oaks Shopping Center. Sustainability Impact None Fiscal Impact None _____________________________________ Prepared by: Jeffrey Tsumura, Assistant Planner, Planning Department Reviewed by: Benjamin Fu, Assistant Director of Community Development; Aarti Shrivastava, Assistant City Manager - Community Development and Strategic Planning Approved for Submission by: David Brandt, City Manager Attachment: A - Application COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 www.cupertino.org 243 244 245 246 247 248 249 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2075 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/6/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Application for Alcohol Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way Sponsors: Indexes: Code sections: Attachments:Staff Report A- Application Action ByDate Action ResultVer. City Council10/18/20161 Subject:ApplicationforAlcoholBeverageLicenseforGenzoSekine(dbaBacchusWines), 10643 Larry Way Recommend approval to the California Department of Alcoholic Beverage Control of the application for Alcohol Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™250 CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Application for Alcoholic Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way. Recommended Action Recommend approval to the California Department of Alcoholic Beverage Control of the Application for Alcoholic Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way. Description Name of Business: Bacchus Wines Location: 10643 Larry Way Type of Business: Home Occupation Type of License: 85 – Limited Off-Sale Retail Wine License Reason for Application: Annual Fee, Original Fees Discussion There are no zoning or use permit restrictions which would prohibit the sale of alcohol as proposed and staff has no objection to the issuance of this license. License Type 85 authorizes the online sales of wine and prohibits the licensee from conducting sales directly to consumers from a premises open to the public. Sustainability Impact None Fiscal Impact None _____________________________________ Prepared by: Jeffrey Tsumura, Assistant Planner Reviewed by: Benjamin Fu, Assistant Director of Community Development; Aarti Shrivastava, Assistant City Manager - Community Development and Strategic Planning Approved for Submission by: David Brandt, City Manager Attachment: A - Application COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 www.cupertino.org 251 252 253 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2004 Name: Status:Type:Public Hearings Agenda Ready File created:In control:9/26/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Enact an Urgency Ordinance to prohibit non-medical marijuana cultivation, dispensaries, transport and deliveries and commercial cannabis activities within the City of Cupertino. (Location: City-wide; Applicant: City of Cupertino) Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Interim Urgency Ordinance B - 2015 Association of Colorado Chiefs of Police Report C - FAQ from Website Action ByDate Action ResultVer. City Council10/18/20161 Subject:EnactanUrgencyOrdinancetoprohibitnon-medicalmarijuanacultivation, dispensaries,transportanddeliveriesandcommercialcannabisactivitieswithintheCityof Cupertino. (Location: City-wide; Applicant: City of Cupertino) ThattheCityCouncil:1.FindthattheproposedactionsareexemptfromCEQA;and2.Enact InterimUrgencyOrdinanceNo.16-2153“AnInterimUrgencyOrdinanceoftheCityCouncil oftheCityofCupertinoEstablishingaMoratoriumonNon-MedicalMarijuanaDispensaries, MarijuanaCultivationFacilities,CommercialCannabisActivitiesandMarijuanaTransportand DeliverieswithintheCityofCupertinoPendingCompletionofanUpdatetotheCity’sZoning Code" CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™254 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Enact an Urgency Ordinance to prohibit non-medical marijuana cultivation, dispensaries, transport and deliveries and commercial cannabis activities within the City of Cupertino. (Location: City-wide; Applicant: City of Cupertino) Recommended Action That the City Council: 1. Find that the proposed actions are exempt from CEQA; and 2. Enact Urgency Ordinance No. 16-2153 “An Interim Urgency Ordinance of the City Council of the City of Cupertino Establishing a Moratorium on Non-Medical Marijuana Dispensaries, Marijuana Cultivation Facilities, Commercial Cannabis Activities and Marijuana Transport and Deliveries within the City of Cupertino Pending Completion of an Update to the City’s Zoning Code” (Attachment A). Discussion Background Following the adoption of three bills (Assembly Bill 243, Assembly Bill 266, and Senate Bill 643) creating a licensing and regulatory framework for medical marijuana, in January 2016, the City adopted an urgency ordinance and a regular ordinance amending the Municipal Code to disallow all medical marijuana dispensaries, other medical marijuana businesses, and commercial cultivation of medical marijuana but to allow cultivation of medical marijuana for personal use and allow delivery/transport of medical marijuana by qualified caregivers or qualified patients, in conformance with state law. However, those ordinances did not regulate non-medical marijuana, which remains prohibited under both federal and state law. Proposition 64, on the November 8, 2016 ballot, would allow the non-medical use, personal cultivation, and establishment of commercial marijuana facilities and businesses. Proposition 64 also establishes a licensing scheme for non-medical marijuana cultivation and manufacturer, testing, and distribution establishments. The proposed measure allows local agencies land use control over such uses. This Urgency 255 Ordinance is proposed to ensure that the City retain its local control over non-medical marijuana use while the state regulations and licensing are fleshed out and to allow additional time to prepare a regular ordinance to amend the City’s Municipal Code in compliance with Proposition 64. Currently, The Cupertino Municipal Code does not list non-medical marijuana dispensaries, cultivation sites, and other non-medical marijuana establishments as either permitted or conditionally-permitted land uses. Such activities, are both prohibited under the principles of permissive zoning (any use not enumerated is deemed prohibited) an illegal under both state and federal law. Discussion Staff recommends that the City Council adopt an Urgency Ordinance which prohibits activities related to the cultivation, delivery, and other commercial cannabis activities of non-medical marijuana similar to one adopted for medical marijuana in January 2016. The Urgency Ordinance is effective immediately in order to ensure that the City has an ordinance before the November 8, 2016 General Election to preserve Cupertino’s local control over this important topic. If passed, Proposition 64 provides for a state licensing program for distribution and cultivation, which is not expected to begin for at least a year. However, some provisions of Proposition 64, specifically, personal use cultivation, would be effective immediately. The Urgency Ordinance is effective for 45 days from date of adoption. If needed, the Urgency Ordinance may be extended, for up to a 22 month period, which would allow the City adequate time to prepare an ordinance amendment to the City’s Municipal Code. Should Proposition 64 pass, staff will bring a regular ordinance to the Planning Commission and the City Council’s consideration which will proceed under the usual path, and would be effective thirty days after the ordinance enactment. The proposed Urgency Ordinance stipulates that the City’s current prohibition on all of the potential marijuana business that could possibly operate under the medical marijuana laws applied equally to non-medical marijuana. Proposition 64 allows the City to prohibit outdoor cultivation of marijuana for personal recreational use but not indoor cultivation of marijuana for personal recreational use. The Urgency Ordinance prohibits outdoor cultivation for personal use but allows indoor cultivation of recreational marijuana for personal use if it occurs in conformance with state law. If Proposition 64 passes, the City can also consider regulations of indoor cultivation. The Urgency Ordinance contains findings stating the basis for the urgency as well as the facts to justify the preservation of the public health, safety, and welfare. As stated in the staff report dated January 19, 2016 and the materials provided when Council considered 256 medical marijuana, many California cities have experienced negative secondary effects from medical marijuana businesses, including dispensaries, cultivation facilities, and delivery services. In addition, the negative effects of non-medical marijuana use are also widely documented in various news stories from states where recreational marijuana use has been legalized1 and in the attached 2015 report from the Colorado Association of Chiefs of Police (Attachment B.) These negative impacts have included unsafe construction and electrical wiring, noxious fumes and odors, and increased crime in and around marijuana establishments. The state has yet to license medical marijuana facilities. According to the California Bureau of Medical Cannabis Regulation, the “Bureau is still in the early stages of development and won’t be accepting applications for licenses until 2018” (Attachment C.) Therefore, assuming Proposition 64 passes, state licensing of non-medical marijuana is not anticipated at least until 2018. Although the City does not take formal position on Proposition 64, adoption of the Urgency Ordinance ensures that the City does not lose the ability to regulate, allow or prohibit non-medical marijuana dispensaries, cultivation sites and delivery services in the future should the City wish to consider allowing such uses to operate within the City at a later date. Noticing and Public Comment Urgency ordinances do not require any noticing. Environmental Impact (CEQA) The proposed Ordinances are not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that these Ordinances are found to be a project under CEQA, they are exempt CEQA Guidelines section 15061(b)(3) because they can be seen with certainty to have no possibility of a significant effect on the environment, as such uses are already prohibited under the Municipal Code. Sustainability Impact No impacts Fiscal Impact 1 See, for example, http://www.golocalpdx.com/news/report-claims-legalized-marijuana-is-proving-to- have-negative-conseque; http://www.newsweek.com/unexpected-side-effects-legalizing-weed-339931. 257 No impacts _____________________________________ Prepared by: Piu Ghosh, Principal Planner Reviewed by: Benjamin Fu, Assistant Director of Community Development Aarti Shrivastava, Assistant City Manager Approved for Submission by: David Brandt, City Manager Attachments: A. Draft Urgency Ordinance No. 16-2139 “An Interim Urgency Ordinance of the City Council of the City of Cupertino Establishing a Moratorium on Medical Marijuana Dispensaries, Marijuana Cultivation Facilities, Commercial Cannabis Activities and Medical Marijuana Deliveries within the City of Cupertino Pending Completion of an Update to the City’s Zoning Code” B. 2015 Association of Colorado Chiefs of Police Report (http://www.nccpsafety.org/assets/files/library/Legalized_Marijuana_Practical_Guid e_for_Law_Enforcement.pdf) C. Bureau of Medical Cannabis Regulation Frequently Asked Questions (http://www.bmcr.ca.gov/about_us/faq.shtml) 258 INTERIM URGENCY ORDINANCE NO. 16-2153 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ESTABLISHING A MORATORIUM ON NON-MEDICAL MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION FACILITIES, COMMERCIAL CANNABIS ACTIVITIES AND MARIJUANA TRANSPORT AND DELIVERIES WITHIN THE CITY OF CUPERTINO PENDING COMPLETION OF AN UPDATE TO THE CITY’S ZONING CODE WHEREAS, this Ordinance is exempt from the provisions of the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) (CEQA) because it can be seen with certainty that there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment, and the Ordinance is exempt from CEQA pursuant to CEQA Guidelines Sections 15061(b)(1), 15061(b)(2), and 15061(b)(3). Moreover, the adoption of this Ordinance is further exempt from CEQA because the Ordinance does not change existing City law and practice. WHEREAS, the City Council is the decision making body on this Ordinance, and before taking action on it, using its independent judgment, finds such CEQA exemptions to apply; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: SECTION 1. Authority. This Ordinance is adopted pursuant to the provisions set forth in Government Code sections 36937(b) and 65858(a) (b) and pursuant to other applicable law. SECTION 2. Findings. In adopting this Ordinance, the City Council finds: A. In 1970, Congress enacted the Controlled Substances Act (CSA) which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States. B. In 1972, California added Chapter 6 to the state Uniform Controlled Substances Act, commencing at Health and Safety Code section 11350, which established the state’s prohibition, penalties, and punishments for the possession, cultivation, transportation, and distribution of marijuana. 259 Ordinance No. Page 2 C. In 1996, the voters of the State of California approved Proposition 215 (the "Act;" Health and Safety (H&S) Code Section 11362.5). D. On October 9, 2015, Assembly Bills 243 and 266 and Senate Bill 643 (collectively, the “Medical Marijuana Regulation and Safety Act” or “MMRSA”) were enacted to create a state regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana, the manufacturing of medical marijuana products, and physician recommendations for medical marijuana. The new law also recognizes a range of medical marijuana businesses referred to as “commercial cannabis activities,” including cultivation businesses, marijuana product manufacturers, marijuana distributors and transporters, marijuana testing laboratories, and dispensaries, and provides immunity to marijuana businesses operating with both a state license and a local permit. E. The Municipal Code does not have express provisions regarding non-medical marijuana dispensaries, non-medical marijuana cultivation facilities, commercial cannabis activities, and non-marijuana deliveries. These uses are not listed as a permitted or conditionally permitted land uses in the Zoning Code and are therefore prohibited in Cupertino under principles of permissive zoning (City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 431-433). Moreover, the Municipal Code requires compliance with the most restrictive law, which in this case is federal law, which prohibits all marijuana activity. (Cupertino Municipal Code §§1.04.010(5), 19.04.030) F. It is imperative that the City retain local land use control over marijuana cultivation. Several California cities and counties have experienced serious adverse impacts associated with and resulting from medical marijuana dispensaries and cultivation sites. According to these communities and according to news stories widely reported, medical marijuana activities have resulted in and/or caused an increase in crime, including burglaries, robberies, violence, and illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need in the areas immediately surrounding such medical marijuana activities. There have also been large numbers of complaints of odors related to the cultivation and storage of marijuana. G. A California Police Chiefs Association compilation of police reports, news stories, and statistical research regarding crimes involving medical marijuana businesses and their secondary impacts on the community is contained in a 2009 white paper report which is attached to the staff report presented to the City Council on January 16, 2016, and is on file with the City Clerk. 260 Ordinance No. Page 3 H. The Santa Clara County District Attorney’s Office issued a May 2014 memorandum entitled “Issues Surrounding Marijuana in Santa Clara County,” which outlined many of the negative secondary effects resulting from marijuana cultivation; a copy of this memorandum is attached to the staff report presented to the City Council on January 16, 2016, and is on file with the City Clerk. I. The Santa Clara County Public Defender issued a May 2014 memorandum entitled “Substance-Related Suspensions in the East Side Union High School District,” describing a correlation between substance abuse -related suspensions in local high schools and a proliferation of medical marijuana dispensaries in the area; a copy of this memorandum is attached to the staff report presented to the City Council on January 16, 2016, and is on file with the City Clerk J. The Police Foundation and the Colorado Association of Chiefs of Police issued a 2015 report entitled “Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement,” which outlined many of the summarize the numerous challenges faced by law enforcement when enforcing the laws surrounding legalization, to document solutions that have been proposed and put into effect, and outline problems that still need to be addressed; a copy of this memorandum is attached to the staff report presented to the City Council with this ordinance and is on file with the City Clerk. K. News stories regarding adverse impacts of medical marijuana businesses, including dispensaries, cultivation sites, and delivery services, are attached to the staff report presented to the City Council on January 16, 2016, and is on file with the City Clerk. L. It is reasonable to conclude that non-medical marijuana dispensaries, non-medical marijuana cultivation facilities, commercial cannabis activities, and non-medical marijuana deliveries would cause similar adverse impacts on the public health, safety, and welfare in Cupertino. M. Although the state law has established a regulatory system for medical marijuana, the California Bureau of Medical Cannabis Regulation advises that it is in the early stages of developing a licensing program and will not be accepting applications for medical marijuana license until 2018. N. In order to protect the public health, safety, and welfare, the City Council desires to amend the Municipal Code to address, in express terms, non-medical marijuana dispensaries, non-medical marijuana cultivation facilities, commercial cannabis activities, and non-medical marijuana deliveries. In the event that Proposition 261 Ordinance No. Page 4 64 passes, the City Council hereby determines that the Municipal Code is in need of further review and revision to protect the public against potential negative health, safety, and welfare impacts and preserve local control over non-medical marijuana establishments. Non-medical marijuana currently is prohibited under both state and federal law. O. Proposition 64 is on the California ballot for the November 8, 2016, election which would decriminalize under state law recreational marijuana use, cultivation, and distribution and further establish licensing program for non-medical commercial cultivation, testing, and distribution of non-medical marijuana and the manufacturing of non-medical marijuana products. However, such licenses will be issues at least until 2018. P. Proposition 64 expressly preserves local jurisdictions’ ability to adopt and enforce local ordinances to regulate non-medical marijuana establishments including local zoning and land use requirements, business license requirements, and the ability to completely prohibit the establishment or operation of one or more types of non-medical marijuana businesses. Q. Proposition 64 further recognizes the City’s ability to completely prohibit outdoor planting, harvesting, cultivation or processing of non-medical marijuana for personal use, and the City’s ability to regulate indoor cultivation for personal use. R. The City does not take a formal position on Proposition 64, but in order to preserve local control, the City confirms that such non-medical marijuana is prohibited within the City to the fullest extent permitted by law. S. Non-medical marijuana use, cultivation, and distribution is prohibited by both state and federal law. A regular ordinance is unnecessary if Proposition 64 does not pass. Moreover, the compacted time frame between now and the November General Election does not provide sufficient time to consider and adopt a regular zoning code amendment, which includes public notice, consideration by the Planning Commission, and first and second reading before the City Council, an interim prohibition on recreational use of marijuana and the issuance of any permits and/or entitlements relating to marijuana cultivation is necessary for a period of 45 days. The loss of local land use control over marijuana cultivation would result in a current and immediate threat to the public health, safety, and welfare. T. Government Code sections 36937 and 65858 authorize the adoption of an interim urgency ordinance to protect the public health, safety, and welfare, and to 262 Ordinance No. Page 5 prohibit land uses that may conflict with land use regulations that a city’s legislative bodies are considering, studying, or intending to study within a reasonable time. U. Failure to adopt this moratorium could impair the orderly and effective implementation of contemplated amendments to the Municipal Code. V. The City Council further finds that this moratorium is a matter of local and City-wide importance and is not directed towards any particular person or entity that seeks to cultivate marijuana in Cupertino. W. The proposed Ordinance conforms with the latest adopted general plan for the City in that a prohibition against medical and non-medical marijuana cultivation facilities, medical and non-medical marijuana dispensaries, commercial cannabis activities, and medical and non-medical marijuana delivery services does not conflict with any allowable uses in the land use element and does not conflict with any policies or programs in any other element of the general plan. X. The proposed Ordinance will protect the public health, safety, and welfare and promote the orderly development of the City in that prohibiting marijuana cultivation facilities, non-medical marijuana dispensaries, commercial cannabis activities, and non-medical marijuana delivery services will protect the City from the adverse impacts and negative secondary effects connected with these activities. Y. The proposed Ordinance is consistent with Municipal Code Title 19, which currently bans marijuana cultivation facilities, non-medical marijuana dispensaries, commercial cannabis activities, and non-medical marijuana delivery services under principles of permissive zoning. SECTION 3. Imposition of Temporary Moratorium. In accordance with the authority granted the City under Government Code sections 36937(b) and 65858 (a), (b), and pursuant to the findings stated herein, the City Council hereby finds that: (1) the foregoing findings are true and correct; and (2) there exists a current and immediate threat to the public health, safety, and welfare from unregulated marijuana businesses, especially marijuana cultivation facilities, operating in Cupertino; and (3) this Ordinance is necessary for the immediate preservation of the public peace, health, and safety as set forth herein; and (4) hereby declares and imposes a temporary moratorium for the immediate preservation of the public health, safety and welfare as set forth below: 263 Ordinance No. Page 6 A. Prohibitions. The restrictions on medical marijuana dispensaries, marijuana cultivation facilities, and commercial cannabis activities in Section 19.98.020, and other references to “marijuana” or “medical marijuana” throughout this Code shall apply equally to nonmedical marijuana, other than as provided in subdivisions (B), (C), and (D) below. B. Cultivation of nonmedical marijuana for personal use. If cultivation for non- medical marijuana for personal use is decriminalized under state law, such cultivation is prohibited in all zones in the City to the fullest extent permitted by law. Outdoor cultivation of any amount of nonmedical marijuana for personal use is prohibited in all zones, and indoor cultivation of nonmedical marijuana for personal use is prohibited in all zones in the City unless conducted in full compliance with state law. C. Transportation of non-medical marijuana for personal use. If transportation of non-medical marijuana for personal use without compensation is decriminalized under state law, such transportation to a destination within the City is prohibited unless conducted in full compliance with state law. D. Delivery of non-medical marijuana for personal use. If delivery of non- medical marijuana for personal use without compensation is decriminalized under state law, such delivery to a destination within the City is prohibited unless conducted in full compliance with state law. E. In addition to all other enforcement or legal remedies available to the City, any use or condition caused or permitted to exist in violation of any of the provisions of this Ordinance shall be and is hereby declared a public nuisance and may be abated by the City. SECTION 4. Effective Date and Duration. Pursuant to Government Code section 65858(a), (b), this Ordinance shall take effect immediately but shall be of no further force and effect 45 days from its date of adoption unless the City Council, after notice and public hearing as provided under Government Code section 65858(a), (b) and adoption of the findings required by Government Code section 65858(c), subsequently extends this Ordinance. SECTION 5. Report of Interim Moratorium. Pursuant to Government Code section 65858(d), 10 days prior to the expiration or any extension of this Interim Ordinance, the 264 Ordinance No. Page 7 City Council will issue a written report describing the measures taken to alleviate the conditions which led to the adoption of this Interim Ordinance. SECTION 6. Severability. The City Council hereby declares every section, paragraph, sentence, cause and phrase is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses or phrases. SECTION 7: Publication. The City Clerk is directed to cause this ordinance to be published in the manner required by law. THE FOREGOING URGENCY ORDINANCE was introduced and adopted at a regular meeting of the City Council of the City of Cupertino the 18th day of October, 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: _________________________ ___________________________________ Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 265 A Practical Guide for Law Enforcement COLORADO'S LEGALIZATION OF MARIJUANA AND THE IMPACT ON PUBLIC SAFETY: 266 COLORADO’S LEGALIZATION OF MARIJUANA AND THE IMPACT ON PUBLIC SAFETY: A Practical Guide for Law Enforcement 267 This report was prepared by the Police Foundation and the Colorado Association of Chiefs of Police. The opinions and findings in this document are those of the authors and do not necessarily represent the official position or policies of the Colorado Association of Chiefs of Police, the law enforcement agencies named in the report, or the State of Colorado. Any products, services or companies mentioned in this report are used for illustrative purposes only and are not endorsed by the Police Foundation or the Colorado Association of Chiefs of Police. Websites and sources referenced in this publication provided useful information at the time of this writing. The authors do not necessarily endorse the information of the sponsoring organizations or other materials from these sources. Police Foundation 1201 Connecticut Avenue, N.W. Washington, D.C., 20036 www.policefoundation.org Twitter: @policefound info@policefoundation.org (202) 833-1460 (202) 659-9149 (fax) The Colorado Association of Chiefs of Police Greenwood Village Police Department 6060 South Quebec Street Greenwood Village, Colorado 80111 Email: CACPleadership@gmail.com © 2015 by the Police Foundation All rights, including transfer into other languages, reserved under the Universal Copyright Convention, the Berne Convention for Protection of Literary and Artistic Works, and the International and Pan American Copyright Conventions. 268 Table of Contents Foreword ....................................................................................................................i Letter From President Jim Bueermann, Police Foundation ..........................i Letter From Chief Marc Vasquez, Erie Police Department .........................iii Acknowledgements ..............................................................................................iv Introduction .............................................................................................................1 Methodology .......................................................................................................2 Participants .........................................................................................................2 Procedures ..........................................................................................................3 I. Overview Of Colorado’s Marijuana Legislation ............................................4 II. Measuring Legalized Marijuana’s Impact On Investigations, ...................9 Crime, And Disorder III. Impact Of Legalization Of Marijuana On Law Enforcement Practices .....13 IV. Illegal Marijuana: Black And Gray Markets ..............................................17 V. Increased Public Health and Safety Impacts ..............................................22 VI. Marijuana’s Effect On Youth – Issues For Public Education ...................29 And Future Law Enforcement Challenges VII. VII. Field Tests Are A Challenge To Measure Driving .............................31 Under the Influence of Marijuana Conclusion .............................................................................................................33 Endnotes .................................................................................................................34 Appendices: 1. Colorado’s Legislative History- Regarding The Legalization ....................38 Of Marijuana 2. Glossary Of Terms ........................................................................................62 3. Colorado Association Of Chiefs Of Police Marijuana Position Paper ....66 4. Federal Guidance Memos On State Marijuana Legalization Laws ......70 269 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcementi Letter From President Jim Bueermann, Police Foundation Dear Colleagues, This past spring, I was contacted by Chief Marc Vasquez of the Erie Police Department in Colorado to discuss the issues and challenges that Colorado law enforcement was experiencing as the state underwent the task of implementing the recent laws legalizing marijuana. In January 2014, after 14 years with legal medical marijuana use, Colorado became the first state to allow those over the age of 21 to grow and use recreational marijuana. State and law enforcement officials feared that this would lead to a huge increase in criminal behavior. Others predicted that the elimination of arrests for marijuana would bring a huge savings for police and the justice system. To date, these predictions have not been borne out. It is early to tell what effect legalized marijuana will have on crime and public safety overall. Nonetheless, Colorado law enforcement officials have observed some concerning trends in drug use, most notably with youth and young adults. Law enforcement officials also say they are spending increased amounts of time and funds on the challenges of enforcing the new laws surrounding legal marijuana. Both nationally and in Colorado, there is almost no significant research or data collection to determine the impact of legalized marijuana on public safety. We at the Police Foundation believe Colorado’s experience and subsequent knowledge as they implement legalized marijuana will be beneficial to share with law enforcement officials and policy makers across the nation. Understanding that there are lessons to be learned and shared with the larger law enforcement community, the Police Foundation partnered with the Colorado Association of Chiefs of Police in publishing this guide - “Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement.” Eighteen years ago, California became the first state to approve legalized medical marijuana. Since that time 22 other states have approved medical marijuana measures – nearly half of the nation. Four states and the District of Columbia have approved the legalization of recreational marijuana use. We are moving rapidly to a new era in how we manage marijuana sales and the larger industry growing underfoot, and we hope this guidebook can illustrate the challenges for local law enforcement and help those about to engage in this type of policy to learn from Colorado. Law enforcement is charged with ensuring public safety while enforcing the new regulations, which includes both the limitations and definitions under a new law. This guide is not a discussion on whether marijuana should be legalized, but rather a review of the challenges presented to Colorado law enforcement in the wake of legalized marijuana. 270 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ii Colorado law enforcement has been tasked to balance critical issues such as opposing state and federal marijuana laws; illegal trafficking of Colorado marijuana across state lines; ensuring public safety of growing operations and extraction businesses in residential areas; to name a few. Resolving the issues resulting from legalized marijuana may benefit from a community policing approach – including partners from the medical, health, criminal justice, city and county government, and other marijuana stakeholders. The collective wisdom of these partnerships can potentially provide a consensus on policies and practices for ensuring safety. The Police Foundation intends that this guide will assist not only Colorado police and sheriffs, but will contribute to the growing dialogue as law enforcement officials, state and local policy makers across the nation consider legalizing marijuana in their states and localities. Sincerely, Jim Bueermann President 271 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcementiii Letter From Chief Marc Vasquez, Erie Police Department Dear Colleagues, Colorado’s journey down the path of legalized marijuana took many of us in law enforcement by surprise – we simply did not think that it would ever happen here. Our understanding of the complex issues around marijuana legalization changes almost weekly as we continue to advance solutions for public safety under the Colorado constitution. It does not matter if we are for or against marijuana legalization. As law enforcement professionals, we must be prepared to tackle the implementation of public policies as we are faced with marijuana legalization nationally. Legalized marijuana brings new challenges. Increased use of marijuana by both adults and youth will occur in communities where marijuana is legalized. With increased use, we can expect to see more driving under the influence of marijuana cases and an increased number of accidental overdoses from highly potent THC concentrates. We anticipate increased diversion of marijuana to juveniles and states that currently prohibit marijuana. One of our greatest challenges is educating our communities, policy-makers and elected officials as to the risks of adding marijuana to already legal substances, such as alcohol and tobacco. Our ability to collect and analyze data regarding the impact of marijuana legalization remains a challenge. Another challenge is the conflict between state and federal law. As peace officers, we have pledged to uphold both the Colorado and United State’s constitutions, which conflict regarding marijuana laws. Like you, I am a strong community-policing advocate. Using the community policing model, I believe that we need to partner and problem-solve with our communities around the issues of marijuana legalization. Working with stakeholders who have an interest in marijuana legalization, either pro or con, provides the best opportunity to develop public policies that will be fair and effective for our communities. What works in Colorado may not work in your community so solutions to this complex issue must be crafted for your community. This technical assistance guide will be updated as our understanding of the complex issues around marijuana legalization continues to evolve. For any police chief or sheriff who may be facing marijuana legalization in your state, I hope this guide provides at least a starting point for you. Feel free to contact the Colorado Association of Chiefs of Police (http://www. colochiefs.org) or the Police Foundation in Washington D.C. (http://www.policefoundation. org) if we can be of any assistance. It is an honor to be involved in the development of this technical assistance guide on marijuana legalization published by the Police Foundation. Sincerely, Marc Vasquez, Chief Erie Police Department Erie, Colorado 272 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement iv ACKNOWLEDGEMENTS This report was made possible by the support and assistance of the Colorado Association of Chiefs of Police and the president, Chief John Jackson of the Greenwood Village Police Department. We are indebted to Chief Marc Vasquez of the Erie Police Department, who is the Marijuana Issues Committee Chair for the Colorado Association of Chiefs of Police and formerly the Chief of Investigations for the Medical Marijuana Enforcement Division for the Colorado Department of Revenue. Chief Vasquez’s contributions and leadership were invaluable. The Police Foundation would like to express gratitude for the willingness of those who participated in the Colorado law enforcement focus groups and provided incredible insight into the on-the-ground challenges and trends for police and sheriffs managing the legalization issues. Additionally, Police Foundation staff would like to recognize the following individuals. Without their support, cooperation and expertise, this report could not have been completed: Breckenridge (CO) Police Department: Caitlin Kontak, Detective. Canon City (CO) Police Department: Paul Schultz, Chief of Police. City and County of Denver, City Attorney’s Office: Marley Bordovsky, Assistant City Attorney, Department of Law, Prosecution and Code Enforcement. Colorado Department of Criminal Justice: Jeanne Smith, Director. Colorado Department of Revenue, Marijuana Enforcement Division: Jim Burack, Chief of Investigations, Lewis Koski, Director, and Julie Postlethwait, Communication Specialist. Colorado Department of Health and Environment: Steve R. Gonzales, CFE, Security Officer/ Fraud Protection, Health Statistics and Vital Records Division. Colorado Drug Investigator’s Association: Jim Gerhardt, Vice President. Colorado Springs (CO) Police Department: Vince Niski, Deputy Chief of Police and Dave Pratt, School Resource Officer. Colorado Office of State Planning and Budgeting: Alice Wheet, Budget Analyst. Denver (CO) Police Department: David Quiñones, Deputy Chief, Mark Fleecs, Commander, Investigative Support Division, James Henning, Lieutenant, Vice/Drug Bureau, and Daniel Kayser, Crime Analyst, Vice and Drug Unit. Golden (CO) Police Department: Bill K. Kilpatrick, Chief of Police. Government Administration Consultant: Paul Schmidt, Medical Records Management Consultant. Jensen Public Affairs: Annemarie Jensen, CEO. Lakewood (CO) Police Department: Kevin Paletta, Chief of Police; Mike Maestas, Sergeant, West Metro Drug Task Force. 273 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcementv ACKNOWLEDGEMENTS Larimer County (CO) Sheriff’s Office: Justin Smith, Sheriff and Josh Sheldon, Investigator. Law Office of Chris Halsor & Understanding Legal Marijuana, LLC: Chris Halsor, Attorney National Narcotics Officers Association Coalition: Ernie Martinez, Director At-Large. Office of the Attorney General and the Colorado Department of Law: John W. Suthers, Attorney General; Matthew Durkin, Deputy Attorney General; Julie Selsberg, First Assistant Attorney General; Michael Song, Assistant Attorney General. Rocky Mountain High Intensity Drug Trafficking Area: Tom Gorman, Director, and Kevin Wong, Intelligence Analyst. University of Colorado Hospital Center for Dependency, Addiction, and Rehabilitation: Ben Cort, Business Development Manager and Community Liaison. Westminster (CO) Police Department: Ray Padilla, Detective. Wheat Ridge (CO) Police Department: Daniel Brennan, Chief of Police. The development of this guide and creation of this report were led by the Police Foundation’s Senior Policy Analyst Mora L. Fielder, Creative Communications Manager Mary DeStefano, Project Associate Mary Sigler, and Communications Manager Jim Specht. Also involved were Vice President Blake Norton and President James Bueermann. 274 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement vi ABOUT THE COLORADO ASSOCIATION OF CHIEFS OF POLICE The Colorado Association of Chiefs of Police (CACP) is a professional organization committed to excellence in delivering quality service to our membership, the law enforcement community, and the citizens of Colorado. Through our leadership, we will provide education and training and promote the highest ethical standards. We are personally and professionally dedicated to preserving basic family values, which are essential for achieving a high quality of life. ABOUT THE POLICE FOUNDATION The mission of the Police Foundation is “Advancing Policing Through Innovation & Science.” The Foundation is a national non-profit bipartisan organization that, consistent with its commitment to improve policing, has been on the cutting edge of police innovation for over 40 years. The professional staff at the Police Foundation works closely with law enforcement, judges, prosecutors, defense attorneys, and community- based organizations to develop research, comprehensive reports, policy briefs, model policies, and innovative programs that will support strong community-police partnerships. The Police Foundation conducts innovative research and provides on-the- ground technical assistance to police and sheriffs, as well as engaging practitioners from multiple systems (corrections, mental health, housing, etc.), and local, state, and federal jurisdictions on topics related to police research, policy, and practice. The Police Foundation also manages the National Law Enforcement Officer Near Miss Reporting System found at www.LEOnearmiss.org, and a site dedicated to learning from critical incidents found at www.incidentreviews.org 275 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement1 When voters made Colorado the first state in the nation to legalize recreational marijuana in 2012, law enforcement was presented with a new challenge: understanding and enforcing new laws that aim to regulate marijuana use, rather than enforcing laws that deem marijuana use to be illegal. Supporters of the new law claimed this would make things easier for police and save at least $12 million1 in taxpayer dollars on reduced law enforcement costs. Agencies across the state argue that has not been the case2. The legislation to enact the new laws has been vague, and consequently difficult to enforce. Unforeseen problems have arisen, ranging from how to determine when a driver is legally under the influence of marijuana to how to deal with legal drug refining operations in residential neighborhoods. Some Colorado law enforcement agencies have at least one full-time officer dedicated to marijuana regulation and enforcement, but most agencies do not have this option and are struggling to deal with the additional workload brought by legalized marijuana. Many law enforcement leaders are frustrated by the conflict between enforcing the new law and upholding federal statutes that continue to view marijuana use as illegal. The neighboring states of Nebraska and Oklahoma have filed suit in the U.S. Supreme Court3 to overturn Colorado’s Constitutional amendment legalizing recreational marijuana, claiming that they have been flooded with illegal marijuana from Colorado. Additionally, school resource officers and other law enforcement leaders interviewed by the Police Foundation said they worry that illicit drug use by young people is on the rise because of easy access to marijuana through a continuing black market and a “gray market” of semi-legal marijuana sold through unauthorized channels. The Police Foundation and Colorado Association of Chiefs of Police have developed this guide to illustrate the challenges for law enforcement in Colorado. This guide will introduce some of the solutions that have been put into effect and outline problems that still need to be addressed. The Colorado Association of Chiefs of Police and almost every law enforcement leader in the state opposed the passage of Amendment 64, which legalized the recreational use of marijuana. Many chiefs still express strong opposition and some want to work to repeal the law because they believe it will lead to more crime and possible increased drug addiction, especially for the youth population. However, this guide is not intended to address the complex political elements of marijuana legalization. It is designed to summarize the numerous challenges faced by law enforcement when enforcing the laws surrounding legalization, to document solutions that have been proposed and put into effect, and outline problems that still need to be addressed. INTRODUCTION 276 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 2 Colorado is only a year into the legalization of recreational marijuana and Colorado law enforcement agencies have already faced many challenges in enforcement and management of the legalization process, which lawmakers did not anticipate. Law enforcement will continue to address circumstances as they arise, and the Police Foundation and the Colorado Association of Chiefs of Police will continue to partner in relaying information on policies, procedures, and best practices in addressing crime and disorder related to legalized marijuana to law enforcement agencies nationwide. METHODOLOGY The purpose of this review was to identify Colorado’s public safety challenges, solutions, and unresolved issues with legalized medical marijuana and recreational marijuana. Very little hard data has been gathered on the effects of recreational marijuana sales in Colorado. There has been little rigorous, evidence-based research to draw any conclusions regarding the impact of legalized marijuana on law enforcement. Information gathered from interviews and focus groups with law enforcement officers and subject matter experts as well as official documents and news stories are presented in this guide to help all law enforcement who are facing the challenges of legalized marijuana. PARTICIPANTS The Police Foundation convened two focus groups to obtain the thoughts and opinions of Colorado law enforcement executives, detectives, and officers on enforcing the marijuana laws. Participants were selected based on their experience and knowledge of marijuana legalization, as well as agency location and size, to get a broad representation. One focus group had nine participants, with six police chiefs, one sheriff, and three officers representing large, mid-size, and small agencies, along the Front Range and in the Rocky Mountains. The chiefs of police and sheriff have been in policing from 23-40 years and the officers have been in policing 15 years or more. The second focus group session included six officers, detectives, and marijuana regulatory officers. These officers and detectives serve in the capacity of monitoring marijuana regulations in their community and investigating violations of the marijuana laws. Their tour of duty was anywhere from approximately five to 25 years. These officers represented Front Range agencies from large, mid-size, and small agencies, as well as the mountain towns and ski resorts. In addition to the focus groups, the Police Foundation conducted 23 individual interviews with Colorado law enforcement leaders and officers. A snowball sample was used to obtain names of subject matter experts. Whenever possible, the focus groups and interviews have been supplemented by official documents illustrating legislation, court decisions, and law enforcement studies. Hundreds of media articles were surveyed to gain background on the issue, and some are used to illustrate points or historical background. 277 PROCEDURES Focus group participants were asked a series of questions on Amendment 20 (legalizing medical marijuana) and Amendment 64 (legalizing recreational marijuana) to determine how they worked with the community and municipal/county government to identify and address public safety concerns regarding: (1) crime and disorder, (2) youth related issues, (3) successful approaches to addressing crime or community issues, and (4) unanticipated consequences challenging public safety resources, strategies, policies, or procedures. Interviews were recorded whenever possible with the permission of the interviewee and then transcribed. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement3 278 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 4 I. OVERVIEW OF COLORADO’S MARIJUANA LEGISLATION The passage of Amendment 20 in November 2000 made Colorado the fifth state to legalize the medical use of marijuana. Twelve years later the state became one of the first two (along with Washington) to legalize recreational marijuana when Amendment 64 passed in November 2012. Because Colorado’s law took effect immediately and Washington’s was delayed until supporting legislation was passed, Colorado is considered the first state to have legal recreational marijuana. The amendments conflict with the federal Controlled Substance Act of 1970, which classifies marijuana as a Schedule I controlled substance and states that it is illegal to sell, use or transport marijuana across state lines. Federal officials eventually granted some leeway to the states that have legalized marijuana, but the conflicts between state and federal law remain a significant challenge for law enforcement. Amendment 20, The Medical Use of Marijuana Act, passed in 2000 with 53.3 percent of the voters approving the use of marijuana for debilitating medical conditions. Under the act, individuals requesting medical marijuana for conditions such as cancer, glaucoma, cachexia, severe nausea, seizures, multiple sclerosis and chronic pain associated with a debilitating or medical condition, may register with the Colorado Department of Public Health and Environment (CDPHE) and obtain a registered medical marijuana patient card. Patients may also obtain a physician’s evaluation and official recommendation for the number of medical marijuana plants they are allowed to grow. The law allows individual patients the right to possess two ounces of marijuana and six marijuana plants – and they can have more upon a physician’s recommendation. Physicians can recommend any amount they deem necessary for the patient’s anticipated treatment. Patients can grow the marijuana themselves or designate a caregiver to cultivate the plants and distribute the yield. A caregiver could have up to five patients and theoretically cultivate plants for each of them; the law also requires the caregiver to register with the CDPHE. The implementation of Amendment 20 was uneventful for the first five years; however, three significant events occurred between 2005 and 2010, which changed the medical marijuana industry. (See Appendix 1 for a detailed history of Colorado’s marijuana laws). From 2001 to 2008, there were a total of 4,819 approved patient licenses. In 2009, there were 41,039 approved medical marijuana registrations from CDPHE. Source: CDPHE The number of marijuana dispensaries went from zero in 2008 to 900 by mid-2010. Source: Department of Revenue, Marijuana Enforcement Division 279 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement5 UÊÓääx\Ê i˜ÛiÀÊۜÌiÀÃÊ>««ÀœÛi`Ê̅iÊ`iVÀˆ“ˆ˜>ˆâ>̈œ˜ÊœvÊ«œÃÃiÃȜ˜ÊœvÊÓ>Ê>“œÕ˜ÌÃʜvÊ marijuana for recreational use. Voters in the town of Breckenridge approved a similar measure in 2009. UÊÓää™\Ê i˜ÛiÀÊ ˆÃÌÀˆVÌÊ œÕÀÌÊÕ`}iÊ >ÛiÃÊ̅ÀiÜʜÕÌÊ * ½ÃÊ`iw˜ˆÌˆœ˜ÊvœÀÊV>Ài}ˆÛiÀÃÊ and instructed CDPHE to hold an open meeting and revise the caregiver language.4 The department was unable to set a new definition, and so there was no regulatory language on how many medical marijuana patients a caregiver could supply until the General Assembly created new laws the following year. UÊÓää™\Ê/…iÊ1°-°Ê i«>À̓i˜ÌʜvÊÕÃ̈ViÊÀii>Ãi`Ê̅iʺ"}`i˜Êi“œ]»Ê«ÀœÛˆ`ˆ˜}Ê}Ո`- ance and clarification to the U.S. Attorneys in states with enacted medical marijua- na laws. Deputy Attorney General David W. Ogden stated, among other things, the federal government would not prosecute anyone operating in clear and unambiguous compliance with the states’ marijuana laws.5 The Growth of Medical Marijuana Centers When CDPHE’s caregiver definition was overturned in court in 2009, there was no limit on the number of patients caregivers could serve. At the same time, there was a boom in the number of medical marijuana patients registering with CDPHE. Some medical marijuana proponents decided to test the boundaries of the caregiver model after the definition was thrown out. This resulted in a proliferation of medical marijuana centers throughout the state. These centers grew large quantities of marijuana plants because they could claim to be the “caregivers” for any registered medical marijuana patient. This was one of the first major unanticipated problems for law enforcement, according to members of the Police Foundation focus groups. Since there were no statutes or regulations, the medical marijuana centers had no restrictions on the number of patients to whom they could provide marijuana. This also led to patients “shopping” their doctor’s recommendation to as many medical marijuana centers as they wanted and as often as they wanted, focus group members said. As long as the patient had a “red card” and an authorized doctor’s recommendation, then that patient could go to countless medical marijuana centers as long as the patient only carried two ounces or less out of each one. Because so many medical marijuana centers opened so quickly, state and local officials found it difficult to regulate them. The General Assembly did not craft regulations until 2010 to govern licensing fees, inventory tracking requirements, production of marijuana infused products, packaging and labeling requirements, and disposal of waste water from the processing of medical marijuana. 280 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 6 Figure 1: Tipping Point for Opening Medical Marijuana Centers Source: Adapted from Chief Marc Vasquez From June 1, 2001, to December 31, 2008, a total of 5,993 patients applied for a medical marijuana registration card (also known as a red card due to its color). Of those applicants, 4,819 were approved. After the opening of the medical marijuana centers, by December 31, 2009, there were 43,769 applications of which 41,039 were approved. This is an increase of 751.61% in approved registrations in just one year’s time. As of December 1, 2014, there were 116,287 medical marijuana patients registered with the state. The Colorado legislature responded to these developments by passing legislation in the 2010 and 2011 sessions that created the Colorado Medical Marijuana Code. The primary bills creating the Code were HB 10-1284, SB 10-109 and HB 11-1043. They legalized medical marijuana centers and created a range of marijuana business-related regulations. Other parts of the code limited caregivers to provide for just five patients (although more could be approved under a waiver), and created a new regulatory body: the Medical Marijuana Enforcement Division under the state Department of Revenue. In addition to marijuana plants, the code allowed for “infused products” to be made and sold to patients. 281 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement7 The code requires centers to cultivate at least 70 percent of the marijuana they sell. The law created a “seed-to-sale” inventory tracking system which tracks all marijuana plants from cultivation to sale to the customer. The legislation allows local jurisdictions to set their own rules on whether to allow marijuana businesses to operate in their municipality or county, hours of operation and other rules – as long as the rules were stricter than state law. Of the state’s 64 counties, 22 agreed to allow new marijuana businesses in their jurisdictions, while 37 banned them outright. Others grandfathered in existing operators, and still others set further limits on the businesses. The update to the code that passed in 2011 - HB 11-1043 - set stricter requirements on doctors providing recommendations for medical marijuana and provided for licensing of businesses manufacturing infused products. In 2012 with the passage of Amendment 64, Colorado voters approved the recreational use of marijuana. The new law allows anyone 21 years of age or older to possess one ounce of marijuana or to grow six plants for personal use. It is illegal to provide recreational marijuana to anyone under the age of 21. Amendment 64 prohibits the consumption of marijuana in public or open places and defines driving under the influence. Regulations were also established on infused products – edibles that include marijuana oil – that could now be sold for recreational use. The amendment provided provisions for local governing bodies (i.e., City Council or County Commission) to determine whether to permit recreational marijuana stores, marijuana infused product businesses, or cultivations in their area, similar to provisions for medical marijuana providers. If approved locally, medical marijuana centers were allowed to sell recreational quantities. The amendment requires, among other things, operators of marijuana cultivation and sales facilities to undergo a criminal background check. Anyone with a felony conviction is barred from operating a cultivation and sales facility or working in the industry. Both medical marijuana and recreational marijuana is subject to the state’s 2.9 percent sales tax, and recreational sales are also subject to a 10 percent excise tax. Local taxes may be added as well – in Denver, recreational marijuana is subject to a total 21.12 percent tax. The Colorado legislature passed a series of bills (SB 13-283 and HB 13-1317) to implement the recreational marijuana provisions of Amendment 64. They limited non-Colorado residents to purchasing only one quarter of an ounce of marijuana after neighboring states expressed fears that marijuana “tourists” would transport large quantities home to sell illegally. This history of overlapping medical and recreational marijuana laws has left law enforcement in Colorado with the challenge of both interpreting and enforcing the laws. 282 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 8 The Four Models for Regulating Medical and Recreational Marijuana As a result of the passage of Amendments 20 and 64, four types of marijuana regulation and oversight models emerged – caregiver/patient, medical commercial, recreational home-grown and recreational commercial (see Figure 2). Having different models and regulatory agencies providing oversight has created challenges. The first model began with the passage of Amendment 20: the caregiver/patient model for medical marijuana. With the proliferation of medical marijuana centers the second model, medical commercial, was established for licensing and regulating the medical marijuana industry. When Amendment 64 was passed, the recreational models were established. The Marijuana Enforcement Division regulates the Medical and Recreational Commercial models, and systems are in place for monitoring the commercial industry. The regulation by local law enforcement of the caregiver/patient and the recreational home-grown models is more challenging. Local law enforcement agencies are not authorized to perform home checks. They are bound by the law and cannot investigate a home grow unless a complaint has been filed. Even then, the officer must have probable cause to believe a crime is being committed by residents of the home or the resident would have to consent to allow the officers into the home. Thus, officers could conduct “knock & talks” at a caregiver location, but they would need to establish probable cause to execute a criminal search if they believe crimes are being committed. Some municipalities are enacting ordinances that prohibit noxious odors and the number of plants allowed to grow, and local law enforcement can use those ordinances to address neighborhood complaints.6 Figure 2 : Four Models Created through Amendments 20 and 64 Source: Adapted from Chief Marc Vasquez 7 Medical Commercial – Licensing for Businesses, Owners and Employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Caregiver/Patient – Caregivers who can grow for up to 5 patients and themselves – Routinely see large grows – Patients are licensed by Colorado Department of Public Health and Environment – Caregiver Regulatory authority: Colorado Department of Public Health and Environment and local law enforcement Recreational Commercial – Licensing for Businesses, Owners and Employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Recreational Home Grows – Anyone 21 years of age or older can grow up to 6 plants. Law enforce-ment is seeing “Co-op” cultivations where a number of adults over 21 grow their marijuana at one location. This scenario is challenging for law enforcement because officers are uncertain which area of Amendment 20 or 64 may apply to the cultivation. – No licensing required – Regulatory authority: local law enforcement 283 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement9 II. MEASURING LEGALIZED MARIJUANA’S IMPACT ON INVESTIGATIONS, CRIME, AND DISORDER The legalization of marijuana in Colorado has created numerous challenges for law enforcement in conducting investigations, establishing probable cause, determining search and seizure procedures, and addressing public safety concerns with home growing operations. In order to best assess the impact that the legalization of marijuana has had on crime, data must be gathered. Colorado authorities did not establish a data collection system when they began addressing the enforcement of the new laws; thus, law enforcement leaders who participated in the Police Foundation focus groups have urged that departments in other states facing laws on legalization move quickly to establish data collection systems and processes in preparation for the new challenges they will face. Law enforcement leaders in focus groups convened by the Police Foundation warned that until there is a statewide data collection system, it will not be possible to fully understand the impact of legalized marijuana and related crime in the state of Colorado; however, they believe crime is increasing. Efforts are currently underway at the Colorado Department of Criminal Justice to develop statewide data collection systems. Given the time needed to create a statewide data system, it may be years before Colorado law enforcement can fully analyze the impacts of legalized marijuana. In the meantime, local law enforcement and other related regulatory agencies and service providers are collecting data at the local level to understand the impact of marijuana-related crime. Collecting and analyzing this data is a challenge for smaller agencies including the majority of mountain towns, which are impacted by high volumes of out-of-state visitors. Colorado law enforcement leaders in the Police Foundation focus groups have urged that departments in other states facing laws on legalization move quickly to establish data collection regarding the new challenges they face. The Denver Police Department (DPD) has been one of the most active agencies in collecting data since legalization. Examining Denver’s data provides some insight into the complexity of marijuana data collection at the local level. “The absence and lack of data is absolutely a killer to demonstrate whether there is going to be adverse consequences of marijuana on your community or not. So what every law enforcement agency in the country should do right now, today, is start collecting data, not just on marijuana but on all controlled substances to establish a baseline. Colorado has missed their opportunity to collect baseline data, but other states could be establishing their baselines now.” – Sgt. Jim Gerhardt 284 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 10 Figure 3: Denver and State Comparisons for Marijuana Medical and Retail stores, Marijuana Cultivations, Marijuana Infused Product Producers and THC Inspection Laboratories Source: City of Denver data from Denver (CO) Police Department; state data from State of Colorado, Department of Revenue. The Denver Police Department collects marijuana crime data specifically for industry- related crimes (defined as offenses directly related to licensed marijuana facilities) and non-industry crimes (defined as marijuana taken during the commission of a crime that did not involve a licensed marijuana facility). Data from 2012 through September 2014 shows burglary as the most prevalent industry-related crime. Burglaries at licensed marijuana facilities are much higher than other retail outlets like liquor stores. Burglaries occurred at 13 percent of Denver’s licensed marijuana facilities in 2012 and 2013, compared with just 2 percent of liquor stores, according to Denver Police Department crime analyst, D. Kayser. KEY ISSUES Marijuana-Industry Related Homelessness Brings Challenges for Law Enforcement, Social Agencies Denver officials say they are facing one unexpected result of legalization – a significant influx of homeless adults and juveniles are coming to Denver due to the availability of marijuana.8 Although homelessness has been a persistent problem in Denver, police have seen an increase in the number of 18 to 26 year olds seeking homeless shelters because Denver Licensed Medical Centers = 198 Marijuana Infused Product-Making Facilities = 78 Cultivations = 376 Statewide Licensed Medical Centers = 501 Marijuana Infused Product-Making Facilities = 158 Cultivations = 739 Denver Licensed Retail Stores = 126 Marijuana Infused Product-Making Facilities = 44 Cultivations = 190 Labs Checking for THC Levels = 9 Statewide Licensed Retail Stores = 306 Marijuana Infused Product-Making Facilities = 92 Cultivations = 375 Labs Checking for THC Levels = 15 285 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement11 they are hoping to find work in the cannabis industry. However, many have felony backgrounds and are ineligible to obtain work in the limited jobs in the industry. The St. Francis Center, a daytime homeless shelter, reported that “marijuana is the second most frequent volunteered reason for being in Colorado, after looking for work.”9 The issue of homelessness has spread to suburban neighborhoods because of the location of growing operations, police said. The Golden City Council voted in June 201410 to ban recreational marijuana sales and restricted medical marijuana operations to manufacturing areas.11 The council voted to only allow indoor marijuana cultivation. Any cultivation operation that attracts a high volume of foot or vehicular traffic can be shut down. Marijuana businesses are keeping too much cash on hand because of federal banking restrictions, creating targets for burglaries and robberies The U.S. Department of Justice and the U.S. Treasury Department’s Financial Crimes Enforcement Network have issued guidelines12 allowing banks to work with marijuana businesses that are in compliance with new state legalization laws. Even with the new Treasury guidelines, bank officials continue to be reluctant to do business with growers as they fear that they will still be subject to investigation13 for accepting cash that drug- sniffing dogs can target as smelling of marijuana, according to news reports. Given that marijuana remains a Schedule I controlled substance under federal law, banks fear they could be prosecuted under money laundering laws for accepting funds from legalized businesses. To respond to the business need for financing, Colorado state regulators have approved the development of a credit union14 to serve the industry, according to media reports. Nonetheless, most of the marijuana businesses remain cash-only, which will increase public safety risks and crime, Police Foundation focus group members said. The dichotomy of federal and state law has led companies to turn to innovative strategies to resolve the cash problem. Entrepreneurs have developed armored car services for marijuana businesses15 in which they collect the money, remove marijuana residue from the cash, and then transport the funds to the banks for deposit. Some law enforcement leaders believe this may be vulnerable to money laundering operations, while others say it is good policy. This has resulted in many business owners choosing to operate solely using cash. Focus group members said that Colorado law enforcement officials have observed that criminals http://www.click2houston.com/news/pot-draws- homeless-texans-to-colorado/28186888 286 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 12 are targeting centers, knowing they may have large sums of cash. Ac- cording to focus group members, even couriers transporting mari- juana from one location to another (e.g., transporting marijuana to an edible-infused business) are at risk and have been robbed. A cash-only business also poses a challenge on the investigations side of enforcement. Criminal investigations can be hampered when there is no paper trail to determine cash flow. An all-cash business can potentially be used for money laundering activities, and it makes it more difficult to track the gray and black-market sales. POINT FOR CONSIDERATION UÊ>ÜÊi˜vœÀVi“i˜ÌʓÕÃÌÊ`iÛiœ«Ê«œˆVÞ]ÊÌÀ>ˆ˜ˆ˜}Ê>˜`Ê«À>V̈ViÃÊ̅>ÌÊÌ>Žiʈ˜ÌœÊ>VVœÕ˜ÌÊ Vœ˜yˆV̈˜}Êvi`iÀ>Ê>˜`ÊÃÌ>Ìiʏ>ÜÃʈ˜ÊÀi>̈œ˜Ê̜ʓ>ÀˆÕ>˜>ʏi}>ˆâ>̈œ˜Êˆ˜Ê œœÀ>`œ° Marijuana remains a Schedule I controlled substance under federal law. Law enforcement officials at all levels should review and follow the rules laid out in the memorandum issued by Attorney General Holder in April 2013 entitled “Guidance Regarding Marijuana Enforcement”16 to ensure that the federal guidelines are taken into account by local law enforcement. https://www.youtube.com/watch?v=2J41ZyYYFiI&feature=youtu.be> 287 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement13 III. IMPACT OF LEGALIZATION OF MARIJUANA ON LAW ENFORCEMENT PRACTICES The laws surrounding commercial, recreational, and medical marijuana have established stringent reporting requirements, but medical marijuana caregivers were “grandfathered” under much less strict rules. The lack of clarity in the laws affecting medical and recreational marijuana has created significant challenges for Colorado law enforcement to investigate potential abuses and build a case for illegal marijuana growing operations. According to HB 11-1043, a “primary caregiver” cultivating for medical marijuana patients must register the location of the cultivation operation with the Marijuana Enforcement Division and provide the registry ID for each patient. However, the law does not set a punishment for the caregiver who does not register. In addition, police cannot access patient information because of privacy laws, and so they cannot ascertain whether the “caregivers” are growing the amount specified in a doctor’s recommendation or whether the caregiver is indeed still the caregiver for a given patient. Amendment 20 – which made medical marijuana legal in the state - mandates that patients must carry a medical marijuana registry card, whereas caregivers have no cards and no punitive sanctions from law enforcement if they have not registered. Investigations and Probable Cause – How to Track Inventory Colorado’s laws established a “seed-to-sale” registry that has been praised for keeping track of every plant cultivated in the state. However, an audit by the Colorado State Auditor in 2013 found that the registry was failing in its mandate to monitor17 medical marijuana dispensaries. Investigators for the Colorado Department of Revenue, Marijuana Enforcement Division, found in 2014 that some retail outlets they visited had discrepancies between the registry and the inventory on site. When queried, retailers could not articulate the reason for the discrepancies in inventory. “From the probable cause point of view, every situation has to be looked at from the totality of the circumstances that are present. Specifically, intelligence information, calls for service, neighborhood complaints, what you see, smell and hear, and any other information that would lead you to establish reasonable suspicion and/or probable cause.” – Lieutenant Ernie Martinez, ˆÀiV̜À‡>̇>À}i]Ê >̈œ˜>Ê >ÀVœÌˆVÃÊ "vwViÀÃÊÃÜVˆ>̈œ˜Ê œ>ˆÌˆœ˜Ê 288 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 14 Members of the focus groups convened by the Police Foundation believe that the state registry officials are improving as funding increases to establish benchmarks for monitoring the supply. Law enforcement also noted that that the lack of coherent data and inventory information means that police must rely on standard investigative techniques to ascertain whether a grower or sales outlet is engaging in illegal underground activity on the side. Searches and Seizures and Prosecution Under Legalization Colorado police officials interviewed by the Police Foundation said one of the biggest concerns for law enforcement is attempting to establish probable cause for a search warrant under the conflicting laws regulating medical and recreational marijuana. “It is often difficult for law enforcement to develop probable cause because of vague language in the constitutional amendments and (that inhibits) the issuance of search warrants,” said Chief Marc Vasquez of the Erie Police Department. District attorneys have become cautious about warrants because juries have often found in favor of defendants who are medical marijuana users, said Matthew Durkin, Deputy Attorney General: “The same confusion and ambiguity in the legal landscape that hinders law enforcement, presents significant obstacles to a successful prosecution. The overly complex legal framework for marijuana not only makes developing evidence very challenging, but it also allows defendants to retroactively manipulate evidence.” Law enforcement is also caught in the middle when it comes to seizing and returning marijuana evidence because of conflicting state and federal laws. “We have changed our seizure policies several times over the past few years due to court findings,” said Deputy Chief Vince Ninski of the Colorado Springs Police Department. “We received a legal opinion from our city attorney’s office that since marijuana is still federally illegal, we would seize marijuana plants and harvested products when we believed the grower was violating state law. When a defendant was acquitted of his or her charges, the Colorado Springs P.D. was ordered to return the marijuana back to the defendant. The U.S. Attorney advises police that to return it would be in violation of federal law. Our hands are tied.” Even dealing with seized evidence has presented new challenges. Police departments confiscate marijuana plants but are challenged in securing the evidence and caring for the plants properly. Some departments have taken pictures of the plants but left the actual evidence with the person charged for operating illegally. Other agencies have confiscated the plants and let them die. In a case brought by a grower whose confiscated plants had died, the Colorado Court of Appeals upheld a ruling by District Court Judge Dave Williams that the Larimer County Sheriff’s Office did not have to pay damages to the plaintiff in part because federal law did not recognize marijuana as property subject to search and seizure rules (see case at http://www.cobar.org/opinions/opinion. cfm?opinionid=9505&courtid=1). 289 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement15 KEY ISSUE Drug-Sniffing Canines May Have To Be Retrained or Replaced Canines trained to detect marijuana introduce a conundrum for officers in conducting drug searches. Drug dogs are usually trained to alert on all drug scents; therefore, it is not clear to an officer which drug a canine has detected. If a police dog detects drugs in a car, for example, it is not clear under the new laws if the officer has probable cause for a search since the officer does not know which drug the canine is detecting. If the driver has legal amounts of marijuana in the car, the search might be deemed inadmissible even if other drugs were found. Officers have been advised to ask whether there is marijuana in the car and can continue with the search if the suspect says there is none. The practices surrounding the use of drug-detecting canines will continue to evolve, with new training necessary both for officers and possibly for the dogs themselves. POINTS FOR CONSIDERATION UÊ iÜÊÃÌ>˜`>À`Ãʘii`Ê̜ÊLiÊiÃÌ>LˆÃ…i`ÊLÞʏ>ÜÊi˜vœÀVi“i˜ÌÊ̜ÊLiÊ>LiÊ̜Ê`iÌiÀ“ˆ˜iÊÊ Ì…iÊ`ˆvviÀi˜ViÊLiÌÜii˜Ê>ʏi}>Ê>˜`Ê>˜Êˆi}>Ê“>ÀˆÕ>˜>Ê}ÀœÜˆ˜}ʜ«iÀ>̈œ˜° Law enforcement leaders, district and city attorneys and policymakers should form working groups to clarify the criteria for determining an illegal marijuana growing operation. UÊ>ÜÊi˜vœÀVi“i˜Ì]ÊܜÀŽˆ˜}Ê܈̅ÊÃÌ>ÌiʏiÛiÊi>`iÀň«]ʘii`ÃÊ̜ÊÀiۈÃiÊ>˜`ÊÕ«`>ÌiÊ Ãi>ÀV…ÊÜ>ÀÀ>˜ÌÊ«ÀœVi`ÕÀiÃÊvœÀÊVœ˜`ÕV̈˜}ÊÃi>ÀV…iÃÊ>ÃÊ̅iÞÊÀi>ÌiÊ̜Ê̅iʘi܏ÞÊÊ «>ÃÃi`ʏi}>ˆâi`ʓ>ÀˆÕ>˜>ÊÃÌ>ÌÕÌið Officers and deputies need uniform guidance on how to establish probable cause to gain a warrant to search and seize illegal marijuana operations. A “Law Officer’s Marijuana Handbook” – similar to the Colorado handbook created for liquor enforcement - should be available to inform patrol officers on policies, procedures, protection gear, and other important information regarding marijuana searches and seizures. http://www.thedenverchannel.com/news/local- news/marijuana/legalization-of-marijuana-presents- a-potential-problem-for-police-departments-using- drug-dogs 290 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 16 UÊPOINT FOR CONSIDERATION UÊÊ>ÜÊi˜vœÀVi“i˜Ìʏi>`iÀÃ]ÊVÀˆ“ˆ˜>ÊÕÃ̈ViʜvwVˆ>Ã]Ê>˜`Ê«œˆVޓ>ŽiÀÃÊŜՏ`Ê `iÌiÀ“ˆ˜iʈvÊ̅iÀiÊ>ÀiÊ>˜ÞÊÀ>“ˆwV>̈œ˜ÃÊvœÀÊÕȘ}Ê̅iÊVÕÀÀi˜ÌÊV>`ÀiʜvÊ`ÀÕ}Ê`œ}ÃÊvœÀÊ }i˜iÀ>Ê`ÀÕ}ÊÃi>ÀV…iÃ°Ê Drug-sniffing dogs in Colorado (and in other states) are currently trained to target all drugs, including marijuana. Law enforcement leaders should assess the current practice of using drug dogs in the field and determine if new training and protocols need to be adopted as a result of legalized marijuana. Newly trained drug-sniffing dogs may be required in states where marijuana has been legalized. 291 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement17 IV. ILLEGAL MARIJUANA: BLACK AND GRAY MARKETS When Colorado state regulators commissioned a look at the new legalized industry in mid- 2014, the study19 conducted by the Marijuana Policy Group for the Colorado Department of Revenue’s Marijuana Enforcement Division, entitled “Market Size and Demand for Marijuana in Colorado,” turned up some unexpected numbers: Demand for marijuana through 2014 was estimated at 130 metric tons but legal supplies could only account for 77 metric tons. The rest, according to a widely quoted Washington Post article,20 was coming through continuing illegal sales – either by criminals in a black market, or by legal cultivators selling under the table in a growing “gray” market. Colorado law enforcement officials interviewed by the Police Foundation are convinced that the black and the gray markets are thriving in Colorado primarily through unregulated grows, large quantities of marijuana stashed in homes, and by undercutting the price of legitimate marijuana sales. In fact, police have stated that legalized marijuana may have increased the illegal drug trade. Low-level drug dealers, looking to profit from access to an abundance of marijuana, have an open market to grow illegal amounts of marijuana and sell through the black market. Or they can purchase excess marijuana from caregivers growing marijuana for patients but divert their excess crop illegally – the gray market. It is difficult for Colorado law enforcement to prove when a marijuana cultivation site is producing for the gray market. Medical marijuana growers may have a license, but ensuring that all of their plants are registered can be time-consuming and difficult to accomplish without a warrant and can be costly in staff time to check hundreds of plants. Focus group members said that recreational growers may also have an easy means of growing off- market plants. A resident might grow their limit of six marijuana plants, but could conceivably grow additional plants for family members, friends, and neighbors who are all over twenty-one. With the passage of Amendment 64, there is an increasing trend toward co-op growing, which state officials have suggested has created a shortage of warehouse space21 in Denver. This practice has become popular as growers have found they can save on operating costs such as rent and utilities when they section off the warehouse for their cultivation space. The presence of multiple growers sharing one facility has created a time-consuming challenge to law enforcement agencies trying to track down illegal marijuana growers, focus group members said. The challenge of locating and shutting down illegal growers has spread to residential neighborhoods as well, law enforcement officials said. Growers have rented homes solely Colorado’s commercial marijuana is grown indoors. The operation at LivWell in Denver, at 120,000 square feet, dwarfs the competition. Credit: Lawrence Downes 292 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 18 to grow marijuana,22 according to media reports, destroying the interior of the home as every room is converted to the growing operation. Colorado law enforcement officials have also faced continuing challenges when trying to ensure that medical marijuana caregivers are not feeding the gray market, focus group members said. Caregivers are required by Amendment 20 to register their cultivation operations with the Marijuana Enforcement Division. Many do not register their operations; however, according to observations made by Colorado law enforcement officials. When police challenge the legality of the growing operation, it is difficult to file criminal charges. Media reports23 have shown that caregivers can have numerous grow locations for the same five patients, leaving excess marijuana to be diverted through the gray market. A physician verifying a patient’s medical needs for medical marijuana can recommend any number of plants for the patient. Regulators cracking down on shoddy prescribers discovered one doctor had given out thousands of medical marijuana recommendations24 without even seeing the patients. http://www.washingtonpost.com/news/storyline/ wp/2014/07/30/inside-colorados-flourishing-segregated- black-market-for-pot/ “A typical joint in the United States contains just under half a gram of marijuana, and a single intake of smoke, or “hit,” is about 1/20th of a gram. A joint of commercial-grade cannabis might get a recreational user high for up to three hours; one- third as much premium-priced sinsemilla might produce the same effect. A heavy user might use upwards of three grams of marijuana a day. The development of tolerance means that frequent users need more of the drug to get to a given level of intoxication.” Source: Jonathan P. Caulkins, Marijuana Legalization: What Everyone Needs to Know. http://www.huffingtonpost.com/2013/11/07/how-many- joints_n_4236586.html 293 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement19 Diverson of marijuana through the mail According to Rocky Mountain High Intensity Drug Trafficking Area, the number of marijuana packages mailed out-of-state has increased from zero parcels in 2009 to 207 parcels in 2013. The poundage of marijuana seized increased annually beginning with zero pounds in 2009 and then increased to 57.20 pounds in 2010, 68.20 pounds in 2011, and 262 pounds in 2012, all during the time of legalized medical marijuana. Then in 2013, when recreational marijuana became legal, the postal service seized 493.05 pounds and the top five states intercepting these marijuana parcels were Florida, Maryland, Illinois, Missouri, and Virginia. These numbers are most likely conservative since not all packages mailed are intercepted. When officers try to verify a caregiver’s quota of plants, they are often faced with growers who do not have documentation on hand, according to members of the Police Foundation focus groups. Due to privacy and confidentiality laws, officers cannot call CDPHE to verify the patient-caregiver information. Taxation may be fueling gray and black markets The state’s tax structure mainly affects recreational marijuana. Medical marijuana buyers must only pay a 2.9 percent state sales tax. In addition to the sales tax, recreational marijuana faces a 15 percent excise tax plus a 10 percent special state sales tax. The proceeds of this are divided, with 85 percent going into the state marijuana tax cash fund and 15 percent to local governments that allow retail marijuana sales. Licensed cultivation centers pay the state excise sales tax of 15 percent on the average market wholesale price of recreational marijuana. Local taxes are also applied to the retail marijuana shops. Denver’s 2014 local retail marijuana tax is 7.12 percent, plus 1 percent for the Regional Transportation District (RTD) and .1 percent for the Cultural Facilities District. When this is added to the state retail marijuana tax of 12.9 percent, a marijuana consumer would be paying 21.2 percent in taxes.25 Medical marijuana is taxed in Denver at a rate of 3.62 percent sales tax, 1 percent for RTD and .1 percent for Cultural Facilities District, which is added to the state tax of 2.9 percent.26 Police estimate that marijuana purchased on the street ranges from $160 to about $300 an ounce.27 The average price per ounce for medical marijuana is $200 per ounce and average retail marijuana is $225/ounce and an average of $320/ounce in the mountain towns.28 With taxes added in, a recreational consumer will pay a total of $242 for an ounce priced at $200 in Denver. Medical marijuana users will pay $215.24 for the same ounce. Regulators suggested this major tax burden might have caused an increase in the past year in patients seeking medical marijuana red cards, even as overall tax revenues fell short.29 294 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 20 KEY ISSUE Bordering States Feel the Effects of Colorado’s Legalization of Marijuana Colorado’s legalized marijuana laws are impacting30 neighboring Nebraska, Arizona, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. States bordering Colorado are concerned with the amount of time, resources, and expenses required in arresting and prosecuting offenders for the diversion of marijuana. In its report on the effects of legalized marijuana, the Rocky Mountain HIDTA31 noted that cartel operations and other criminals may be using the thriving black market to stage illegal shipments to other states. The states of Nebraska and Oklahoma in December 2014 filed suit in the U.S. Supreme Court,32 asking that the court find Colorado’s recreational marijuana law in violation of the U.S. Constitution. The states claim that Colorado has violated federal laws that criminalize marijuana use and sales and that it has caused significant crime and hardship for law enforcement in the two states because of criminals illegally transporting Colorado marijuana across state lines. The Federal El Paso Intelligence Center reported that law enforcement agencies across the country seized three and a half tons of Colorado marijuana destined for other states in 2012.33 That’s up more than 300 percent from 2009 when there was slightly over three-quarters of a ton of Colorado marijuana seized.34 In Kansas, there was a 61 percent increase in marijuana seizures from Colorado.35 In response to the additional law enforcement costs in bordering states, Colorado legislators introduced a bill to share surplus revenue with bordering states’ law enforcement agencies to further prevent out-of-state marijuana diversion; however, the bill died in the 2014 legislative session.36POINT FOR CONSIDERATION http://www.cbsnews.com/videos/colorados-neighbors- deal-with-marijuana-trafficking/ 295 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement21 POINTS FOR CONSIDERATION UÊ>ÜÊi˜vœÀVi“i˜ÌÊŜՏ`ÊܜÀŽÊ܈̅ʫœˆVޓ>ŽiÀÃÊ̜ÊLÀˆ˜}ÊV>ÀˆÌÞÊ>˜`ÊÌÀ>˜Ã«>Ài˜VÞÊÌœÊ Ì…iʓi`ˆV>Ê“>ÀˆÕ>˜>Ê«>̈i˜ÌÊ>˜`ÊV>Ài}ˆÛiÀʈ`i˜ÌˆwV>̈œ˜ÊÃÞÃÌi“° Current law is vague about the identification required for a medical marijuana caregiver and about the penalties for not producing the ID when requested by law enforcement. Law enforcement officials have called for registration of caregivers with pictured licensed cards, along with the necessary enforcement resources and penalties. They have also urged creation of a patient registration system that would ensure that a caregiver is growing the correct number of plants, and would stop patients from buying from more than one caregiver. Local jurisdictions should consider ordinances that require a business license for anyone growing more than six marijuana plants, which would provide law enforcement with a tool for inspecting growing operations. UʘVÀi>ÃiÊVœœ«iÀ>̈œ˜Ê܈̅ÊLœÀ`iÀˆ˜}ÊÃÌ>ÌiÃÊÀi}>À`ˆ˜}Ê̅iʈi}>ÊÌÀ>˜Ã«œÀÌ>̈œ˜ÊœvÊ œœÀ>`œÊ“>ÀˆÕ>˜>Ê>VÀœÃÃÊÃÌ>Ìiʏˆ˜ið Law enforcement agencies in neighboring states have reported arrests involving possession of marijuana that was produced in Colorado. Officials in the other states have raised alarms over their concerns of the potential for problems, and are currently attempting to track the data to identify trends. A regional working group should be established to follow up on any diversions of marijuana to other states with the aim of detecting the source of the marijuana and disrupting any further illegal transportation across state lines. 296 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 22 V. INCREASED PUBLIC HEALTH AND SAFETY IMPACTS Marijuana connoisseurs are using enhanced science and technology to breed plants for various characteristics, especially plants that produce stronger compounds. Chemical extractions pose serious public safety risks. The chemical solvents, most often butane gas, create fumes that are highly flammable and can lead to explosions and fire that are similar to the extremely dangerous methamphetamine labs that have long plagued police and firefighters. There are 483 compounds in a marijuana plant; the most well-known are tetrahydrocannabinol (THC) and cannabidiol (CBD).37 THC is known to be a mild analgesic and is therefore used for medicinal purposes. It is also known to stimulate a person’s appetite.38 THC produces psychoactive chemical compounds and when extracted it becomes a resin used in hashish, tinctures, edibles, and ointments.39 A liquid process is used to extract THC.40 Cannabinoids are not water soluble, which means the extraction businesses use a solvent to remove the resin from the plant. Chemical solvents, such as butane, hexane, isopropyl alcohol, or methanol are the most popular because higher levels of THC can be extracted and the process is much faster. Chemical extractions can obtain THC levels as high as 90 percent. KEY ISSUES Threat of Explosion and Fire A hash oil explosion not only puts the lives of people inside the home at risk, it can quickly spread to nearby homes. While meth labs tend to be located in remote areas because of their illegal nature, hash oil operations are often conducted in residential neighborhoods by homeowners using legally grown marijuana. While consumers can purchase hash oil or by-products of hash oil from a marijuana retail store, many residents attempt to make their own hash oil because it is cheaper. Commercial extractions have the necessary equipment to safely extract hash oil. Denver experienced nine hash oil explosions from January 1 to September 15, 2014. The City and County of Denver recently passed an ordinance that will restrict unlicensed hash oil extractions. One of the exceptions is that the extraction use alcohol, and not a fuel-fired or electrified source. The accepted process can use no more than 16 ounces of alcohol or ethanol for each extraction.41 297 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement23 Impact on Medical Facilities The Burn-Trauma Intensive Care Unit at the University of Colorado Hospital is the primary burn center for Colorado. They report caring for only one patient from 2010 through 2012 from hash oil extraction burns. Since then it has significantly increased to 11 patients in 2013 and to 10 patients from January through May 2014.42 Camy Boyle, associate nurse manager for CU’s burn ICU, collected data on hash oil burn patients and found that the hash oil burn patients were almost always men in their 30s, on average had severe burns over 10 percent of their bodies (primarily hands and face), and stayed in the hospital an average of nine days.43 Lack of Regulations for Edibles Related to Increased Overdoses The growing industry of injecting hash oil into candy, cookies and other “edibles” has raised concerns among health officials and police because it is unclear to most who ingest them what the potency levels are. Although there are legal limits to the total amount of THC allowed in individual edibles, the portions are not well regulated. Purchasers may not understand that eating several cookies or pieces of candy could result in toxic levels of THC. Due to the increased toxicity, medical and police professionals have seen an increase in adult psychotic episodes resulting in hospitalizations and deaths by suicide or homicide. For example, a student from Northwest College, in Wyoming, visiting Denver for vacation jumped over the railing of a hotel, falling to his death, after consuming an entire marijuana cookie. An autopsy revealed that there was no other drug, nor alcohol, in his body except marijuana. http://kdvr.com/2014/04/02/student-fell-to-death-after- eating-marijuana-cookie-denver-coroner-says/ http://denver.cbslocal.com/2014/09/15/ordinance-would- ban-denverites-from-making-hash-oil-at-home/ https://www.youtube.com/watch?v=3P_CEXRt010 298 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 24 Often the marijuana edibles are packaged and look just like over-the-counter candy and food purchases. This is of particular concern when it comes to youth. According to the Children’s Hospital Colorado,44 children are at a significant risk when they ingest marijuana edibles, innocently believing it is candy. The concerns over packaging and labeling have led the Department of Revenue, Marijuana Enforcement Division (MED), to call for a new panel 45 to determine how edibles can be made safer. Colorado law gives the MED powers to enforce packaging and sales practices by recreational marijuana operations similar to those granted over liquor products and stores. Informational labeling requirements have been established by the MED.46 The labels are required to list the batch number or marijuana plant or plants contained in the container that were harvested and a list of solvents and chemicals used in the creation of the medical marijuana concentrate. In addition, medical marijuana-infused products must be designed and constructed to be difficult for children under five years of age to open, as well as have print on the label saying, ”Medicinal product – keep out of reach of children.” Marijuana Tourism: Impacts on Public Safety Marijuana tourism began almost immediately after the passage of Amendment 64, and it has grown to become a significant factor in the administration of the law. Visitors from out of state can only buy ¼ of an ounce at a time (compared to an ounce at a time for residents). Nearly 90 percent of the recreational marijuana sold at ski resorts was to tourists.47 The annualized marijuana demand for tourists visiting mountain communities is between 2.15 and 2.54 tons of marijuana, and it is expected to grow in 2014 to be between 4.3 and 5.1 metric tons of marijuana.48 Law enforcement agencies have found novice users, such as tourists, pose a particular problem because they often do not understand the potency of the marijuana and marijuana infused products, often resulting in overdoses. Hospitalizations related to marijuana have steadily increased49 from 2000 to 2013 resulting in a 218% increase (see graph below taken from Rocky Mountain HIDTA report).50 Many patients go to the emergency room reporting that they feel like they are dying because they feel their heart pounding in their chest.51 http://www.mrctv.org/videos/cbs-wakes-dangers-edible-pot A marijuana-infused gummy bear next to a regular one. source: International Business Times - http://www. ibtimes.com/marijuana-edibles-colorado-offi- cials-want-ban-some-strict-regulations-others-1707957 299 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement25 To deal with the problem of educating tourists, police departments have asked hotels and visitors’ bureaus to include literature on marijuana safety. The Breckenridge Police Department has prepared literature for tourists and asked it to be distributed by recreational marijuana shops. The department has prepared a separate brochure warning hotel workers to be cautious of edibles left in the rooms by departing tourists. SOURCE: Colorado Hospital Association, Emergency Department Visit Dataset. Statistics Prepared by the Health Statistics and Evaluation Branch, Colorado Department of Public Health and Environment (CDPHE). Reprinted from the Rocky Mountain High Intensity Drug Trafficking Area report on the “Legalization of Marijuana in Colorado, The Impact.” August 2014. Tourists are occasionally stopped at airports with marijuana “leftovers” in their bags. Others have left marijuana inside hotel rooms and rental cars. One hotel worker found marijuana edibles left in a room and thought it was candy. Upon returning home the worker innocently gave it to children. Residential grows pose safety risks for first responders There are many public safety hazards with homegrown marijuana. First responders entering a home growing operation need to be aware of the types of dangers and the importance of using personal protective equipment before entering. Just like methamphetamine houses, marijuana houses contain numerous health and safety hazards that require special practices. Growing marijuana requires high-intensity lighting for the growing and flowering season, increased carbon dioxide levels, high humidity levels, and heat. Law enforcement officials working with National Jewish Health in Denver issued a checklist of potential hazards for officers entering a growing operation52: 300 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 26 UÊÊ/œÝˆVʓœ`]Ê܅ˆV…Ê}ÀœÜÃʈ˜ÊVœ˜ÃÌ>˜ÌÊÜiÌÊVœ˜`ˆ- tions, can be dangerous even in small quantities for some people. UÊÊ7…i˜ÊÀi“œÛˆ˜}ʈi}>Ê}ÀœÜˆ˜}ʜ«iÀ>̈œ˜Ã]Ê officers should be wary of THC levels in the air, on the surfaces of the home, and on the hands of the investigating officers. Therefore, officers should use gloves and possibly surgical masks when handling plants. UÊÊÀœÜiÀÃʅ>ÛiÊLii˜ÊŽ˜œÜ˜Ê̜Ê`ˆÃVœ˜˜iVÌÊ̅iÊÛi˜ÌÊ system for the furnace and hot water heater, to enhance plant growth. This creates high carbon dioxide levels and a potential for carbon monox- ide poisoning. UÊÊiÀ̈ˆâiÀÃÊ>˜`Ê«iÃ̈Vˆ`iÃÊV>˜Ê«œÃiÊ>ʅ>â>À`ʈvʈ“«Àœ«iÀÞʅ>˜`i`°Ê Law enforcement officials said that one of the most dangerous factors for residents extracting their own THC is the potential for a hash oil explosion. Because growing operations can include a rudimentary THC hash oil refinery, officers are urged to take precautions similar to those used in a methamphetamine laboratory operation. When dealing with hash oil refineries, officers are recommended to follow PPE guidelines as provided by the American Industrial Hygiene Association in 2010: UÊÊ …i“ˆV>ÊÀiÈ`i˜ÌÊLœœÌÃÊ܈̅Êψ«Ê>˜`ʫ՘VÌÕÀiÊ«ÀœÌiV̈œ˜ÆÊ UÊÊ ÞiÊ>˜`Êv>ViÊ«ÀœÌiV̈œ˜Æ UÊÊ/>V̈V>ÊL>ˆÃ̈Vʅi“iÌÆ UÊÊ/i>ÀÊ>˜`ÊwÀiÊÀiÈÃÌ>˜ÌʜÕÌiÀÊ}>À“i˜ÌÆ UÊÊ …i“ˆV>ÊÀiÈÃÌ>˜ÌÊ}œÛiÃÆ UÊÊ/ÞÛiŽÊ>˜`ɜÀÊV…i“ˆV>ÊÀiÈÃÌ>˜ÌÊVœÛiÀ>ÃÆ UÊÊœÀÊ՘Ž˜œÜ˜Ê>̓œÃ«…iÀiÃÊqÊ>ÊÃiv‡Vœ˜Ì>ˆ˜i`ÊLÀi>̅ˆ˜}Ê>««>À>ÌÕÃÊ­- ®Æ UÊÊœÀʎ˜œÜ˜Ê>̓œÃ«…iÀiÃÊqÊ>Ê*œÜiÀi`Ê>ˆÀÊ«ÕÀˆvވ˜}ÊÀiëˆÀ>̜ÀÊ­**,®ÊœÀÊ>ˆÀÊ«ÕÀˆvވ˜}Ê respirator with a P-100 cartridges.53 Residential growing operations can contain fire risks including overloaded electrical circuits and bypassed electrical meters. An additional hazard is the presence of carbon dioxide cylinders, which can explode due to electrical arcing.54 Denver Rental Grow source: Chief Marc Vasquez 301 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement27 Beyond the risk to investigating officers, law enforcement officials in the Police Foundation focus groups said they are concerned about the potential danger for children living in homes with marijuana growing operations. The Colorado legislature had considered legislation to define drug endangerment, but no laws have passed. Officers asked to investigate child endangerment in growing operations must rely on current safety laws during the investigation. KEY ISSUE Legalization of Marijuana Will Bring Changes to Hiring Practices The conflicts between drug-free workplace laws and patients’ rights are currently being debated in Colorado’s courts. The language of Amendment 64 stated that it did not require any employer to accommodate the use of medical marijuana in the workplace. But the Colorado Supreme Court is weighing an appeal by a worker55 – left a quadriplegic in an auto crash - who was fired for having THC in his system, although he did not use marijuana at work. Even without a legal requirement to allow officers to use medical marijuana when recommended, departments in states with legalized marijuana laws may soon be faced with the need to rethink hiring practices that ban any admitted use of marijuana. Public safety agencies are seeing more job applicants admitting to using marijuana just prior to applying. The pool of applicants is shrinking because of this, which has made it more difficult to fill openings in a timely manner.56 The Attorney General’s Office has supported a zero tolerance stance for all employees, including peace officers and firefighters, for use of marijuana even when off duty. Residential Electrical Rewiring source: Chief Marc Vasquez. 302 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 28 POINTS FOR CONSIDERATION UÊ œ‡œÀ`ˆ˜>Ìi`Ê«>˜˜ˆ˜}Ê>˜`ʜÕÌÀi>V…Ê>Àiʘii`i`Ê̜Êi˜ÃÕÀiÊ̅iÊÃ>viʜ«iÀ>̈œ˜ÊœvÊ “>ÀˆÕ>˜>ÊLÕȘiÃÃiÃ°Ê Officers and deputies are called when citizens are concerned about potential nuisance and safety violations caused by marijuana operations in their neighborhoods. Law enforcement is often faced with the necessity of both interpreting and enforcing vague laws and regulations regarding marijuana cultivation and extraction operations. Law enforcement leaders should develop partnerships with city or county code inspectors, planners, city or county attorneys, district attorney’s offices, and any other city or county agency that can play a role in establishing ordinances or inspecting, regulating, and prosecuting public safety violations. UÊ>ÜÊi˜vœÀVi“i˜Ìʏi>`iÀÃÊŜՏ`ÊvœÀ“Ê>ÊÃÌ>Ìi܈`iÊܜÀŽˆ˜}Ê}ÀœÕ«Ê̜Ê>ÃÃiÃÃÊVÕÀÀi˜ÌÊ V…>i˜}iÃÊ>˜`Ê«À>V̈Viʜ˜Ê“>ÀˆÕ>˜>Êi˜vœÀVi“i˜Ìʈ˜ÊœÀ`iÀÊ̜ʈ˜vœÀ“ÊÃÌ>ÌiÊ>˜`ʏœV>Ê «À>V̈ViÃÊ>˜`Ê«œˆVˆið Under Colorado law, every local jurisdiction can establish its own regulations on marijuana businesses, but many of the challenges facing law enforcement are similar throughout the state. Police Foundation focus group members called for statewide information sharing sessions to share best practices and emerging issues, as well as ensuring the dissemination of criminal intelligence and information on illegal marijuana trafficking. UÊ/…iÊÃÌ>Ìiʓi`ˆV>Ê>ÃÜVˆ>̈œ˜ÊŜՏ`Ê`iÛiœ«ÊÃÌ>˜`>À`ˆâi`Ê«…ÞÈVˆ>˜ÊVÀˆÌiÀˆ>Ê vœÀÊÜÀˆÌˆ˜}ʓi`ˆV>Ê“>ÀˆÕ>˜>ÊÀiVœ““i˜`>̈œ˜ÃÊ>˜`ÊÅ>ÀiÊ̅iÊVÀˆÌiÀˆ>Ê܈̅ʏ>ÜÊ i˜vœÀVi“i˜ÌÊ>˜`Ê̅iÊ«ÕLˆV° Law enforcement faces a challenge in determining whether medical marijuana growers are producing excess product that could be sold on the black market. Additionally, a physician has been sanctioned57 for writing thousands of recommendations without even meeting patients. A standardized state system could provide guidance in planning enforcement efforts.NSIDERATION cont’d UÊ>ÜÊi˜vœÀVi“i˜Ìʏi>`iÀÃÊ>˜`ÊÃÌ>ÌiÊ̜ÕÀˆÃ“ÊœvwVˆ>ÃÊŜՏ`Ê`iÛiœ«Ê>˜`Ê`ˆÃÌÀˆLÕÌiÊ i`ÕV>̈œ˜>Ê“>ÌiÀˆ>ÃÊ>LœÕÌÊ œœÀ>`œ½Ãʓ>ÀˆÕ>˜>ʏ>ÜÃÊ>˜`ÊÃ>viÌÞʈ˜vœÀ“>̈œ˜° Tourists coming from out-of-state often do not know the basics of Colorado’s marijuana laws, such as no public consumption or no consumption while driving. Medical center emergency rooms have also reported seeing an increasing number of out-of-state patients who overdosed because they were not aware of the potency of the product they ingested. Educational materials should be available in hotels, tourism outlets, and marijuana retail businesses to provide legal and safety information. UÊ,iµÕˆÀiʅœÃ«ˆÌ>ÃÊ>˜`Êi“iÀ}i˜VÞÊV>ÀiÊVi˜ÌiÀÃÊ̜ÊVœiVÌÊ`>Ì>ʜ˜Ê̅iʘՓLiÀÊ>˜`Ê ˜>ÌÕÀiʜvÊi“iÀ}i˜VÞÊÀœœ“ÊۈÈÌÃʈ˜ÛœÛˆ˜}ʓ>ÀˆÕ>˜>° The health care industry and law enforcement agencies should create a statewide database to inform practices and policies regarding marijuana overdose and what on- the-scene measures might help lessen the trauma. 303 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement29 VI. MARIJUANA’S EFFECT ON YOUTH – ISSUES FOR PUBLIC EDUCATION AND FUTURE LAW ENFORCEMENT CHALLENGES A widely-cited article in the Lancet Psychiatry Journal58 stated that studies have shown that those who use marijuana daily before age 17 are 60 percent less likely to finish high school or college, seven times more likely to commit suicide and eight times more likely to use addictive drugs later in life. Amendment 64 clearly states that no one under the age of 21 can possess recreational marijuana. Legal marijuana retail stores face the same enforcement and oversight as liquor stores when it comes to selling to minors. Ben Cort, Business Development Manager, University of Colorado Center for Dependency, Addiction and Rehabilitation, said that studies have shown that many young people with substance abuse problems have easy access to marijuana through patients with a medical marijuana card. In addition, many teenagers have followed the debate regarding legalized marijuana and have been swayed by the proponents’ arguments that marijuana is much safer than alcohol, he said. Cort told the Colorado Juvenile Council meeting in November 2014 that the dangers to youth from marijuana have increased under legalization. Colorado has seen the greatest percentage of youth marijuana use in 10 years, based on the latest National Survey on Drug Use and Health (2011-2012). Youth, ages 12-17, reported using marijuana in the past month at a rate almost 40 percent higher than the national average. Marijuana use by homeless juveniles is a growing concern, according to Police Foundation focus group members. As with the general homeless population, many turn to panhandling and theft to support themselves, focus group members said. No studies are available to measure the effects of juvenile marijuana use on future criminal “We won’t know the extent of the damage legalized marijuana has caused for our youth until 5 to 10 years down the road. Unfortunately, we’ve used our kids to understand the impacts in this great social experiment.” – Ben Cort, ÕȘiÃÃÊ iÛiœ«“i˜ÌÊ>˜>}iÀ]Ê 1˜ˆÛiÀÈÌÞʜvÊ œœÀ>`œÊÊ “I am very concerned about the effect of marijuana on the developing brains of our youth. I believe we can and must do a better job addressing this issue in Colorado… Our success with the student-led/adult-facilitated ‘Drive Smart Campaign’ has been highly successful in terms of reducing teen driving accidents and fatalities. I would like to see a similar approach to addressing the issue of teen drug use.” – Officer David Pratt, -V…œœÊ,iÜÕÀViÊ"vwViÀ]Ê œœÀ>`œÊ -«Àˆ˜}ÃÊ­ "®Ê*œˆViÊ i«>À̓i˜Ì 304 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 30 behavior. Police Foundation focus group members expressed concern that the high dropout rate and emotional setbacks faced by such teens are common indicators of the potential for future criminal activity. They worry that the increased availability of high- potency marijuana and an increasingly positive public reaction to marijuana use will mean difficult challenges ahead for youth education on these dangers. POINTS FOR CONSIDERATION UÊ*ÕLˆVÊi`ÕV>̈œ˜ÊV>“«>ˆ}˜ÃÊ̜ʫÀiÛi˜ÌʍÕÛi˜ˆiʓ>ÀˆÕ>˜>ÊÕÃiÊŜՏ`ÊLiÊÀiۈÃi`ÊÌœÊ i“«…>ÈâiÊ̅iʅi>Ì…Ê`>˜}iÀÃʜvÊÀi}Տ>Àʓ>ÀˆÕ>˜>ÊÕÃiÊLÞÊޜÕ̅° Colorado law restricts recreational marijuana possession to people over the age of 21, but law enforcement officials said they have observed an increase in marijuana use among teenagers since legalization. Public education campaigns must emphasize scientific studies that have raised health alarms over juvenile marijuana use to counter the public perception that marijuana is safer to use than alcohol. UʘVÀi>Ãi`ÊÌÀ>ˆ˜ˆ˜}Ê>˜`Ê̜œÃÊŜՏ`ÊLiÊ«ÀœÛˆ`i`Ê̜ÊÃV…œœÊÀiÜÕÀViʜvwViÀÃÊ̜Êi˜ÃÕÀiÊ̅>ÌÊ ÞœÕ̅ÊÀiViˆÛiÊv>VÌÕ>Êˆ˜vœÀ“>̈œ˜Êœ˜Ê̅iÊ`>˜}iÀÃʜvʓ>ÀˆÕ>˜>ÊÕÃi°Ê State health and research officials should intensify studies on the effects of marijuana on education, employment, health, and mental illness. https://www.youtube.com/watch?v=jtVJMJpavyw 305 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement31 VII. FIELD TESTS ARE A CHALLENGE TO MEASURE DRIVING UNDER THE INFLUENCE OF MARIJUANA As stated in Amendment 64, recreational marijuana use is subject to the same standards of public behavior as alcohol. Consumption of marijuana is prohibited in all public places, and standards of public intoxication can be similarly applied. Consumption of marijuana while driving is prohibited, and driving under the influence of marijuana is treated similarly to driving under the influence of alcohol.59 However, police have found that putting these new enforcement measures into effect is a major challenge. Colorado has established a blood level of five or more nanograms per milliliter of THC as the limit for driving while impaired. One of the biggest challenges is determining the legal limit of driving while impaired when marijuana is combined with alcohol or other drugs. Using marijuana with alcohol will produce more impairment than if either drug was used alone.60 Detection of this level of impairment has required an entirely new testing system and complete retraining for law enforcement officers in Colorado. The initial procedures for driving under the influence of alcohol or marijuana are the same, law enforcement officials said. The officer will look for inidicia of impairment like bloodshot eyes, slurred speech, and abnormal responses to questions. If the officer suspects that a driver is impaired, a field sobriety test can be performed to measure balance and other factors. If the driver fails that test, or refuses it, the officer must decide whether to require a blood test to determine the level of THC. These tests require medical personnel, either a paramedic at the scene or a hospital emergency room to draw the blood sample. The test results can take from one day to six weeks. Police Foundation focus group members said law enforcement is facing a tremendous cost increase for testing for driving under the influence of marijuana. A blood test for alcohol costs approximately $25 to $35, while the drug panel that includes marijuana can cost $250-$300. There is emerging technology that allows for the testing of oral fluids for drugs, such as THC. The State of Colorado is currently examining this technology to see if it is effective. This alternative technology tests for the presence of drugs based on saliva, known as the Oral Fluid Test. Although the method is quicker and easier than taking blood samples, the evaluation period to show whether drugs are in the system is about the same. There is currently no technology available to do a marijuana “breathalyzer” test, which has significantly shortened the time involved for DUI testing for alcohol. Researchers at Washington State University have reported progress in developing a portable breathalyzer that could provide an initial reading to aid in decision-making on driving under the influence. Testing on the device is expected to begin in spring 2015. 306 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 32 The additional law enforcement training for sobriety testing and drug detection will cost about $1.24 million in the coming year, according to the Colorado Association of Chiefs of Police (CACP). Those funds will include officer training on Advanced Roadside Impaired Driving Enforcement (ARIDE), legal updates, train-the-trainers, Drug Recognition Expert (DRE) trainings, and DUID classes. There are a series of trainings offered which will assist law enforcement officers to better detect drivers who are impaired by substances, such as marijuana. As an example, officers can receive training on the basic Standardized Field Sobriety Test (SFTS). A more intense training course is called ARIDE, which is a sixteen-hour class to train law enforcement officers on how to detect drug-impaired drivers and is given after the SFST training. The National Highway Safety Administration (NHTSA) developed training materials for these courses. Finally, if an officer wishes to become an expert in roadside detection, then the officer would become a drug recognition expert (DRE). The DRE training, which has been in existence since the 1970s, trains law enforcement officers to detect and identify drivers who may be impaired on a variety of substances. This detection is very important because research has shown that drivers are often impaired by more than one substance. Observing drug-impaired driving is not a new situation for most officers, but legal experts have warned that more training and better equipment is essential in order to provide adequate resources for prosecution under the new laws of marijuana legalization. While in the past simply having evidence of marijuana in the system could lead to conviction of drivers, many judges and juries will be more demanding of proof that the case meets the legal criteria of impairment. POINT FOR CONSIDERATION Uʈi`Ê-œLÀˆiÌÞÊÌiÃ̈˜}ÊvœÀʓ>ÀˆÕ>˜>ÊÕÃiÀÃÊŜՏ`ÊLiÊv՘`i`Ê̜Êi˜ÃÕÀiÊ̅>ÌÊ>ÊœvwViÀÃÊ ˆ˜Ê œœÀ>`œÊ>ÀiÊÌÀ>ˆ˜i`Ê̜ÊÀiVœ}˜ˆâiÊ̅iÊ`ˆvviÀi˜ViÊLiÌÜii˜Ê`ÀˆÛiÀÃÊ܅œÊ>ÀiÊ՘`iÀÊ̅iÊ ˆ˜yÕi˜Viʜvʓ>ÀˆÕ>˜>ÊÛiÀÃÕÃÊ>Vœ…œ° Marijuana is being ruled a factor in an increasing number of highway deaths63 in Colorado according to data gathered by the Rocky Mountain High Intensity Drug Trafficking Area task force, and patrol officers must be given the tools to discern whether drivers are impaired by marijuana ingestion. Currently the state has not fully funded the training program for officers to determine if those stopped are driving under the influence of marijuana. 307 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement33 CONCLUSION Legalization of marijuana is a complex issue and many unanticipated consequences have challenged Colorado law enforcement. Until there is more clarification and stiffer sanctions for law violations, law enforcement is working at a deficit in trying to reduce the black and gray markets. Law enforcement leaders are just beginning to understand the related crime and disorder issues associated with legalized marijuana, and how to reduce them through ordinances, codes, policies, and partnerships. Establishing partnerships with city agencies, such as code enforcement, building inspectors, fire, and zoning is currently one of the best strategies in addressing the problems. Local ordinances addressing neighborhood complaints, such as noxious odors, building and code violations, and land use codes, have been found to be effective in regulating non-commercial marijuana cultivation. Marijuana odors emitted from households growing marijuana, child endangerment, THC distillation processes, dangerous electrical wiring, and furnace reconstruction to recover dangerous carbon monoxide fumes for plant growth are just a few examples of how law enforcement can work with city and county agencies to reduce these public risks. Officer safety is paramount when going into marijuana cultivations, especially houses where toxic black mold is in the house growing marijuana. These homes may pose similar health dangers as methamphetamine homes. Policies should be established outlining procedures for officers using personal protective equipment when entering these homes or at any grow location where there is risk of toxic black mold. The conflict between federal and state laws regarding the legalization of marijuana has put law enforcement in a difficult situation. This has impacted public safety regarding unavailability of banking services and the challenges to officer integrity for those who have taken an oath to uphold both federal and state constitutions, but are now trying to uphold conflicting laws. The Police Foundation and the Colorado Association of Chiefs of Police believe sharing challenges, lessons learned, and points for consideration will provide a launching point for increased national discussions and will help identify strategies to resolve the conflicts and challenges for states passing legalized marijuana laws. As the states neighboring Colorado have discovered, marijuana has become a complicated and pressing issue, even where it has not been legalized. The Colorado Association of Chiefs of Police and individual departments around the state worked tirelessly to ensure that legislation enacting the rules and regulations in Amendment 64 provided adequate enforcement measures. Those efforts were rushed, however, by the short period between the passage of the amendment and enactment of the legislation.64 They remain concerned that state officials have not allocated adequate resources to meet the new challenges brought by the law. Their message to law enforcement officials in states where voters are considering legalization: Develop a legislative and statewide funding plan before the measure passes and be ready to make the case for proper enforcement in the name of public safety. 308 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 34Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 1 Stiffler, C. (2013, August 16). Amendment 64 would produce $60 million in new revenue and savings for Colorado. Colorado Center on Law and Policy. Retrieved from http://cclponline.org/ wp-content/uploads/2013/11/amendment_64_analysis_final.pdf 2 Ticer, R.L. (2014, March 3). Letter to the Honorable John Hickenlooper. TS. 3 States of Nebraska and Oklahoma v. State of Colorado, 28 U.S.C. § 1251(a) (2014). 4 Ingold, J. (2009, November 10). Judge tosses out health board decision on medical pot. The Denver Post. Retrieved from http://www.denverpost.com/ 5 Ogden, D.W. (2009). Investigations and prosecutions in States authorizing the medical use of marijuana [Memorandum] Washington, DC: Department of Justice. 6 Vasquez, Marco, Interview December 3, 2014. 7 Vasquez, Marco, “Marijuana in Colorado,” PowerPoint presentation at Metro State University, October 2014. 8 McGhee, T. (2014, July 25). Legal pot blamed for some of the influx of homeless in Denver this summer. The Denver Post. Retrieved from http://www.denverpost.com/ 9 Pot is blamed for influx of homeless kids in Denver. (2014, July 26). The Associated Press. Retrieved from http://nj1015.com/pot-is-blamed-for-influx-of-homeless-kids-in-denver/. 10 Klemaier, J. (2014, June 5). Golden city council votes to ban marijuana sales. The Denver Post. Retrieved from http://www.denverpost.com/ 11 Golden, Colorado, Municipal Code § 4.94.110. 12 Department of Treasury Financial Crimes Enforcement Network. (2014, February 14). BSA expectations regarding marijuana-related businesses. Retrieved from http://www.fincen.gov/ statutes_regs/guidance/pdf/FIN-2014-G001.pdf 13 Kuntz, K. (2014, December 8) Feds connecting legal marijuana transactions with suspicious activities. Rocky Mountain PBS News. Retrieved from http://inewsnetwork.org/2014/12/08/ feds-connecting-legal-marijuana-transactions-with-suspicious-activities/ 14 Migoya, D. (2014, November 20). Colorado pot credit union could be open by Jan. 1 under state charter. The Denver Post. Retrieved from http://www.denverpost.com/ 15 Hughes, T. (2014, July 13). Pots of marijuana cash cause security concerns. USA Today. Re- trieved from http://www.usatoday.com/ 16 Cole, J.D. (2013, August 29). Guidance regarding marijuana enforcement. Washington, DC: Department of Justice. 17 Department of Revenue Department of Public Health and Environment. (2013). Medical marijuana regulatory system- Part 1. Retrieved from http://www.leg.state.co.us/OSA/coauditor1.nsf/All/1B- B1CBF38E313A1587257B320079E543/$FILE/2194A%20MedicalMarijuanaRegSys%20031813.pdf 18 Gurman, S. (2014, June 29). Police growing cautious of seizing marijuana plants. The Boston Globe. Retrieved from http://www.bostonglobe.com/ 309 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement44Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 19 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for mar- ijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20 and%20Demand%20Study,%20July%209,%202014%5B1%5D.pdf. 20 Griego, T. (2014, July 30). Inside Colorado’s flourishing, segregated black market for pot. The Washington Post. http://www.washingtonpost.com/ 21 Nicks, D. (2014, March 11). Pot growers are snatching up warehouse space in Denver. Time. Retrieved from www.time.com 22 Griego, T. (2014, July 30). Inside Colorado’s flourishing, segregated black market for pot. The Washington Post. http://www.washingtonpost.com/ 23 Griego, T. (2014, July 30). Inside Colorado’s flourishing, segregated black market for pot. The Washington Post. http://www.washingtonpost.com/ 24 Sujdak v State of Colorado, No 2012-003919-B (May 23, 2014). 25 Denver Combined Tax Rates. (2013). Retrieved on December 23, 2014, from http://www.denver- gov.org/Portals/571/documents/Tax%20Rates%20effective%201-1-2014.pdf. 26 Ibid., http://www.denvergov.org/Portals/571/documents/Tax%20Rates%20effective%201-1-2014.pdf. 27 Davidson, J. (2014, July 8). Price war heats up between legal marijuana and the black market. Time- Money. Retrieved from http://time.com/money/ 28 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for mar- ijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20 and%20Demand%20Study,%20July%209,%202014%5B1%5D.pdf. 29 Lee, K. (2014, August 12). In Colorado, tax revenue from recreation pot lower than expected. LA Times. Retrieved from http://www.latimes.com/ 30 Hegeman, R. (2013, August, 27). Kansas at crossroads of marijuana trafficking. The Denver Post. Retrieved from http://www.denverpost.com/ 31 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of mari- juana in Colorado: The Impact. Retrieved from www.rmhidta.org . 32 States of Nebraska and Oklahoma v. State of Colorado, 28 U.S.C. § 1251(a) (2014). 33 Ingold, J, & Gorski, E. (2013, September 3). More Colorado pot is flowing to neighboring states, officials say. The Denver Post. Retrieved from http://www.denverpost.com/ 34 Ingold, J, & Gorski, E. (2013, September 3). More Colorado pot is flowing to neighboring states, officials say. The Denver Post. Retrieved from http://www.denverpost.com/ 35 Horwitz, S. (2014, April 30). DEA Chief says marijuana- trafficking spiking in states near Colora- do. The Washington Post. Retrieved from http://www.washingtonpost.com/ 36 Kost, A. & Kovaleski, J. (2014, May 25). Colorado weed blamed for increasing law enforcement costs in Nebraska. ABC7 Denver News. Retrieved http://www.thedenverchannel.com/. 35 310 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 36Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 37 Learn about Marijuana: Science based information for the public. (n.d.) National Cannabis Pre- vention and Information Centre. Retrieved from http://learnaboutmarijuanawa.org/factsheets/ cannabinoids.htm 38 Ibid., http://learnaboutmarijuanawa.org/factsheets/cannabinoids.htm 39 Ibid., http://learnaboutmarijuanawa.org/factsheets/cannabinoids.htm 40 Silva, R. (2014, April 28). Hash oil cause of explosion in Colorado Home. HNGN News. Retrieved from http://www.hngn.com/articles/29844/20140428/hash-oil-cause-of-explosion-in-colorado- home.htm. 41 Watts, L. (2014, November 10). Dad prompts Denver to change hash oil ban; Some production now allowed for medical purposes. 7 News Denver. Retrieved from http://www.thedenver- channel.com; Murray, J. (2014, September 4). Denver joins cities seeking to crack down on risky hash oil extraction. The Denver Post. Retrieved http://www.denverpost.com/news. 42 McCrimmon, K.K. (2014, June 4). Colorado epicenter for hash oil fires, severe burns. Health News Colorado. Retrieved from http://www.healthnewscolorado.org/2014/06/04/colorado-epi- center-for-hash-oil-fires-severe-burns/. 43 Ibid., http://www.healthnewscolorado.org/2014/06/04/colorado-epicenter-for-hash-oil-fires-se- vere-burns/. 44 Marijuana Safety in the Home. (n.d.) Retrieved December 23, 2014, from http://www.childrens- colorado.org/wellness-safety/parent-resources/marijuana-what-parents-need-to-know/safety 45 Wyatt, K. (2014, November 16). APNewsBreak: Pot treats may face Colorado scrutiny. Associ- ated Press. Retrieved from http://bigstory.ap.org/article/a43d5d4c9a534b139a867cdc88d516f8/ apnewsbreak-pot-treats-may-face-colorado-scrutiny 46 Retail Marijuana Code of 2014, C.R.S. 24-43.4-101 -et. seq. 47 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for mar- ijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20 and%20Demand%20Study,%20July%209,%202014%5B1%5D.pdf. 48 Ibid., p.24, https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20and%20De- mand%20Study,%20July%209,%202014%5B1%5D.pdf. 49 Dukakis, A. (2014, April 29). Denver emergency room doctor seeing more patients for marijuana edibles. Colorado Public Radio. Retrieved from http://www.cpr.org/ 50 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of mari- juana in Colorado: The Impact. Retrieved from www.rmhidta.org . 51 Hughes, T. (2014, May 8_ Marijuana ‘edibles’ pack a wallop. USA TODAY. Retrieved from http:// www.usatoday.com/ 52 Martyny, J.W., Van Dyke, M.V., Schaefer, J., & Serrano, K. (2010). Health effective associated with indoor marijuana grow operations. U.S. Department of Justice, Bureau of Justice Assis- tance 311 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement46Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 53 Martyny, J.W., Van Dyke, M.V., Schaefer, J., & Serrano, K. (2010). Health effective associated with indoor marijuana grow operations. U.S. Department of Justice, Bureau of Justice Assistance 54 Jelinek, C. (2009, December). Indoor marijuana cultivation fire risk reduction. Eureka Fire De- partment, Eureka California. Retrieved from http://www.usfa.fema.gov/pdf/efop/efo44164.pdf. 55 Campbell, G. (2014, October 6). Colorado high court weighs landmark medical mari- juana case. The Daily Caller. Retrieved from http://dailycaller.com/2014/10/06/colora- do-high-court-weighs-landmark-medical-marijuana-case/. 56 Interview with Deputy Chief Vince Niski, December 2, 2014. 57 Sujdak v State of Colorado, No 2012-003919-B (May 23, 2014). 58 Silins, E., Horwoord, L.J., Patton, G.C., Fergusson, D.M., Olsson, C.A., Hutchinson, D.M., . . . Mat- tick, R.P. (2014). Young adult sequelae of adolescent cannabis use: An intergrative analysis. The Lancet Psychiatry, 1(4), 286-293. doi: http://dx.doi.org/10.1016/S2215-0366(14)70307-4 59 Title 42- Vehicles and Traffic, C.R.S. 42-4-1301 (2014). 60 Sewell, R.A., Poling, J., & Sofuoglu, M. (2009). The effect of cannabis compared with alcohol on driving. The American Journal on Addictions, 18(3), 185-19. doi: 10.1080/10550490902786934 61 Santos, M. (2014, November 28). Breath test to detect pot is being developed at WSU. The News Tribune. Retrieved from http://www.thenewstribune.com/ 62 Interview with Chris Haslor, Understanding Legal Marijuana, L.L.C., Law Office of Chris Haslor, former Traffic Safety Resource Prosecutor for Colorado District Attorneys’ Council. 63 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of mari- juana in Colorado: The Impact. Retrieved from www.rmhidta.org . 64 Sybrandy, H. (2013, April 30). Police leaders sound alarm, say legislature dropped ball on mari- juana regulation. Fox 31 Denver. Retrieved from http://kdvr.com/ 37 312 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 38Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement APPENDIX 1: COLORADO’S LEGISLATIVE HISTORY REGARDING THE LEGALIZATION OF MARIJUANA INTRODUCTION Understanding Colorado’s legislative and political history provides important perspective for appreciating Colorado law enforcement’s experience with addressing the legalization of marijuana. There were two notable elements of the legislation that legalized marijuana in the state of Colorado: first, marijuana became legal through an amendment to the Colorado’s consti- tution; and second, the legislative language was ambiguous and broad. This has placed Colorado law enforcement in the position of both interpreting and enforcing the law. It is further complicated by the fact that, at the federal level, marijuana is still an illegal drug under the Controlled Substance Act of 19701, which classified marijuana as a Schedule I controlled substance.2 AMENDMENT 20: NOVEMBER 2000 MEDICAL MARIJUANA BALLOT MEASURE Overview of Colorado Amendment 20 The shift toward legalized marijuana use began with the passage of Amendment 20, The Medical Use of Marijuana Act, which passed with the support of 53.3 percent of Colorado voters in November 2000.3 The amendment to the Colorado Constitution made the following legal under state law: UÊ1Ș}ʓ>ÀˆÕ>˜>Ê܈̅Ê>Ê«…ÞÈVˆ>˜½ÃÊÀiVœ““i˜`>̈œ˜ÊvœÀÊ`iLˆˆÌ>̈˜}ʓi`ˆV>ÊVœ˜`ˆ- tions defined as chronic pain, severe nausea, persistent muscle spasms (i.e. multi- ple sclerosis), cancer, glaucoma, cachexia, seizures (e.g., epilepsy), and HIV; UÊ*œÃÃiÃȘ}ʘœÊ“œÀiÊ̅>˜ÊÌܜʜ՘ViÃÊ>˜`ÊÕ«Ê̜ÊÈÝʓ>ÀˆÕ>˜>Ê«>˜ÌÃ]Ê܈̅ʘœÊ“œÀiÊ than three being mature flowering plants that produce usable marijuana; UʘÊiÝi“«Ìˆœ˜ÊvÀœ“ÊVÀˆ“ˆ˜>Ê«ÀœÃiVṎœ˜Ê>˜`Ê>˜Êi>vwÀ“>̈ÛiÊ`ivi˜ÃiÊvœÀÊ«>̈i˜ÌÃÊ from some state criminal marijuana penalties; UÊ/>Έ˜}Ê̅iÊ œœÀ>`œÊ i«>À̓i˜ÌʜvÊ*ÕLˆVÊi>Ì…Ê>˜`Ê ˜ÛˆÀœ˜“i˜ÌÊ­ * ®ÊÜˆÌ…Ê establishing a confidential registry for patients and primary caregivers; UʏœÜˆ˜}ÊV…ˆ`Ài˜Ê>VViÃÃÊ̜ʓi`ˆV>Ê“>ÀˆÕ>˜>Ê܈̅ʫ>Ài˜ÌýʫiÀ“ˆÃȜ˜ÆÊ>˜`] UÊ>Žˆ˜}ʏ>ÜÊi˜vœÀVi“i˜ÌÊiVœ˜œ“ˆV>Þʏˆ>LiÊvœÀÊ̅iÊÛ>Õiʜvʓ>ÀˆÕ>˜>ÊŜՏ`Ê>Ê criminal case not be filed, dismissed, or results in an acquittal. 313 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement48Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 2000 TO 2008: LEGISLATION AND NOTABLE EVENTS FOLLOWING THE PASSAGE OF AMENDMENT 20 Following the passage of Amendment 20, registrations for medical marijuana started on June 1, 2001. By December 31, 2008, there were 4,819 total medical marijuana patients registered with CDPHE and receiving marijuana drug treatment.4 Registered caregivers with CDPHE cultivated marijuana plants and distributed the drug to their patients. A series of events led to a massive number of people registering for medical marijuana cards and the proliferation of medical dispensaries opening in a very short period of time. By December 31, 2009, there were 41,039 patients who possessed a valid registration card from CDPHE.5 The rapid increase created a concern among public safety and public health officials. Decriminalization of Possession and Low Enforcement Priority for Marijuana In November 2005, the City and County of Denver voters passed a ballot initiative de- criminalizing possession of small amounts of marijuana. In 2007, Denver voters approved Ballot Question 100, which directed law enforcement to make arrest or citation of adult cannabis users the lowest priority.6 The town of Breckenridge, a mountain town near ski resorts, also decriminalized marijuana possession and allowed citizens to carry small amounts in 2009.7 Lawsuit Against CDPHE’s Five Patient Rule The Colorado Court of Appeals ruled in October 2009 that caregivers must know the pa- tients who use the marijuana they grow. The ruling upheld a verdict against Stacy Clen- denin who had been found guilty of illegally growing marijuana in her home. Clendenin claimed that she was a caregiver who was growing marijuana for patients. However, the Court of Appeals ruled, “Simply knowing that the end user of marijuana is a patient is not enough.” The court said, “A care-giver [sic] authorized to grow marijuana must actually know the patients who use it.”8 Responding to the court’s ruling, The Colorado Department of Public Health and Environ- ment’s Board of Health created a policy, during a closed meeting, called the “Five Patient Policy” limiting caregivers to providing medical marijuana to no more than five patients.9 The Board of Health’s process for establishing the Five Patient Policy was challenged in a 2007 lawsuit filed on behalf of David “Damien” LaGoy, a registered marijuana patient with life-threatening symptoms resulting from HIV/AIDs and Hepatitis C. LaGoy’s lawsuit claimed that CDPHE: (1) violated the Open Meetings Act,10 (2) violated the Administrative Proce- dures Act11 by deeming the meeting as an emergency, and (3) decreased LaGoy’s access to medical marijuana, increased the confusion of his registered caregiver, Daniel, as to his responsibilities due to the policy defining the caregiver as one who is “significantly respon- 39 314 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 40Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement sible for the well-being of a patient,” and therefore caused an “immediate and irreparable injury.”12 The plaintiffs requested that CDPHE hold a public meeting to define the term “caregiver” and to invalidate their current policy because it was adopted in an arbitrary manner. Additionally, they asked the courts for a temporary and permanent injunction or- dering the defendants to cease and desist from the enforcement of the regulatory change.13 Denver District Court Judge Dave Naves granted a temporary injunction, and after further review, permanently overturned CDPHE’s definition for caregivers. Naves required the CDPHE to hold an open meeting and revise the caregiver language.14 The CDPHE held public hearings according to Naves’ ruling but did not reinstate the “Five Patient Policy.”15 The Federal Government’s Position on Marijuana Enforcement The first national statement regarding legalizing medical marijuana came from President Barak Obama during his campaign in 2008. Attorney General Eric Holder, in Octo- ber 2009, laid out medical marijuana guidelines for federal prosecutors in accordance with the Controlled Sub- stance Act (CSA).16 A memorandum from Deputy Attorney General David W. Ogden provided guidance and clarifi- cation to U.S. Attorneys in those states that have enacted medical marijuana laws. This became known as “The Og- den Memo.”17 The Ogden Memo provides uniform guidance but does not allow medical marijuana to be a legal defense to the violation of federal law, including the Controlled Substances Act. (http://www. justice.gov/sites/default/files/opa/legacy/2009/10/19/medical-marijuana.pdf).18 Specifically, the Ogden Memo directs that prosecutors should place a low priority on cases involving individuals with medical conditions and who are in “clear and unambig- uous compliance” with state laws. The federal government continues to pursue illegal drug trafficking activity as well as the unauthorized production or distribution of medical marijuana by the state when the following situations are present: UÊ1˜>ÜvՏʫœÃÃiÃȜ˜ÊœÀÊ՘>ÜvՏÊÕÃiʜvÊwÀi>À“ÃÆÊ UÊ6ˆœi˜ViÆ https://www.youtube.com/watch?v=LvUziSfMwAw 315 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement50Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement UÊ->iÃÊ̜ʓˆ˜œÀÃÆ Uʈ˜>˜Vˆ>Ê>˜`ʓ>ÀŽï˜}Ê>V̈ۈ̈iÃʈ˜Vœ˜ÃˆÃÌi˜ÌÊ܈̅ÊÃÌ>Ìiʏ>Ü]ʈ˜VÕ`ˆ˜}ʓœ˜iÞÊ laundering, financial gains or excessive amounts of cash inconsistent with purport- ed compliance with state or local law; Uʏi}>Ê«œÃÃiÃȜ˜ÊœÀÊÃ>iʜvʜ̅iÀÊVœ˜ÌÀœi`ÊÃÕLÃÌ>˜ViÃÆʜÀ UÊ/ˆiÃÊ̜ʜ̅iÀÊVÀˆ“ˆ˜>Êi˜ÌiÀ«ÀˆÃið 2009: THE GROWTH OF MEDICAL MARIJUANA CENTERS When CDPHE’s caregiver definition was overturned in 2009, there was no limit on the number of patients caregivers could serve. At the same time, there was a boom in the number of medical marijuana patients registering with CDPHE.a Some medical marijuana proponents decided to test the boundaries of the caregiver model as a result of the LaGoy-Pope Case. This resulted in a prolifer- ation of medical marijuana dispensaries opening in a relatively short time period of time throughout the state. These centers grew large quantities of marijuana plants because they could now claim to be the “caregivers” for an unlimited number of registered medical marijuana patients. This was one of the first major unanticipated problems for law enforcement, according to members of the Police Foundation focus groups. Since there were no statutes or regula- tions, the medical marijuana centers had no restrictions to the number of plants they could grow and the number of patients they served. This also led to patients “shopping” their doctor’s recommendation to as many medical marijuana centers as they wanted and as of- ten as they wanted, focus group members said. As long as the patient had a medical mar- ijuana licence and an authorized doctor’s certification, then that patient could go to many medical marijuana centers as long as they only carried two ounces out of each center. From 2001 to 2008, there were a total of 4,819 approved patient licenses. In 2009, there were 41,039 approved medical marijuana registrations from CDPHE. Source: CDPHE The number of marijuana dispensaries went from zero in 2008 to 900 by mid-2010. Source: Department of Revenue, Marijuana Enforcement Division a. This has led to another challenge in regulation. CDPHE registers medical marijuana patients and caregivers; however, they do not regulate or monitor the caregiver marijuana grows. Beginning in 2010 (?), the Colorado Department of Revenue, Medical Marijuana Enforcement Division (MMED), now entitled the Marijuana Enforcement Division (MED), is responsible for monitoring the caregiver grows. Caregivers are required to register their grow locations with the MED. However, there is no way to cross-verify if this is occurring since CDPHE cannot release the names of the patients and their caregivers due to the Health Insurance Portability and Accountability Act (HIPAA). As a result, enforcing caregiver cultivations is challenging on many different levels such as locations of cultivations, number of plants authorized to grow per patient, illegal cultivations in multiple locations for the same set of patients, and detecting gray market illegal sells to adults and minors. 41 316 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 42Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Because so many medical marijuana centers opened so quickly, state and local officials found it difficult to regulate them. The Colorado General Assembly had not crafted regula- tions governing licensing fees, inventory tracking requirements, production of marijuana infused products, packaging and labeling requirements, and disposal of waste water produced during the processing of medical marijuana. Figure 1: Tipping Point for Opening Medical Marijuana Centers From June 1, 2001, to December 31, 2008, a total of 5,993 patients applied for a medical mar- ijuana registration card (also known as a red card due to its color, shown in Figure 2). Of those applicants, 4,819 were approved. After the opening of the medical marijuana centers, by December 31, 2009, there were 43,769 applications, of which 41,039 were approved. This is an increase of 751.61% approved registrations in just one year’s time. As of December 1, 2014, there were 116,287 medical marijuana patients registered with the state.c c. Lower-than-projected revenues from recreational marijuana, combined with higher revenues from medical marijuana and a high proportion of out of state recreational marijuana customers provide a strong indication that many have elected to obtain red cards because it is less expensive to purchase medical marijuana because of the higher tax structure on recreational marijuana. d. The number of medical conditions does not add to 100% because patients can have more than one debilitating condition. e. The number of medical conditions does not add to 100% because patients can have more than one debilitating condition. 317 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement52Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement43 Year Year Nu m b e r o f r e g i s t e r e d p a t i e n t s Nu m b e r o f r e g i s t e r e d p a t i e n t s Figure 2: Example of Colorado Medical Marijuana Patient Registry Card Source: Chief Marc Vasquez19 Figure 3: Number of Registered Patients and Five Illness Reasons from 2001-2009d Source: CDPHE Figure 4: Number of Registered Patients and Three Illness Reasons from 2001-2009e Source: CDPHE 318 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 44Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement There were no medical marijuana centers before 2009. In that year alone, 250 were opened. As of December 1, 2014, there were 501 state licensed medical marijuana centers with 23 pending applications (see Figure 5 for a map of dispensary locations).22 Figure 5: Colorado Map with Medical Marijuana Dispensary Locations Source: Lt. Ernie Martinez, Director At-Large for the National Narcotics Officers Association Coalition23, for illustration purposes LEGISLATION SUPPORTING AMENDMENT 20 IN 2010 AND 2011 The Colorado Legislature in 2010 and 2011 passed a series of bills to address the unantici- pated consequences of Amendment 20. 2010: Legislation Regulating Medical Marijuana Centers During the 2010 legislative session, the issues of medical marijuana centers and the reg- ulation of cultivation and sales of medical marijuana were addressed through two signif- icant bills: House Bill (HB) 10-1284, establishing the medical marijuana code, and Senate Bill (SB) 10-109, establishing the physician-patient relationship. 319 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement54Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement HB 10-1284: Colorado Medical Marijuana Code Figure 6: Overview of HB 10-1284 Source: Adapted from State of Colorado, Amendment 64 Legislation27 HB 10-1284, known as the Colorado Medical Marijuana Code, codifies sections §12-43.3- 101 et seq., Colorado Revised Statutes (C.R.S.), and was passed in May 2010 and signed into law on June 2010. This bill established legalized medical marijuana centers and other business-related regulations. Additionally, it designated the Colorado Department of Revenue (DOR) as the state licensing authority as well as local licensing authorities throughout the state. This legislation also established the Medical Marijuana Enforcment Division (MMED) within the Department of Revenue to regulate the cultivation, manufac- ture, distribution and sale of medical marijuana and promote compliance with other laws that prohibit illegal trafficking. It also provided regulations for: UÊi`ˆV>Ê“>ÀˆÕ>˜>ÊLÕȘiÃÃʜܘiÀÃÆÊ UÊœV>Ê}œÛiÀ˜“i˜ÌÆ UÊ*…ÞÈVˆ>˜ÃÆÊ UÊ >Ài}ˆÛiÀÃÊ>˜`Ê«>̈i˜ÌÃÆÊ>˜` UÊ/…iÊ œœÀ>`œÊ i«>À̓i˜ÌʜvÊ*ÕLˆVÊi>Ì…Ê>˜`Ê ˜ÛˆÀœ˜“i˜ÌÊ­ * ®° 45 320 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 46Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement According to HB 10-1284, an owner interested in opening a medical marijuana business was required to obtain approval first from their local licensing authorities. Once approved, the owner could apply to obtain a state license from the Department of Revenue. The law gave the MMED the authority to establish an application fee structure to cover the state and local licensing authorities’ operating costs. All existing center or manufacturer owners, or owners who had applied to a local gov- ernment for operations by July 2010, were allowed to continue to operate as long as they registered with the Department Revenue and paid their license fee. They also had to certify that they were cultivating at least 70 percent of the marijuana necessary for their operations by September 2010. Provisions were established for local licensing authorities which allowed local government to adopt a resolution or ordinance to license, regulate, or prohibit the cultivation and sale of medical marijuana. This needed to be completed by July 1, 2011. HB 10-1284 also allowed local licensing authorities to establish limitations on marijuana centers such as restricting the number and location of centers. If they did not establish local limitations, the ordinanc- es defaulted to the requirements established in HB 10-1284 which are as follows: UÊ/…iÊVi˜ÌiÀÊV>˜˜œÌÊLiʏœV>Ìi`Ê܈̅ˆ˜Ê£]äääÊviiÌʜvÊ>ÊÃV…œœ° UÊœÕÀÃʜvʜ«iÀ>̈œ˜Ê“ÕÃÌÊv>ÊLiÌÜii˜Ên\ääÊ>°“°Ê̜ÊÇ\ääÊ«°“°Ê˜œÊ“>ÌÌiÀÊ܅ˆV…Ê`>Þ­Ã®Ê of the week. UÊ/…iÊVՏ̈Û>̜Àʓ>ÞÊÃiÊ˜œÊ“œÀiÊ̅>˜ÊÈÝʈ““>ÌÕÀiÊ«>˜ÌÃÊ̜Ê>Ê«>̈i˜ÌÊ>˜`ÊV>˜˜œÌÊ exceed more than half of the recommended plant count to a patient, primary care- giver, another medical marijuana cultivator, or to a marijuana infused products manufacturer. In other words, if patients grow their own medical marijuana, they can purchase up to six immature plants from a medical marijuana center. If a phy- sician has recommended more than six plants, the patient can only receive half of the additional amount of immature plants at one time. So if a patient were allotted 20 plants, he or she could only purchase 10 of those immature plants at one time. UÊ/…iʏ>ÜÊ«Àœ…ˆLˆÌÃÊ«…ÞÈVˆ>˜Ã]ʓˆ˜œÀÃ]Ê>˜`ʏ>ÜÊi˜vœÀVi“i˜Ìʓi“LiÀÃÊvÀœ“Êœ«iÀ- ating a dispensary. It prohibits certain individuals, including felons convicted of possession, distribution or use of a controlled substance, from obtaining medical marijuana center licenses. UʈVi˜ÃiÃÊ>ÀiÊÛ>ˆ`ÊvœÀÊÕ«Ê̜ÊÌܜÊÞi>Àð UÊ6ˆœ>̈œ˜ÃʜvÊ̅iʓi`ˆV>Ê“>ÀˆÕ>˜>ÊVœ`iÊ>ÀiÊV>ÃÃÊÓʓˆÃ`i“i>˜œÀð25 The legislation required that physicians must have a “bona fide” relationship with a patient, keep records of all patients that are certified by the registry, cannot have an economic interest in marijuana centers, and are required to hold a doctor of medicine or doctor of osteopathic medicine degree from an accredited medical school, as well as meet certain educational and professional requirements. It required caregivers to register with CDPHE for each patient they provide services up to five patients at any time. In addition, patients may only have one caregiver. Patients must 321 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement56Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement obtain registry cards and have them in their possession whenever they possess medical marijuana. CDPHE’s responsibilities include keeping a confidential registry for caregivers and patients and issue medical marijuana registry cards. HB 10-1284 created a vertically integrated, closed-loop commercial medical marijuana regulatory scheme. Cultivating, processing, and manufacturing marijuana as well as retail sales had to be a common enterprise under common ownership.26 The vertical integration model also requires that medical marijuana businesses must cultivate at least 70 percent of the medical marijuana needed for the operation of their business. The remaining 30 percent may be purchased from another licensed medical marijuana center. No more than 500 plants can be cultivated unless the Director of the Medical Marijuana Enforcement Division grants a waiver. If a facility cultivates more mar- ijuana than it needs for its operation, it can sell the excess to other licensed facilities. The vertical integration model also required that medical marijuana businesses must cultivate at least 70 percent of the medical marijuana needed for the operation of their business. The remaining 30 percent may be purchased from another licensed medical marijuana center. For Optional Premises Centers (OPC), no more than 500 plants may be cultivated unless the director of the Medical Marijuana Enforcement Division grants a waiver. If a facility cultivates more marijuana than it needs for its operation, it can sell the excess to other licensed facilities. The legislation established rules for ownership including that the applicant must have been a Colorado resident for two years prior to filing the application. Applicants are fin- gerprinted, and the MMED investigates the qualifications of an applicant or licensee. The MMED checks character references, criminal histories, possible prior rehabilitation and educational achievements.f Article 43.3 also establishes the types of licenses for the cultivation, manufacture, distri- bution and sale of medical marijuana. This article is the foundation for licensing require- ments by the Marijuana Enforcement Division or Medical Marijuana Enforcement Division. A significant provision in HB 10-1284 was the option for cities and counties to allow or prohibit any or all medical marijuana businesses such as medical marijuana centers and production of marijuana infused products. If a local municipality or county wished to exercise this option, it had to be done either by a special election or by a majority of the governing board (i.e., city council or county commissioners). A local governing board had until July 1, 2011, to vote to prohibit medical marijuana centers. There are 64 counties in the state of Colorado. Denver and Broomfield have consolidated their city and county governments. In Figure 3, the counties’ decisions for or against hav- ing medical marijuana centers is shown. Of those counties, 29 of the state’s county board of commissioners voted to ban medical marijuana centers (peach shaded areas). Medical 47 f. If a person has a past felony drug conviction then that person cannot apply for medical marijuana center ownership. For all other felonies, a person can apply for an ownership license five years after the conviction. If someone with a past felony drug conviction applies for ownership of a retail marijuana store, then they must apply 10 years after all felonies. The Marijuana Enforcement Divi- sion also applies a moral character test when determining status of licensing. 322 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 48Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement marijuana centers are allowed by 22 counties (purple shaded areas). Voters enacted a ban in eight counties (green shaded areas). Two counties banned new centers but grand- fathered in existing centers. In another two counties (pink and purple striped areas), the boards of county commissioners enacted a partial ban meaning they authorize only spe- cific types of medical marijuana facilities within their jurisdiction, and in one county (grey and purple striped area), voters elected for a partial ban. Figure 7: Medical Marijuana Centers – Regulatory Status Source: Colorado Department of Revenue, Medical Marijuana Enforcement Division The Colorado Medical Marijuana Code was amended in 2011 to provide for an “infused products manufacturing license.” As of December 1, 2014, statewide there were: UÊxä£Ê“i`ˆV>Ê“>ÀˆÕ>˜>ÊVi˜ÌiÀÃÊ­`ˆÃ«i˜Ã>Àˆiî UÊÇәʓi`ˆV>Ê“>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êœ«iÀ>̈œ˜Ã UÊ£{™Ê“i`ˆV>Ê“>ÀˆÕ>˜>ʈ˜vÕÃi`Ê«Àœ`ÕVÌÊv>V̜ÀˆiÃ28 Patients must apply annually for a medical marijuana card. In January 2009, CDPHE reg- istered 41,039 patients and in December 2014, there were 116,180 patients holding medical marijuana cards, resulting in a 183.1% increase in the number of registered marijuana patients.29 As of January 31, 2014, the reported conditions for obtaining a medical marijuana card were: 323 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement58Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Uʙ{¯ÊvœÀÊÃiÛiÀiÊ«>ˆ˜ÊLÞÊ£äÎ]™£nÊ«>̈i˜Ìà UʣίÊvœÀʓÕÃViÊë>ÓÃÊLÞÊ£{]ÈÎÓÊ«>̈i˜Ìà UÊ£ä¯ÊvœÀÊÃiÛiÀiʘ>ÕÃi>ÊLÞÊ£ä]™ä{Ê«>̈i˜Ìà UÊίÊvœÀÊV>˜ViÀÊLÞÊÎ]££nÊ«>̈i˜Ìà UÊÓ¯ÊvœÀÊÃiˆâÕÀiÃÊLÞÊÓ]£££Ê«>̈i˜Ìà UÊ£¯ÊvœÀÊ}>ÕVœ“>ÊLÞÊ£]£ÎÎÊ«>̈i˜Ìà UÊ£¯ÊvœÀÊV>V…i݈>ÊLÞÊ£]£ÓÈÊ«>̈i˜Ìà UÊ£¯ÊvœÀÊ6É -ÊLÞÊÈÈnÊ«>̈i˜ÌÃ30 SB 10-209: Regulation of the Physician-Patient Relationships for Medical Marijuana Patients SB 10-209 required CDPHE to establish new rules for issuing registry identification cards, documentation for physicians who prescribe medical marijuana, and sanctions for physi- cians who violate the law.31 The law outlines the following requirements for a physician: UÊÕÃÌʅ>ÛiÊ>ÊLœ˜>Êw`iÊ«…ÞÈVˆ>˜‡«>̈i˜ÌÊÀi>̈œ˜Ã…ˆ«Æ UÊÕÃÌÊ«ÀœÛˆ`iÊVœ˜ÃՏÌ>̈œ˜Ê܈̅ʫ>̈i˜ÌÊÀi}>À`ˆ˜}Ê«>̈i˜Ì½ÃÊ`iLˆˆÌ>̈˜}ʓi`ˆV>Ê condition; UÊÕÃÌÊ«ÀœÛˆ`iÊvœœÜ‡Õ«ÊV>ÀiÊ>˜`ÊÌÀi>̓i˜ÌÊÊ̜Ê̅iÊ«>̈i˜ÌÊÊ̜ÊiÃÌ>LˆÃ…ÊivwV>VÞʜvÊ the use of medical marijuana; UÊÕÃÌÊLiʏˆVi˜Ãi`Ê>˜`ʈ˜Ê}œœ`ÊÃÌ>˜`ˆ˜}Ê܈̅Ê̅iÊ œœÀ>`œÊi`ˆV>Ê œ>À`Æ UÊœ`ÃÊ>Ê`œV̜Àʜvʓi`ˆVˆ˜iʜÀÊ`œV̜ÀʜvʜÃÌiœ«>̅ˆVʓi`ˆVˆ˜iÊ`i}ÀiiÊvÀœ“Ê>˜Ê accredited medical school; and UÊ>ÃʘœÌʅ>`ʅˆÃʜÀʅiÀÊ1°-°Ê i«>À̓i˜ÌʜvÊÕÃ̈ViÊvi`iÀ>Ê`ÀÕ}Êi˜vœÀVi“i˜ÌÊ>`“ˆ˜- istration controlled substances registration suspended or revoked at any time. A physician cannot: UÊ"vviÀÊ>Ê`ˆÃVœÕ˜ÌʜÀÊ>˜Þʜ̅iÀÊ̅ˆ˜}ʜvÊÛ>ÕiÊ̜ÊÕÃiÊ>ÃÊ>Ê«>À̈VՏ>ÀÊ«Àˆ“>ÀÞÊV>Ài}ˆÛiÀ]Ê distributor, or other provider of medical marijuana to procure medical marijuana; UÊ ˆ>}˜œÃiÊ>Ê`iLˆˆÌ>̈˜}ÊVœ˜`ˆÌˆœ˜Ê>ÌÊ>ʏœV>̈œ˜Ê܅iÀiʓi`ˆV>Ê“>ÀˆÕ>˜>ʈÃÊ܏`ÆʜÀ UÊœ`Ê>˜ÊiVœ˜œ“ˆVʈ˜ÌiÀiÃÌʈ˜Ê>˜Êi˜ÌiÀ«ÀˆÃiÊ̅>ÌÊ«ÀœÛˆ`iÃʜÀÊ`ˆÃÌÀˆLÕÌiÃʓi`ˆV>Ê marijuana. The legislation established a marijuana review board and will review requests by patients under 21 years of age who are not veterans or military service and are seeking to be placed on the state’s confidential registry for the use of medical marijuana. 49 324 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 50Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 2011: LEGISLATION REGULATING MEDICAL MARIJUANA CENTERS HB11-1043 established rules for the purpose of cultivation, manufacture or sale of medical marijuana or medical marijuana-infused products. Within the law, it sets forth the powers and duties for MMED in reviewing marijuana industry applications and granting licenses. This bill also requires primary caregivers who cultivate medical marijuana for their pa- tients to register their cultivation location with the MMED. 2012: FEDERAL RESPONSE TO THE COLORADO MEDICAL MARIJUANA LAW U.S. Attorney’s Office Issues Warning Letters and Closes Businesses John Walsh, the United States Attorney for the District of Colorado, issued three waves of letters to medical marijuana businesses who were deemed to be in violation of federal law. On January 12, 2012, 23 letters were issued to medical marijuana centers in Colorado advising them they were within 1,000 feet of schools and gave the businesses 45 days to close down before facing potential civil and criminal action.33 By February 2012, all 23 businesses were shut down. In March 23, 2012, the U.S. Attorney’s Office issued a second wave of warning letters to another 25 medical marijuana centers and by May 8, 2012, they all were closed. The third and last wave of letters were sent on August 3, 2012, to another 10 businesses because they were operating within 1,000 feet of schools; these businesses subsequently closed.34 Medical Marijuana Enforcement Division Budget Shortfalls and Staff Reduction The original Medical Marijuana Code licensing model was a “dual-licensing” model, which required that the local licensing authority issue the local license before the state licensing authority could issue the state license. There was a moratorium in place which would not allow any new applicants to apply for licenses until July 1st of 2011. It was de- cided by the state legislators (with the agreement of the DOR and other stakeholders such as the Colorado Municipal League) to extend the moratorium for another year to July 1, 2012. There were reasons why extending the moratorium made sense at that time such as the tremendous workload the MMED had with limited staff and infrastructure. The MMED was in the process of conducting background investigations (over 4,500 investigations) into the individuals and businesses seeking licenses from the state licensing authority with a limited staff. Also, many local licensing authorities had not adopted rules and had not issued local licenses by this time. It had been anticipated that once the moratorium had been lifted, a new round of applications and licenses would be issued. The MED was to obtain operating revenue from licensing and application fees as required through legislation. However, marijuana industries wanting to start up a business had to seek local 325 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement60Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement approval first. Local jurisdictions did not approve the applications as quickly as expect- ed, and there was no “second wave” of renewal applications. Because of this delayed approval process, the revenue into MMED was significantly lower than anticipated. The MMED created numerous positions in its first year. The MMED had been approved to hire approximately 55 full time employees (FTEs). During this time frame, the MMED had hired 38 FTEs only to discover they had to significantly reduce their staff due to the lack of income. As a result, many of the FTEs hired were either relocated to other agencies in the Department of Revenue or laid off. The impact of this staff reduction was not having the personnel needed to conduct the regulation oversight of a significant number of medical marijuana centers already in operation. 2012: RECREATIONAL MARIJUANA LEGISLATION PASSES In February 2012, the initiative for the legalization of recreational marijuana was certified as having the more than 86,000 signatures required to be placed as an amendment on the November 2012 ballot, making Colorado the first in the nation to legalize recreational marijuana if passed.35 The ballot measure read: “Shall there be an amendment to the Colorado constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana; permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana; providing for the licensing of cultivation facilities, product manufac- turing facilities, testing facilities, and retail stores; permitting local governments to regulate or prohibit such facilities; requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana; requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund; and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp?”36 Voter Turnout The citizens of Colorado passed Amendment 64 on November 6, 2012, adding to the state constitution the legalization of marijuana for personal use.37 With a voter turnout of 69%, the amendment passed with 55% of voters approving (see Figure 4). 51 326 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 52Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Figure 8: Map of Counties Passing Amendment 64 Source: Rocky Mountain PBS News Amendment 64: Use and Regulations of Marijuana The law provides for regulation to be similar to that of alcohol regulation. Specifically, only individuals 21 years or older have the ability to: UÊ*œÃÃiÃÃ]ÊÕÃi]Ê`ˆÃ«>Þ]Ê«ÕÀV…>Ãi]ʜÀÊÌÀ>˜Ã«œÀÌʓ>ÀˆÕ>˜>Ê>VViÃÜÀˆiÃʜÀʜ˜iʜ՘ViÊ or less of marijuana; UÊ *œÃÃiÃÃ]Ê}ÀœÜ]Ê«ÀœViÃÃ]ʜÀÊÌÀ>˜Ã«œÀÌʘœÊ“œÀiÊ̅>˜ÊÈÝʓ>ÀˆÕ>˜>Ê«>˜ÌÃ]Ê܈̅Ê̅ÀiiʜÀÊ fewer immature and three mature cannabis plants (i.e., flowering plants) on the prem- ises where the plants are grown. These plants must be in an enclosed, locked space; and cultivation is not conducted openly or publicly, and is not made available for sale; UÊ/À>˜ÃviÀʜ˜iʜ՘ViʜÀʏiÃÃʜvʓ>ÀˆÕ>˜>Ê܈̅œÕÌÊ«>ޓi˜ÌÊ̜Ê>Ê«iÀܘÊ܅œÊˆÃÊÓ£Ê years or older; and UÊÃÈÃÌÊ>˜œÌ…iÀÊ«iÀܘ]ÊÓ£ÊÞi>ÀÃʜÀʜ`iÀ]ʈ˜Ê>˜ÞʜvÊ̅iÊ>LœÛiÊ>VÌð UʏÜ]ÊVœ˜ÃՓ«Ìˆœ˜Êœvʓ>ÀˆÕ>˜>ʈÃÊ«Àœ…ˆLˆÌi`ʈ˜Êœ«i˜Ê>˜`Ê«ÕLˆVÊ>Ài>ÃʜÀʈ˜Ê>ʓ>˜- ner that endangers others. 327 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement62Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement It makes it lawful for people 21 years or older to: UÊ>˜Õv>VÌÕÀi]Ê«œÃÃiÃÃ]ʜÀÊ«ÕÀV…>Ãiʓ>ÀˆÕ>˜>Ê>VViÃÜÀˆiÃʜÀÊÃiÊ“>ÀˆÕ>˜>Ê>VViÃ- sories to a person 21 years or older; UÊ*œÃÃiÃÃ]Ê`ˆÃ«>Þ]ʜÀÊÌÀ>˜Ã«œÀÌʓ>ÀˆÕ>˜>ʜÀʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÆ UÊ*ÕÀV…>Ãiʓ>ÀˆÕ>˜>ʜÀʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÊvÀœ“Ê>ʓ>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êv>VˆˆÌÞÆ UÊ-iÊ“>ÀˆÕ>˜>ʜÀʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÊ̜ÊVœ˜ÃՓiÀÃʈvÊ̅iÊ«iÀܘʅ>ÃÊ>ÊVÕÀÀi˜Ì]Ê valid license to operate a retail marijuana store or is acting in his or her capacity as an owner, employee or agent of a licensed marijuana store; UÊ ÕÌˆÛ>Ìi]ʅ>ÀÛiÃÌ]Ê«ÀœViÃÃ]Ê«>VŽ>}i]ÊÌÀ>˜Ã«œÀÌ]Ê`ˆÃ«>Þ]ʜÀÊ«œÃÃiÃÃʓ>ÀˆÕ>˜>Æ UÊ iˆÛiÀʜÀÊÌÀ>˜ÃviÀʓ>ÀˆÕ>˜>Ê̜Ê>ʓ>ÀˆÕ>˜>ÊÌiÃ̈˜}Êv>VˆˆÌÞÆ UÊ-iÊ“>ÀˆÕ>˜>Ê̜Ê>ʓ>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êv>VˆˆÌÞ]Ê>ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌʓ>˜Õv>VÌÕÀ- ing facility or a retail marijuana store if the person conducting the activities has obtained a current, valid license to operate a marijuana cultivation facility or is acting in his or her capacity as an owner, employee, or agent of a licensed marijua- na cultivation facility; UÊ*>VŽ>}i]Ê«ÀœViÃÃ]ÊÌÀ>˜Ã«œÀÌ]ʓ>˜Õv>VÌÕÀi]Ê`ˆÃ«>ÞʜÀÊ«œÃÃiÃÃʓ>ÀˆÕ>˜>ʜÀʓ>À- ijuana products, delivery to marijuana testing facility, purchase from a marijuana cultivation facility or manufacturing facility if they are acting as an owner, employ- ee, or agency of a licensed marijuana product manufacturing facility; and UÊi>ÃiʜÀÊ>œÜÊ̅iÊÕÃiʜvÊ«Àœ«iÀÌÞʜܘi`]ʜVVÕ«ˆi`]ʜÀÊVœ˜ÌÀœi`ÊLÞÊ>˜ÞÊ«iÀܘ]Ê corporation or other entity for any of the activities conducted lawfully in accor- dance with the above regulations. Marijuana legalization will be regulated by MED, which had to adopt regulations neces- sary for implementation of recreational marijuana no later than July 1, 2013. Additional requirements include UÊ««ˆV>̈œ˜]ʏˆVi˜Ãˆ˜}]Ê>˜`ÊÀi˜iÜ>ÊviiÃÊÅ>Ê˜œÌÊiÝVii`Êfx]äää]Ê܈̅Ê̅iÊÕ««iÀÊ limits adjusted for inflation; UʈVi˜ÃÕÀiʈÃÊvœÀÊ̅iʜ«iÀ>̈œ˜Êœvʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…“i˜ÌÃÆ UÊ-iVÕÀˆÌÞÊÀiµÕˆÀi“i˜ÌÃÊvœÀʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…“i˜ÌÃÆ UÊ,iµÕˆÀi“i˜ÌÃÊ̜ʫÀiÛi˜ÌÊ̅iÊÃ>iʜÀÊ`ˆÛiÀȜ˜Êœvʓ>ÀˆÕ>˜>Ê>˜`ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÊ to individuals under the age of 21; UÊ>LiÊÀiµÕˆÀi“i˜ÌÃÊvœÀʓ>ÀˆÕ>˜>Ê>˜`ʓ>ÀˆÕ>˜>ʈ˜vÕÃi`Ê«Àœ`ÕVÌÃÆ UÊi>Ì…Ê>˜`ÊÃ>viÌÞÊÀi}Տ>̈œ˜ÃÊ>˜`ÊÃÌ>˜`>À`ÃÊvœÀÊ̅iʓ>˜Õv>VÌÕÀiʜvʓ>ÀˆÕ>˜>Ê products and the cultivation of marijuana; UÊ,iÃÌÀˆV̈œ˜Ãʜ˜Ê̅iÊ>`ÛiÀ̈Ș}Ê>˜`Ê`ˆÃ«>Þʜvʓ>ÀˆÕ>˜>Ê>˜`ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÆ UÊ ˆÛˆÊ«i˜>ÌˆiÃÊvœÀÊv>ˆÕÀiÊ̜ÊVœ“«ÞÊ܈̅ÊÀi}Տ>̈œ˜ÃÊiÃÌ>LˆÃ…i`ÊLÞÊ ",Æ 53 328 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 54Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement UÊ/>ÝʏiÛÞʘœÌÊ̜ÊiÝVii`Ê£xÊ«iÀVi˜ÌÊ«ÀˆœÀÊ̜Ê>˜Õ>ÀÞÊ£]ÊÓä£Ç]Ê>ÌÊ܅ˆV…Ê̈“iÊ̅iÊi˜iÀ- al Assembly will determine a rate to apply thereafter; the first $40 million in revenue raised annually from excise tax will be credited to the Public School Capital Con- struction Assistance Fund; and a competitive application process which will con- sider whether the applicant has: – Prior experience producing or distributing marijuana or marijuana products in the locality in which the applicant seeks to operate a marijuana establishment, and – Complied consistently with the Colorado Medical Marijuana Code. Local ordinances or regulations specifying the entity within the locality that is responsible for processing applications submitted for licenses to operate a marijuana establishment within the boundaries of the locality had to be enacted no later than October 1, 2013. Local government could enact ordinances or regulations that are not in conflict with the existing law that determine: UÊ/ˆ“i]Ê«>Vi]ʓ>˜˜iÀÊ>˜`ʘՓLiÀʜvʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…“i˜ÌÃÆÊ UÊ*ÀœVi`ÕÀiÃÊvœÀÊ̅iʈÃÃÕ>˜Vi]ÊÃÕëi˜Ãˆœ˜]Ê>˜`ÊÀiۜV>̈œ˜ÊœvÊ>ʏˆVi˜ÃiʈÃÃÕiÃÊLÞÊ̅iÊ locality; UÊ-V…i`ՏiʜvÊ>˜˜Õ>Êœ«iÀ>̈˜}]ʏˆVi˜Ãˆ˜}]Ê>˜`Ê>««ˆV>̈œ˜ÊviiÃÊvœÀʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…- ments; UÊ ˆÛˆÊ«i˜>ÌˆiÃÊvœÀÊۈœ>̈œ˜ÊœvÊ>˜ÊœÀ`ˆ˜>˜ViʜÀÊÀi}Տ>̈œ˜Ê}œÛiÀ˜“i˜ÌÊ̅iÊ̈“i]Ê place, and manner of marijuana establishment operations; and UÊ"«Ìˆ˜}ʈ˜ÊœÀʜÕÌʜvÊ>œÜˆ˜}ʓ>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êv>VˆˆÌˆiÃ]ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌʓ>˜- ufacturing facilities, marijuana testing facilities, or retail marijuana stores through ordinance by the local governing authority (i.e., city council or board of commission- ers) or if through public vote, on a general election ballot during an even numbered year. Local governing authorities can remove or approve marijuana establishments any time or as many times as they deem is in the best interest of their community. An employer is not required to permit or accommodate the use, consumption, possession, transfer, display, transportation sale or growing of marijuana in the workplace. Employers may have policies restricting the use of marijuana by employees. A person, employer, school, hospital, detention facility, corporation or any other entity who occupies, owns, or controls a property may prohibit or regulate the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. In addition, the law addresses hemp40 as follows: Uʘ`ÕÃÌÀˆ>Ê…i“«ÊŜՏ`ÊLiÊÀi}Տ>Ìi`ÊÃi«>À>ÌiÞÊvÀœ“ÊÃÌÀ>ˆ˜ÃʜvÊV>˜˜>LˆÃÊ܈̅ʅˆ}…iÀÊ delta-9-tetrahydrocannabinol (THC) concentrations that do not exceed three-tenths percent on a dry weight basis; and UÊ œÌʏ>ÌiÀÊ̅>˜ÊՏÞÊ£]ÊÓä£{]Ê̅iÊi˜iÀ>ÊÃÃi“LÞÊ܈Êi˜>VÌʏi}ˆÃ>̈œ˜Ê}œÛiÀ˜ˆ˜}Ê the cultivation, processing and sale of industrial hemp.g g. The Industrial Hemp Regulatory Program Act was passed through the Hemp Act of 2014, Title 35 Agriculture, Article 61, Industrial Hemp Regulatory Program, C.R.S. 35-61-109. The Colorado Department of Agriculture is responsible for oversight; rules pertaining to the administration and enforcement of this act is established through 8 CCR 1203-23. 329 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement64 2014: RECREATIONAL MARIJUANA STORES OPEN FOR BUSINESS Recreational marijuana stores opened for business on January 1, 2014. Thirty-seven cities and towns have opted out of allowing recreational marijuana stores (see Figure 5), includ- ing Colorado Springs, the state’s second largest city, and Greeley, the third largest city. Fifteen cities and towns have allowed the recreational sales and cultivation, including Denver, the largest city in Colorado. Six counties have a moratorium on allowing stores, five counties have allowed the existing medical marijuana centers to also sell for recre- ational purposes, and one county allows recreational cultivation only. Figure 9: Locations for Towns and Cities Opting out of Recreational Retail Stores Source: Colorado Department of Revenue, Marijuana Enforcement Division41 As of December 2014, there are: UÊÎääÊi`ˆV>Ê>ÀˆÕ>˜>Ê i˜ÌiÀÃʈ˜Ê i˜ÛiÀ UÊ{™ÈÊi`ˆV>Ê>ÀˆÕ>˜>Ê i˜ÌiÀÃÊÃÌ>Ìi܈`i UÊÓ£ÓÊÀiÌ>ˆÊÃ̜Àià UÊÓǙÊVՏ̈Û>̈œ˜Êœ«iÀ>̈œ˜Ã UÊÈÎʈ˜vÕÃi`Ê«Àœ`ÕVÌÊv>V̜Àˆià UÊnʏ>LœÀ>̜ÀÞÊÌiÃ̈˜}Êv>VˆˆÌˆiÃ42 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement55 330 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 56Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement BANKING CHALLENGES FOR COLORADO MARIJUANA INDUSTRY The Cole Memorandum on Marijuana Related Financial Crimes As medical marijuana centers began making money, opening a bank account was not possible since banks, which are federally regulated, cannot receive funds obtained ille- gally under federal law. According to law enforcement officials in the Police Foundation focus groups, these business owners pay for everything in cash and have to store their revenue in their own safes. This has posed a safety risk for the owner, employees, and patrons who are at risk of being robbed either at the business, in the parking lot, or while being followed to another location. In response to the banking problem, Deputy U.S. Attorney General James M. Cole re- leased a memorandum on February 14, 2014, titled “Guidance Regarding Marijuana Re- lated Financial Crimes.” Besides reiterating the enforcement of the Controlled Substance Act, Cole outlined the expectations of the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) for financial institutions providing services to marijua- na-related businesses.43 Cole’s memo reiterated the eight federal priorities in enforcing the Controlled Substance Act Enforcement: UÊ ˆÃÌÀˆLṎœ˜Êœvʓ>ÀˆÕ>˜>Ê̜ʓˆ˜œÀÃÆ UÊ,iÛi˜ÕiÊvÀœ“Ê̅iÊÃ>iʜvʓ>ÀˆÕ>˜>ÊvÀœ“Ê}œˆ˜}Ê̜ÊVÀˆ“ˆ˜>Êi˜ÌiÀ«ÀˆÃiÃ]Ê}>˜}Ã]Ê>˜`Ê cartels; UÊ ˆÛiÀȜ˜Êœvʓ>ÀˆÕ>˜>ÊvÀœ“ÊÃÌ>ÌiÃÊ܅iÀiʈÌʈÃʏi}>Ê՘`iÀÊÃÌ>Ìiʏ>ÜÊʈ˜ÊܓiÊvœÀ“ÊÌœÊ other states; UÊ-Ì>Ìi‡>Õ̅œÀˆâi`ʓ>ÀˆÕ>˜>Ê>V̈ۈÌÞÊvÀœ“ÊLiˆ˜}ÊÕÃi`Ê>ÃÊ>ÊVœÛiÀʜÀÊÊ«ÀiÌiÝÌÊvœÀÊ̅iÊ trafficking of other illegal drugs or other illegal activity; UÊ6ˆœi˜ViÊ>˜`Ê̅iÊÕÃiʜvÊwÀi>À“Ãʈ˜Ê̅iÊVՏ̈Û>̈œ˜Ê>˜`Ê`ˆÃÌÀˆLṎœ˜Êœvʓ>ÀˆÕ>˜>ÆÊ UÊ ÀÕ}}i`Ê`ÀˆÛˆ˜}Ê>˜`Ê̅iÊiÝ>ViÀL>̈œ˜Êœvʜ̅iÀÊ>`ÛiÀÃiÊ«ÕLˆVʅi>Ì…ÊVœ˜ÃiµÕi˜ViÃÊ associates with marijuana use; UÊÀœÜˆ˜}ʜvʓ>ÀˆÕ>˜>ʜ˜Ê«ÕLˆVʏ>˜`ÃÊ>˜`Ê̅iÊ>ÌÌi˜`>˜ÌÊ«ÕLˆVÊÊÃ>viÌÞÊ>˜`Êi˜ÛˆÀœ˜- mental dangers posed by marijuana production on public lands; and UÊ>ÀˆÕ>˜>Ê«œÃÃiÃȜ˜ÊœÀÊÕÃiʜ˜Êvi`iÀ>Ê«Àœ«iÀÌÞ°Ê Cole further summarized statutes for prosecuting financial institutions that accept money from the marijuana industry, specifically related to: UÊœ˜iÞʏ>՘`iÀˆ˜}ÊÃÌ>ÌÕÌiÃÊ­£nÊ1°-° °ÊÅÅÊ£™xÈÊ>˜`Ê£™xÇ®]ʓ>Žˆ˜}ʈÌÊ՘>ÜvՏÊ̜Êi˜- gage in financial and monetary transactions with the proceeds from, among other things, marijuana-related violations of the Controlled Substance Act. UÊ1˜ˆVi˜Ãi`ʓœ˜iÞÊÌÀ>˜Ã“ˆÌÌiÀÊÃÌ>ÌÕÌiÊ­£nÊ1°-° °ÊÅÊ£™Èä®]Ê܅ˆV…Ê“>ŽiÃʈÌʈi}>ÊÌœÊ engage in any transactions by or through a money transmitting business involving funds “derived from” marijuana-related conduct 331 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement66Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement UÊ,iVœÀ`ʎii«ˆ˜}ʈ˜Ê>VVœÀ`>˜ViÊ̜Ê̅iÊ ÕȘiÃÃÊ-iVÀiVÞÊVÌʜvÊ£™ÇäÊÜÊ̅iÊ1°-°Ê}œÛ- ernment can detect and prevent money laundering, tax evasion, or other criminal activities.44 The U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released, on the same day as the Cole memo, their expectations regarding marijuana-re- lated business.45 The Four Models for Regulating Medical and Recreational Marijuana As a result of the passages of Amendments 20 and 64, four types of marijuana regulation and oversight models emerged (see Figure 6). Having different models and regulatory agencies providing oversight has created challenges. The first model began with the pas- sage of Amendment 20: the caregiver/patient model for medical marijuana. The first model began with the passage of Amendment 20: the caregiver/patient model for medical marijuana. W. Lewis Koski, Director of the Marijuana Enforcement Division, wrote that “the affirmative defense (in Amendment 20) was narrowly tailored to patients who were suffering from debilitating medical conditions provided they could prove that a doctor was recommending the use of cannabis to help treat the condition (Colorado Constitution, Art. XVII, § 14)….This model was not intended to take on the tone of a com- mercial market and it was my understanding that the fear of federal intervention kept most of the caregivers operating underground. Since this was relatively unique public policy at the time, it stands to reason that cultivators/caregivers were unwilling to come from out of the shadows and make themselves known to law enforcement since after all, the cultivat- ing, manufacturing, distribution and possession of any marijuana was still criminal under federal law (Controlled Substances Act). It remains so today.”46 With the proliferation of medical marijuana centers, the second model, Medical Commer- cial, was established for licensing and regulating the medical marijuana industry. When Amendment 64 was passed, the recreational models were established. The Medical and Recreational Commercial models are regulated by the MED and systems are in place for monitoring the commercial industry. The regulation by local law enforcement of the Caregiver/Patient and the Recreation- al Home Grows models is more challenging. Local law enforcement agencies are not authorized to randomly perform home checks. They are bound by the law and cannot investigate a home grow unless a complaint has been filed or if the officer has some probable cause and the resident willingly allows the officer to enter the home. There is nothing that would allow or prohibit local law enforcement to conduct “knock & talks” at a caregiver location, but they would need to establish probable cause to execute a crim- inal search if they believe crimes are being committed. Some municipalities are enacting ordinances which prohibit noxious odors and the number of plants allowed to be grown residentially, and local law enforcement can use those ordinances to address neighbor- hood complaints.47 57 332 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 58Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Figure 10: Four Models Created through Amendments 20 and 64 Source: Adapted from Chief Marc Vasquez48 Medical Commercial – Licensing for businesses, owners and employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Caregiver/Patient – Caregivers who can grow for up to 5 patients and themselves – Routinely see large grows – Patients are licensed by Colorado Department of Public Health and Environment – Caregiver regulatory authority: Colorado Department of Health and Environment and local law enforcement Recreational Commercial – Licensing for businesses, owners and employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Recreational Home Grows – Anyone 21 years of age or older can grow up to 6 plants – No licensing required – Regulatory authority: local law enforcement 333 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement68Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES FOR APPENDIX 1 1 Comprehensive Drug Abuse Prevention and Control Act § Statute 84 (1970) 2 Note: According to the Controlled Substances Act of 1970, a Schedule I controlled substance is defined as, (A) The drug or other substance has a high potential for abuse; (B) The drug or other substances has no currently accepted medical use in treatment in the United States; and (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. 3 A Guide to Drug-Related State Ballot Initiatives. (n.d.). Colorado Amendment 20. Retrieved January 1, 2015 from http://www.nationalfamilies.org/guide/colorado20.html; Vasquez, Marc, “Marijuana in Colorado,” PowerPoint presentation to Metro State University, October 2014. 4 “Medical Marijuana Registry Program Update (as of December 31, 2008),” Colorado Department of Public Health and Environment. 5 “Medical Marijuana Registry Program Update (as of December 31, 2009), Colorado Department of Public Health and Environment. 6 Denver Marijuana Initiative Winning Again: Question 100 Makes Pot Enforcement Low Priority. (2007, November 7). The Denver Channel. Retreived from http://www.thedenverchannel.com 7 Colorado Ski Town Votes to Legalize Marijuana. (2009, November 4). NBC NEWS. Retrieved from www.nbcnews.com 8 People v. Clendenin, No. 08CA0624, Col App 2009.; Colorado appeals court: “Caregiver” must do more than grow pot. (2009,October 29). The Denver Post. Retrieved from www.denverpost.com 9 People v. Clendenin, No. 08CA0624, Col App 2009. 10 The Open Meetings Act, C.R.S. § 24-6-402 http://www.rcfp.org/colorado-open-government- guide/i-statute-basic-application/d-what-constitutes-meeting-subject-law/2-. 11 The Colorado State Administrative Procedures Act, C.R.S. § 24-4-101 et seq. http://www.sos. state.co.us/pubs/info_center/laws/Title24Article4.html#24-4-103 12 People v. Clendenin, No. 08CA0624, Col App 2009. 13 People v. Clendenin, No. 08CA0624, Col App 2009. 14 Ingold, J. (2009, November 10). Judge Tosses Out Health Board Decision on Medical Pot. The Denver Post. Retrieved from www.denverpost.com 15 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org . 16 Eric Holder Says DOJ will let Washington, Colorado Marijuana Laws Go into Effect. (2013, August 29). Huffington Post. Retrieved from http://www.huffingtonpost.com 17 Ogden, D.W. (2009). Investigations and prosecutions in States authorizing the medical use of marijuana [Memorandum] Washington, DC: Department of Justice. 59 334 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 60Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 18 Ogden, D.W. (2009). Investigations and prosecutions in States authorizing the medical use of marijuana [Memorandum] Washington, DC: Department of Justice. 19 Chief Marc Vasquez, Chief of Police, Erie, CO. 20 Colorado Department of Health and Environment, Medical Marijuana Registry Program Update reports for 2001, 2003, 2004, 2005, 2006, 2007, 2008 and 2009, https://www.colorado.gov/. 21 Ibid., https://www.colorado.gov/. 22 Department of Revenue, Marijuana Enforcement Division. 23 Map created by Lt. Ernie Martinez, Director-At-Large for the National Narcotic Officers’ Associations’ Coalition. 24 Regulation of Medical Marijuana Act § 10-0773.02. 25 Kelty, K. (2010, August 11). Colorado’s Medical Marijuana Law. Colorado Legislative Council Staff, Issue Brief retrieved from http://www. colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application/ pdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251649691480&ssbinary=true 26 Finlaw, J., & Brohl, B. (2003, March). Task Force Report on the Implementation of Amendment 64. Retrieved from http://www.colorado.gov/ 27 Finlaw, J., & Brohl, B. (2003, March). Task Force Report on the Implementation of Amendment 64. Retrieved from http://www.colorado.gov/ 28 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org. 29 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org. 30 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for marijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/ 31 State of Colorado, Senate Bill 10-209 32 State of Colorado, House Bill 11-1043 33 Marc Vasquez, Chief of Police, Erie, CO, PowerPoint presentation at Metro State College, October 2014; 25 Colorado Medical Marijuana Dispensaries Close after Warning. (2012, May 9). The Denver Post. Retrieved from www.denverpost.com 34 U.S. Department of Justice, Drug Enforcement Administration. (2011, September 25). Third Wave of Warning Letters Results in Closure of all 10 Targeted Marijuana Dispensaries within 1,00 Feet of a School. Retrieved from http://www.dea.gov/divisions/den/2012/den092512.shtml. 335 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement70Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 35 Ingold, J. (2012, February 27). Initiative to Legalize Marijuana Makes Ballot in Colorado. The Denver Post. Retrieved from www.denverpost.com 36 “Amendment 64: Use and Regulation of Marijuana,” Legislation State of Colorado, accessed November 3, 2014, http://www.leg.state.co.us/LCS/Initiative%20Referendum/1112initrefr. nsf/c63bddd6b9678de787257799006bd391/cfa3bae60c8b4949872579c7006fa7ee/$FILE/ Amendment%2064%20-%20Use%20&%20Regulation%20of%20Marijuana.pdf. 37 State of Colorado, http://www.leg.state.co.us/LCS/Initiative%20Referendum/1112initrefr. nsf/c63bddd6b9678de787257799006bd391/cfa3bae60c8b4949872579c7006fa7ee/$FILE/ Amendment%2064%20-%20Use%20&%20Regulation%20of%20Marijuana.pdf 38 Vaughan, K. & Hubbard, B. (2012, November 7). Election 2012: Colorado Counties, Presidential, Marijuana Results. PBS News. Retrieved from http://inewsnetwork.org/2012/11/07/election-2012- colorado-counties-presidential-medical-marijuana-results/#files. 39 Colorado Department of Agriculture. (n.d.). Industrial Hemp. Retrieved from http://www.colorado. gov/cs/Satellite/ag_Plants/CBON/1251644613180 40 Colorado Department of Agriculture. (n.d.). Industrial Hemp. Retrieved from http://www. colorado.gov/cs/Satellite/ag_Plants/CBON/1251644613180 41 Colorado Department of Revenue, Medical Marijuana Enforcement Division. 42 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org. 43 Cole, J.M. (2013, August 29). Guidance regarding marijuana enforcement [Memorandum], Washington, DC: U.S. Department of Justice. 44 “Financial Crimes Enforcement Network (FinCEN’s) Mandate from Congress,” 31.U.S.C. 310, accessed October 29, 2014, http://www.fincen.gov/statutes_regs/bsa/. 45 Department of Treasury Financial Crimes Enforcement Network. (2014, February 14). BSA expectations regarding marijuana-related businesses. Retrieved from http://www.fincen.gov/ statutes_regs/guidance/pdf/FIN-2014-G001.pdf 46 Koski, W. Lewis, 2014, excerpt from doctorial research for Walden University. 47 Vasquez, Marco, Interview December 3, 2014. 61 336 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 62Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement This glossary contains terms frequently used in the discussion of the new medical marijuana and recreational marijuana laws approved by Colorado voters in Amendment 20 and Amendment 64. It also includes a number of terms frequently used by and about Colorado law enforcement and their involvement in the new legal marijuana laws. The intent of this glossary is to assist the reader with terms used in this report that may not be familiar to those outside of the field. These terms are frequently used in the marijuana industry and law enforcement when discussing marijuana. Amendment 20 – Colorado voters passed “Medical Use of Marijuana 2000,”allowing persons suffering from debilitating medical conditions to legally grow and use marijuana under strict registry guidelines. This amended Article XVIII of the Colorado Constitution. Amendment 64 – Citizens of Colorado passed the “Use and Regulation of Marijuana” amendment in 2013, allowing the recreational use of marijuana and licensing for cultivation facilities, product manufacturing facilities, testing facilities, and retail stores. This amended Article XVIII of the Colorado Constitution. Black Market – The sale or illegal trade of consumer goods that are scarce or heavily taxed. Black market marijuana is considered controlled by criminals and drug cartels. http://www.businessdictionary.com/definition/black-market.html Caregiver – A person managing the well being of a patient with a debilitating health condition. This person cannot only deliver medical marijuana or marijuana paraphernalia, but must also provide other patient care (i.e., transportation, housekeeping, meal preparation, shopping, and arranging access to medical care). The person providing care must be 18 years of age or older; cannot be the patient or the patient’s physician; and cannot have a primary caregiver of their own. https://www.colorado.gov/pacific/cdphe/ medical-marijuana-caregiver-eligibility-and-responsibilities Colorado Department of Public Health and Environment (CDPHE) – Legislative appointed agency that registers medical marijuana patients and caregivers. Concentrates – Extracted from marijuana, it usually has higher levels of THC through a chemical solvent process (most widely using butane). Depending upon what is done during the extraction process, it can produce different forms of the THC product, such as oil, wax, and shatter. These concentrates are used in marijuana-infused products, such as food and drink products. These concentrates can also be smoked, dabbed, or used in oils or tinctures. Diversion – Is delivering, distributing, or dispensing of a drug illegally. http://www. deadiversion.usdoj.gov Drug Cartel – A criminal organization involved in drug trafficking operations. APPENDIX 2: GLOSSARY OF TERMS 337 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement72Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Edibles – Marijuana infused products in the forms of food or drinks, such as butter, pizza, snacks, candies, soda pop, and cakes. Extraction Processes – The distillation process to extract THC resin from the marijuana plant using a liquid-to-liquid process through water or chemical solvents. Chemical solvents are more popular for extractions (i.e., butane, hexane, isopropyl alcohol, or methanol) because a higher chemical extraction of THC can be obtained. Chemical extraction processes are more dangerous if not done in a professional and controlled environment because gas fumes from the process can ignite on fire and explode. Gray Market – A market of semi-legal marijuana produced by caregivers and anybody over 21 who grows their own marijuana. The marijuana in the gray may be legal or grown in legal operations, but its sale circumvents authorized channels of distribution. Hashish and Hash Oil – To obtain higher levels of THC, the flower from the Cannabis sativa is concentrated through distraction processes, which results in a resin called hashish or a sticky, black liquid called hash oil. Bubble hash is produced through a water process. Industry-related Crime – Offenses directly related to licensed marijuana facilities. Marijuana – This is the dried leaves, flowers, stems, and seeds from the cannabis plant. It is usually smoked in hand-rolled cigarettes (also called joints) or in pipes or water pipes (also known a bongs). It can also be mixed in food. When smoked or ingested, it alters perceptions and mood; impairs coordination; and creates difficulty with thinking and problem solving and disrupts learning and memory. http://www.drugabuse.gov/ publications/drugfacts/marijuana). Long-term use can contribute to respiratory infection, impaired memory, and exposure to cancer-causing compounds (http://www.samhsa.gov/ disorders/substance-use). Marijuana Cultivations – This is the propagation of cannabis plants beginning with cuttings from other cannabis plants or from seed. In Colorado, all plants must be started from cuttings. Marijuana Infused Products – Foods, oils, and tinctures containing THC available for consumer purchase. Marijuana Product Manufacturers – A licensed business through the Department of Revenue, Medical Marijuana Division, that produces and sells concentrates, topicals (e.g., massage oils and lip balms), and edibles (e.g., cakes, cookies, candies, butters, meals, and beverages). Medical Marijuana – The use of cannabis for the purposes of helping to alleviate symptoms of those persons suffering from chronic and debilitating medical conditions. Medical Marijuana Center (Centers) and Medical Marijuana Dispensaries (Dispensaries) – The reference to medical marijuana businesses that sell to registered patients has interchangeably been called ‘medical marijuana dispensaries’ and ‘medical marijuana centers.’ Dispensaries connote a doctor’s prescription to receive medication. 63 338 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 64Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado doctors do not prescribe medical marijuana, they simply make a certification that recommends the number of plants a patient needs. Since a prescription is associated with dispensaries, the reference to medical marijuana businesses as centers has become the preferable terminology. The medical marijuana businesses are the “center” of a financial transaction between patient and the grow facility. Medical Marijuana Conditions – A person wanting to register for a medical marijuana card must have one of the following debilitating or chronic conditions: cancer, glaucoma, HIV or AIDS Positive, Cachexia (also known as wasting syndrome in which weight loss, muscle atrophy, fatigue, weakness and significant loss of appetite), persistent muscle spasms, seizures, severe nausea, and severe pain. https://www.colorado.gov/pacific/ sites/default/files/CHEIS_MMJ_Debilitating-Medical-Conditions.pdf Medical Marijuana Division (MED) – Located in the Colorado Department of Revenue, the MED licenses and regulates medical and retail marijuana industries. The MED implements legislation, develops rules, conducts background investigations, issues business licenses and enforces compliance mandates. https://www.colorado.gov/enforcement/ marijuanaenforcement Non-industry Crime – Marijuana taken during the commission of a crime that did not involve a licensed marijuana facility Patient Medical Marijuana Registration Card – After a patient’s application is submitted, reviewed, and approved by the Colorado Department of Public Health and Environment, the patient receives a red license card to be presented to registered Medical Marijuana Centers for purchasing marijuana. The patient must renew annually to remain with the registry. https://www.colorado.gov/pacific/cdphe/renew-your-medical-marijuana- registration-card Physician’s Recommendation – Physicians must qualify to write patient recommendations for medical marijuana. These qualifications include having a bona fide physician-patient relationship and a good standing with the medical licensing board. Physicians must certify annually with the Colorado Department of Public and Health Environment in order to assist people wanting to receive medical marijuana. Physicians do not prescribe marijuana, but rather provide a marijuana plant count recommendation for the patient based on the severity of the patient’s condition. A physician is not limited in the number of plants recommended in a year for a patient. If a physician does not select a marijuana plant count option, then the patient will receive the standard 6-plants/2 ounces of useable marijuana as defined through legislation. https://www.colorado.gov/pacific/sites/default/ files/Medical-Marijuana-Registry_Physician-Newsletter_Mar2012.pdf Probable Cause – A reasonable and factual basis for believing a crime has been committed in order to make an arrest, conduct a search, or obtain a warrant. Recreational marijuana – The use of cannabis as a pastime to alter a person’s state of consciousness. 339 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement74Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Red Card – This is slang for a patient medical marijuana registration card because the license color is red. Registered Medical Marijuana Patient – Someone who has gone through the approval process and obtains a licensed medical marijuana patient card from the Colorado Department of Public Health and Environment. Retail marijuana stores – Licensed stores that can sell marijuana, paraphernalia, and marijuana infused-products. Seed-to-sale – The tracking process for medical marijuana from either the seed or immature plant stage until the medical marijuana or medical infused-product is sold to a customer at a medical marijuana center or is destroyed. This tracking system is used by the Department of Revenue, Marijuana Enforcement Division, to monitor licensed marijuana businesses inventory. https://www.colorado.gov/pacific/sites/ default/files/Retail%20Marijuana%20Rules,%20Adopted%20090913,%20Effective%20 101513%5B1%5D_0.pdf Schedule I Controlled Substances – These drugs, substances or chemicals are not currently accepted for medical use and have a high potential for drug abuse as defined in the Substance Control Act of 1970. These are the most dangerous drugs that can potentially cause severe psychological or physical dependency. Drugs in this category include: heroin, LSD, marijuana, ecstasy, methaqualone, and peyote. http://www.dea.gov/ druginfo/ds.shtml Substance Control Act of 1970 – This law regulates the manufacturing and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and illicit production of controlled substances. These drugs are placed within one of the five schedules based on medicinal value, harmfulness, and potential for abuse or addiction. THC (Tetrahydrocannabinol) – THC is the mind-altering chemical found in the Cannabis sativa plant (which is one species of the hemp), specifically in the leaves, flowers, stems, and seeds. Vape Pens – A battery operated heating element that vaporizes liquid marijuana oils. 65 340 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 66Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement APPENDIX 3: COLORADO ASSOCIATION OF CHIEFS OF POLICE MARIJUANA POSITION PAPER 341 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement76Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement67 342 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 68Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement343 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement78Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement69 344 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 70Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Marijuana remains a Schedule I controlled substance and is an illegal drug under the Federal Controlled Substance Act. Federal officials have made it clear on numerous occasions that federal law enforcement will continue to enforce the law when activities involving marijuana amount to a violation of federal statutes. However, the U.S. Department of Justice has since 2009 set out parameters under which the federal law may be enforced within states, and has otherwise allowed states to enforce their own laws regarding medical marijuana, and now in Colorado, recreational use of marijuana. The guidance regarding federal enforcement was first laid out in a 2009 memo from Deputy Attorney General David W. Ogden to federal prosecutors, attached below. Following this guidance, federal law enforcement in 2012 informed a total of 58 marijuana businesses in Colorado that they were in violation of the conditions the federal government has laid out under which it would consider a marijuana operation illegal. All of these businesses agreed to close without prosecution. This guidance policy was reinforced by a second memo issued in 2014 by Deputy Attorney General James M. Cole, also attached below. This memo expanded the guidelines to inform financial institutions of how federal money laundering laws will be enforced with regards to accounts for marijuana businesses that are deemed legal at the state level. This latter guidance was supported by a memo (also attached) from the Financial Crimes Enforcement Network of the U.S. Department of Treasury, also clarifying the laws on money laundering with regard to marijuana businesses deemed legal under state laws. Federal policy continues to evolve as more states allow some form of legal marijuana. The U.S. Congress, in the 2015 Appropriations omnibus funding bill, approved language barring any federal agency from using funds to enforce laws against medical marijuana operations deemed legal under state laws; however, this provision will expire at the end of the fiscal year on September 30, 2015. APPENDIX 4: FEDERAL GUIDANCE MEMOS ON STATE MARIJUANA LEGALIZATION LAWS 345 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement80Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement71 346 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 72Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement347 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement82Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement73 348 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 74Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement349 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement84Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement75 350 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 76Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement351 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement86Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement77 352 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 78Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement353 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement88Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement79 354 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 80Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement355 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement90Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement81 356 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 82Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement357 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement92Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement83 358 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 84Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement359 Police Foundation 1201 Connecticut Avenue N.W. Washington, DC 20036 (202) 833-1460 360 361 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:216-1875 Name: Status:Type:Ordinances and Action Items Agenda Ready File created:In control:7/27/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Consideration of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Ordinance B - Existing Ordinance Proposed for Rescinding C - FEMA Community Assistance Visit letter Action ByDate Action ResultVer. City Council10/18/20162 Subject:ConsiderationofanordinancetorepealandreplaceCupertinoMunicipalCode Chapter 16.52 regarding prevention of flood damage for properties within the City ConductthefirstreadingofOrdinanceNo.16-2154:"AnOrdinanceoftheCityCouncilofthe CityofCupertinotorepealandreplaceCupertinoMunicipalCodeChapter16.52regarding prevention of flood damage for properties within the City" CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™362 PUBLIC WORKS DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: October 18, 2016 Subject Consideration of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City. Recommended Action Conduct the first reading of the draft ordinance: "An ordinance of the City Council of the City of Cupertino to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City" Discussion Section 16.52 of the Cupertino Municipal Code governs prevention of flood damage and was established in 1980. There have been amendments to the ordinance since the initial adoption. This item is being brought before City Council to address revisions to the Federal Emergency Management Agency’s (FEMA) regulations regarding floodplain management. The need for these revisions were brought to the City’s attention by a FEMA representative who audited the City’s program through the Community Assistance Visit program, which occurs approximately every 5 years. Staff met with FEMA’s representative on July 14, 2015. Based on the information provided by the City and a thorough review of the City’s policies, standards and flood protection ordinance, FEMA provided a letter to the City on June, 6, 2016 (See Attachment C) which requested additional documentation to demonstrate the City’s compliance with FEMA Regulations, and requested that the City’s flood protection ordinance be updated to address changes that have occurred over time with FEMA’s model ordinance . All documentation requested within the letter has been provided to FEMA, and the ordinance under consideration has been revised to address the change in regulations pointed out by FEMA. The proposed ordinance is a comprehensive revision that substantially conforms to the latest California Model Ordinance, while incorporating the City of Cupertino’s policies 363 and protocols. It should be noted that the model ordinance is updated by FEMA approximately every 10 years. The last update to the model ordinance by FEMA was performed in 2006. A new update has not yet been released by FEMA, but could be released at some point in the near future. The key revisions that this ordinance incorporates are as follows:  Add a Citation of Statutory Authorization.  Add key definitions to the Ordinance.  Revise two definitions to comply with current FEMA standards.  Include a section that references subsequent revisions and amendments to the flood maps and Flood Insurance Studies.  Add a requirement that the City must submit to FEMA new floodplain related technical data within 6 months of the information being provided to the City.  Update the Ordinance to match California Floodplain Management variance criteria.  Add a requirement to include base flood elevation data for subdivision proposals or developments greater than 50 lots or 5 Acres.  Add a requirement for one foot of freeboard within Flood Zone AO.  Add requirements regarding flood openings in structures with more than one enclosed area.  Add manufactured home and recreational vehicle requirements to Ordinance. Sustainability Impact None Fiscal Impact: No fiscal impact is expected from this proposed ordinance. _____________________________________ Prepared by: Chad Mosley, Senior Engineer Reviewed by: Timm Borden, Director of Public Works Approved for Submission by: David Brandt, City Manager Attachments: A- Draft Ordinance B- Existing Ordinance Proposed for Rescinding C- FEMA Community Assistance Visit letter 364 1 ORDINANCE NO. 16- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO RESCINDING AND REENACTING CUPERTINO MUNICIPAL CODE CHAPTER 16.52 REGARDING PREVENTION OF FLOOD DAMAGE FOR PROPERTIES WITHIN THE CITY WHEREAS, this Ordinance is determined to be not a project under the requirements of the California Quality Act of 1970, together with related State CEQA Guidelines (collectively, “CEQA”) in that proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. WHEREAS, the City Council is the decision-making body for this Ordinance; and WHEREAS, the City Council before taking action on this Ordinance has reviewed the not a project determination and exemption, and using its independent judgment, determines the Ordinance to be not a project or exempt from CEQA as stated above; NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: 16.52.001 Statutory Authorization. The Legislature of the State of California has in Government Code Sections 65302, 65560, and 65800 conferred upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the City of Cupertino does hereby adopt the following floodplain management regulations. 16.52.010 Definitions Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this ordinance its most reasonable application. A. "A zone" - see "Special flood hazard area". B. “Accessory structure” means a structure that is either: 365 2 1. Solely for the parking of no more than 2 cars; or 2. A small, low cost shed for limited storage, less than 150 square feet and $1,500 in value. C. "Accessory use" means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located. D. "Alluvial fan" means a geomorphologic feature characterized by a cone or fan-shaped deposit of boulders, gravel, and fine sediments that have been eroded from mountain slopes, transported by flood flows, and then deposited on the valley floors, and which is subject to flash flooding, high velocity flows, debris flows, erosion, sediment movement and deposition, and channel migration. E. "Apex" means a point on an alluvial fan or similar landform below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur. F. "Appeal" means a request for a review of the Floodplain Administrator's interpretation of any provision of this ordinance. G. "Area of shallow flooding" means a designated AO or AH Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. H. "Area of special flood hazard" - See "Special flood hazard area." I. "Base flood" means a flood which has a one percent chance of being equaled or exceeded in any given year (also called the "100-year flood"). Base flood is the term used throughout this ordinance. J. “Base flood elevation” (BFE) means the elevation shown on the Flood Insurance Rate Map for Zones AE, AH, A1-30, VE and V1-V30 that indicates the water surface elevation resulting from a flood that has a 1-percent or greater chance of being equaled or exceeded in any given year. K. "Basement" means any area of the building having its floor subgrade - i.e., below ground level - on all sides. L. "Building" - see "Structure". 366 3 M. “City” shall refer to the City of Cupertino, a municipal corporation in the State of California, County of Santa Clara. N. "Development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. O. "Encroachment" means the advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain which may impede or alter the flow capacity of a floodplain. P. "Existing manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before May 1, 1980. Q. "Expansion to an existing manufactured home park or subdivision" means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). R. "Flood, flooding, or flood water" means: 1. A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland or tidal waters; the unusual and rapid accumulation or runoff of surface waters from any source; and/or mudslides (i.e., mudflows); and 2. The condition resulting from flood-related erosion. S. "Flood Boundary and Floodway Map (FBFM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the floodway. T. "Flood Insurance Rate Map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. 367 4 U. "Flood Insurance Study" means the official report provided by the Federal Emergency Management Administration that includes flood profiles, the Flood Insurance Rate Map, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood. V. "Floodplain or flood-prone area" means any land area susceptible to being inundated by water from any source - see "Flooding." W. "Floodplain Administrator" is the City Engineer, or other community official designated by title to administer and enforce the floodplain management regulations. X. "Floodplain management" means the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain, including but not limited to emergency preparedness plans, flood control works, floodplain management regulations, and applicable general master plans. Y. "Floodplain management regulations" means this ordinance and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as grading and erosion control) and other application of police power which control development in flood-prone areas. This term describes federal, state or local regulations in any combination thereof which provide standards for preventing and reducing flood loss and damage. Z. "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletins TB 1-93, TB 3-93, and TB 7-93. AA. "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Also referred to as "Regulatory Floodway." BB. "Floodway fringe" is that area of the floodplain on either side of the "Regulatory Floodway" where encroachment may be permitted. CC. "Governing body" is the Planning Commission, which is empowered to adopt and implement regulations to provide for the public health, safety and general welfare of its 368 5 citizenry. In the event that the Planning Commission defers a decision to the City Council, or a Planning Commission decision is appealed, the Governing Body will be the City Council. DD. "Hardship" as related to Sections 16.52.060 through 16.52.062 of this ordinance means the exceptional hardship that would result from a failure to grant the requested variance. The City of Cupertino requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended. EE. "Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. FF. "Historic structure" means any structure that is: 1. Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; 2. Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; 3. Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or 4. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs. 5. Individually listed on a local inventory of historic places in the approved General Plan, publicly adopted by the City Council. GG. "Levee" means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water so as to provide protection from temporary flooding. 369 6 HH. "Levee system" means a flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accord with sound engineering practices. II. "Lowest floor" means the lowest floor of the lowest enclosed area, including basement (see “Basement” definition). 1. An unfinished or flood resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building’s lowest floor provided it conforms to applicable non- elevation design requirements, including, but not limited to: a. The flood openings standard in Section 16.52.043.C; b. The anchoring standards in Section 16.52.041; c. The construction materials and methods standards in Section 16.52.042; and d. The standards for utilities in Section 16.52.044. 2. For residential structures, all subgrade enclosed areas are prohibited as they are considered to be basements (see “Basement” definition). This prohibition includes below-grade garages and storage areas. JJ. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a "recreational vehicle". KK. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. LL. “Market value” is defined in the City of Cupertino substantial damage/improvement procedures. See Section 16.52.021.B. MM. "Mean sea level" means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced. NN. "New construction", for floodplain management purposes, means structures for which 370 7 the "start of construction" commenced on or after May 1, 1980, and includes any subsequent improvements to such structures. OO. "New manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after May 1, 1980. PP. "Obstruction" includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in, along, across or projecting into any watercourse which may alter, impede, retard or change the direction and/or velocity of the flow of water, or due to its location, its propensity to snare or collect debris carried by the flow of water, or its likelihood of being carried downstream. QQ. "One-hundred-year flood" or "100-year flood" - see "Base flood." RR. “Program deficiency” means a defect in a community’s floodplain management regulations or administrative procedures that impairs effective implementation of those floodplain management regulations. SS. "Public safety and nuisance" as related to Section 16.52.060 through 16.52.062 of this ordinance, means that the granting of a variance must not result in anything which is injurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin. TT. "Recreational vehicle" means a vehicle which is: 1. Built on a single chassis; 2. 400 square feet or less when measured at the largest horizontal projection; 3. Designed to be self-propelled or permanently towable by a light-duty truck; and 4. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. Recreational Vehicles shall not be on any site for more than 180 consecutive days 371 8 UU. "Regulatory floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. VV. “Remedy a violation” means to bring the structure or other development into compliance with State or local floodplain management regulations, or if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of the ordinance or otherwise deterring future similar violations, or reducing State or Federal financial exposure with regard to the structure or other development. WW. "Riverine" means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. XX. "Sheet flow area" - see "Area of shallow flooding." YY. "Special flood hazard area (SFHA)" means an area in the floodplain subject to a 1 percent or greater chance of flooding in any given year. It is shown on an FHBM or FIRM as Zone A, AO, A1-A30, AE, A99, or, AH. ZZ. "Start of construction" includes substantial improvement and other proposed new development and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days from the date of the permit. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufacture home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building. AAA. "Structure" means a walled and roofed building that is principally above ground; this includes a gas or liquid storage tank or a manufactured home. BBB. “Substantial damage” means: 372 9 1. Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred; or 2. Flood-related damages sustained by a structure on two separate occasions during a 10-year period for which the cost of repairs at the time of each such event, on the average, equals or exceeds 25 percent of the market value of the structure before the damage occurred. This is also known as “repetitive loss.” CCC. "Substantial improvement" means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either: 1. Any project for improvement of a structure to correct existing violations or state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or 2. Any alteration of a "historic structure," provided that the alteration will not preclude the structure's continued designation as a "historic structure." DDD. "Variance" means a grant of relief from the requirements of this ordinance which permits construction in a manner that would otherwise be prohibited by this ordinance. EEE. “Violation” means the failure of a structure or other development to be fully compliant with this ordinance. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this ordinance is presumed to be in violation until such time as that documentation is provided. FFF. "Watercourse" means a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur. 16.52.011 Lands to Which this Ordinance Applies. This ordinance shall apply to all areas of special flood hazards within the jurisdiction of the City of Cupertino. 373 10 The Special Flood Hazard Area identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the City of Cupertino,” dated November, 1979, and as amended from time to time, with accompanying Flood Insurance Rate Maps as amended from time to time, is adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on file in the Department of Public Works. 16.52.012 Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in the “Flood Insurance Study (FIS) for the City of Cupertino” dated November, 1979, with accompanying Flood Insurance Rate Maps (FIRM’s) and Flood Boundary and Floodway Maps (FBFM’s), dated May 1, 1980, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be a part of this ordinance. This FIS and attendant mapping is the minimum area of applicability of this ordinance and may be supplemented by studies for other areas which allow implementation of this ordinance and which are recommended to the City Council by the Floodplain Administrator. The study, FIRM’s and FBFM’s are on file at the Department of Public Works. 16.52.013 Compliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this ordinance and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards) shall constitute a misdemeanor. Nothing herein shall prevent the City of Cupertino from taking such lawful action as is necessary to prevent or remedy any violation. 16.52.014 Abrogation and Greater Restrictions. This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 16.52.015 Interpretation. In the interpretation and application of this ordinance, all provisions shall be: A. Considered as minimum requirements; 374 11 B. Strictly construed in favor of the governing body; and C. Deemed neither to limit nor repeal any other powers granted under state statutes. 16.52.016 Warning and Disclaimer Of Liability. The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City, any officer or employee thereof, the State of California, or the Federal Emergency Management Agency, for any flood damages that may result from reliance on this ordinance or any administrative decision lawfully made hereunder. 16.52.017 Severability. This ordinance and the various parts thereof are hereby declared to be severable. Should any section of this ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. 16.52.020 Designation of the Floodplain Administrator. The City Engineer is hereby designate the Floodplain Administrator for the City, and is appointed to administer and implement this ordinance by granting or denying development permits in accord with its provisions. 16.52.021 Duties and Responsibilities of the Floodplain Administrator. The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to the following: A. Permit Review. Review all development permits to determine: 1. Permit requirements of this ordinance have been satisfied, including ensuring that the Building Official has made a determination of substantial improvement and substantial damage of existing structures; 2. All other required state and federal permits have been obtained; 375 12 3. The site is reasonably safe from flooding; 4. The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. This means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than 1 foot at any point within the County; and 5. All Letters of Map Revision (LOMR’s) for flood control projects are approved prior to the issuance of building permits. Building Permits must not be issued based on Conditional Letters of Map Revision (CLOMR’s). Approved CLOMR’s allow construction of the proposed flood control project and land preparation as specified in the “start of construction” definition. B. Substantial Improvement and Substantial Damage Procedures. Determination of Substantial Improvements and Substantial Damages shall follow the City’s policy titled “Alterations and Additions Located in Special Flood Hazard Areas”, dated June 1, 2016, and any subsequent revisions approved and implemented by the Building Official. C. Review, Use and Development of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 16.52.012 (Basis for Establishing the Areas of Special Flood Hazard), the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer Sections 16.52.040 through 16.52.055. NOTE: A base flood elevation shall be obtained using one of two methods from the FEMA publication, FEMA 265, “Managing Floodplain Development in Approximate Zone A Areas – A Guide for Obtaining and Developing Base (100-year) Flood Elevations” dated July 1995. D. Notification of Other Agencies. 1. Alteration or relocation of a watercourse. The Floodplain Administrator shall: a. Notify adjacent communities, Santa Clara Valley Water District, and the 376 13 California Department of Water Resources prior to alteration or relocation; b. Submit evidence of such notification to the Federal Emergency Management Agency; and c. Assure that the flood carrying capacity within the altered or relocated portion of said watercourse is maintained. 2. Base Flood Elevation changes due to physical alterations: a. Within 6 months of information becoming available or project completion, whichever comes first, the floodplain administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a Letter of Map Revision (LOMR). b. All LOMR’s for flood control projects are approved prior to the issuance of building permits. Building Permits must not be issued based on Conditional Letters of Map Revision (CLOMR’s). Approved CLOMR’s allow construction of the proposed flood control project and land preparation as specified in the “start of construction” definition. Such submissions are necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data. 3. Changes in corporate boundaries: Notify FEMA in writing whenever the corporate boundaries have been modified by annexation or other means and include a copy of a map of the community clearly delineating the new corporate limits. E. Documentation of Floodplain Development. The Floodplain Administrator shall obtain and maintain for public inspection and make available as needed the following: 1. Certification required by Section 16.52.043.A and Section 16.52.53 (lowest floor elevations); 2. Certification required by Section 16.52.043.B (elevation or floodproofing of nonresidential structures); 377 14 3. Certification required by Section 16.52.043.C(flood openings); 4. Certification of elevation required by Section 16.52.045.A.3 (subdivisions and other proposed development standards); 5. Certification required by Section 16.52.055.B (floodway encroachments); and 6. Maintain a record of all variance actions, including justification for their issuance. F. Map Determination. The Floodplain Administrator shall make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Section 16.52.030, 16.52.060 through 16.52.062. G. Remedial Action. The Floodplain Administrator shall take action to remedy violations of this ordinance as specified in 16.52.013. H. Planning. The Floodplain Administrator shall assure the community’s General Plan is consistent with floodplain management objectives herein. I. Non-conversion of Enclosed Areas Below the Lowest Floor. To ensure that the areas below the BFE shall be used solely for parking vehicles, limited storage, or access to the building and not be finished for use as habitable space without first becoming fully compliant with the floodplain management ordinance in effect at the time of conversion, the Floodplain Administrator shall: 1. Ensure the Building Official has determined which applicants for new construction and/or substantial improvements have fully enclosed areas below the lowest floor that are 5 feet or higher; 378 15 2. Ensure the applicant enters into a “NON-CONVERSION AGREEMENT FOR CONSTRUCTION WITHIN FLOOD HAZARD AREAS” or equivalent with the City of Cupertino. The agreement shall be recorded with the Office of the Recorder at the County of Santa Clara as a deed restriction. The non-conversion agreement shall be in a form acceptable to the Floodplain Administrator and City Attorney; and 3. Verify that the “NON-CONVERSON AGREEMENT” provides the authority to inspect any area of a structure below the base flood elevation to ensure compliance upon prior notice of at least 72 hours. 16.52.022 Development Permit. A development permit shall be obtained before any construction or other development, including placement of prefabricated buildings and manufactured homes, within any area of special flood hazard established in 16.52.012. Application for a development permit shall be made on forms furnished by the City of Cupertino. The applicant shall provide the following minimum information: A. Plans, drawn to scale, showing: A. Location, dimensions, and elevation of the area in question, existing or proposed structures, storage of materials and equipment and their location; B. Proposed locations of water supply, sanitary sewer, storm drainage and other utilities; C. Grading information showing existing and proposed contours, any proposed fill, and drainage facilities; D. Location of the regulatory floodway when applicable; E. Base flood elevation information as specified in Section 16.52.012; F. Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures; and G. Proposed elevation in relation to mean sea level to which any nonresidential structure will be floodproofed, as required in Section 16.52.043.B of this ordinance and detailed in FEMA Technical Bulletin TB 3-93. A. Certification from a registered civil engineer or architect that any nonresidential floodproofed buildings meet the floodproofing criteria in Section 16.52.043.B. B. For a crawl-space foundation, the location and total net area of foundation openings 379 16 as required in Section 16.52.043.C of this ordinance and detailed in FEMA Technical Bulletins 1-93 and 7-93. C. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. D. All appropriate certifications listed in Section 16.52.021.E of this ordinance. 16.52.030 Appeals. The Planning Commission of The City of Cupertino shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this ordinance. A. Any person aggrieved by the decision of the Planning Commission may appeal such decision to the City Council, in accordance with Section 8 of Procedural Ordinance No. 652. 16.52.040 Standards of Construction. All Special Flood Hazard Areas are governed by the general standards set forth in Sections 16.52.040 through 16.52.044. 16.52.041 Anchoring. All new construction and substantial improvements of structures, including manufactured homes, shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. 16.52.042 Construction Materials and Methods. All new construction and substantial improvements of structures, including manufactured homes, shall be constructed: A. With flood resistant materials, and utility equipment resistant to flood damage for areas below the base flood elevation; B. Using methods and practices that minimize flood damage; C. With electrical, heating, ventilation, plumbing and air conditioning equipment and 380 17 other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and D. Within Zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures. 16.52.043 Elevation and Floodproofing. A. Residential construction. All new construction or substantial improvements of residential structures shall have the lowest floor, including basement: 1. In AE, AH, A1-30 Zones, elevated to one foot or more above the base flood elevation. 2. In an AO zone, elevated above the highest adjacent grade to a height one foot or more above the depth number specified in feet on the FIRM, or elevated at least 3 feet above the highest adjacent grade if no depth number is specified. 3. In an A zone, without BFE’s specified on the FIRM [unnumbered A zone], elevated to one foot or more above the base flood elevation; as determined under Section 16.5.021.C. Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator. B. Nonresidential construction. All new construction or substantial improvements of nonresidential structures shall either be elevated to conform with Section 16.52.043.A or: 1. Be floodproofed, together with attendant utility and sanitary facilities, below the elevation recommended under Section 16.52.043.A, so that the structure is watertight with walls substantially impermeable to the passage of water; 2. Have structural components capable of resisting hydrostatic and hydrodynamic 381 18 loads and effects of buoyancy; and 3. Be certified by a registered civil engineer or architect that the standards of Section 16.52.043.B.1 & 2 are satisfied. Such certification shall be provided to the Floodplain Administrator. C. Flood openings. All new construction and substantial improvements of structures with fully enclosed areas below the lowest floor (excluding basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must meet the following minimum criteria: 1. For non-engineered openings: a. Have a minimum of two openings on different sides having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; b. The bottom of all openings shall be no higher than one foot above grade; c. Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwater; and d. Buildings with more than one enclosed area must have openings on exterior walls for each area to allow flood water to directly enter; or 2. Be certified by a registered civil engineer or architect. D. Manufactured homes. a. See Section 16.52.053. E. Garages and low cost accessory structures. 1. Attached garages. a. A garage attached to a residential structure, constructed with the garage floor 382 19 slab below the BFE, must be designed to allow for the automatic entry of flood waters. See Section 16.52.043.C. Areas of the garage below the BFE must be constructed with flood resistant materials. See Section 16.52.042. b. A garage attached to a nonresidential structure must meet the above requirements or be dry floodproofed. For guidance on below grade parking areas, see FEMA Technical Bulletin TB-6. 2. Detached garages and accessory structures. a. “Accessory structures” used solely for parking (2 car detached garages or smaller) or limited storage (small, low-cost sheds), as defined in Section 16.52.010, may be constructed such that its floor is below the base flood elevation (BFE), provided the structure is designed and constructed in accordance with the following requirements: 1) Use of the accessory structure must be limited to parking or limited storage; 2) The portions of the accessory structure located below the BFE must be built using flood-resistant materials; 3) The accessory structure must be adequately anchored to prevent flotation, collapse and lateral movement; 4) Any mechanical and utility equipment in the accessory structure must be elevated or floodproofed to one foot or more above the BFE; 5) The accessory structure must comply with floodplain encroachment provisions in Section 16.52.055; and 6) The accessory structure must be designed to allow for the automatic entry of flood waters in accordance with Section 16.52.043.C. 2. Detached garages and accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in Sections 16.52.040 through 16.52.043. 16.52.044 Standards for Utilities. A. All new and replacement water supply and sanitary sewage systems shall be 383 20 designed to minimize or eliminate: 1. Infiltration of flood waters into the systems; and 2. Discharge from the systems into flood waters. B. On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding. C. Crawlspace Construction. This sub-section applies to buildings with crawl spaces up to 2 feet below grade. Below-grade crawl space construction in accordance with the requirements listed below will not be considered basements. 1. The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Crawl space construction is not allowed in areas with flood velocities greater than 5 feet per second unless the design is reviewed by a qualified design professional, such as a registered architect or professional engineer; 2. The crawl space is an enclosed area below the BFE and, as such, must have openings that equalize hydrostatic pressures by allowing for the automatic entry and exit of floodwaters. For guidance on flood openings, see FEMA Technical Bulletin 1-93; 3. Portions of the building below the BFE must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawl space used to elevate the building, but also any joists, insulation, or other materials that extend below the BFE; and 4. Any building utility systems within the crawl space must be elevated to one foot or more above BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions. 5. Requirements for all below-grade crawl space construction, in addition to the above requirements, shall include the following: a. The interior grade of a crawl space below the BFE must not be more than 2 feet below the lowest adjacent exterior grade (LAG), shown as D in figure 384 21 3 of FEMA Technical Bulletin 11-01; b. The height of the below-grade crawl space, measured from the interior grade of the crawl space to the top of the crawl space foundation wall must not exceed 4 feet (shown as L in figure 3 of FEMA Technical Bulletin 11-01) at any point; c. There must be an adequate drainage system that removes floodwaters from the interior area of the crawl space within a reasonable period of time after a flood event, not to exceed 72 hours; and d. The velocity of floodwaters at the site should not exceed 5 feet per second for any crawl space. For velocities in excess of 5 feet per second, other foundation types should be used, or the foundation must be designed and reviewed by a qualified design professional. 16.52.045 Standards for Subdivisions and other Proposed Development. A. All new subdivisions proposals and other proposed development, including proposals for manufactured home parks and subdivisions, greater than 50 lots or 5 acres, whichever is the lesser, shall: 1. Identify the Special Flood Hazard Areas (SFHA) and Base Flood Elevations (BFE). 2. Identify the elevations of lowest floors of all proposed structures and pads on the final plans. 3. If the site is filled above the base flood elevation, the following as-built information for each structure shall be certified by a registered civil engineer or licensed land surveyor and provided as part of an application for a Letter of Map Revision based on Fill (LOMR-F) to the Floodplain Administrator: a. Lowest floor elevation. b. Pad elevation. c. Lowest adjacent grade. B. All subdivision proposals and other proposed development shall be consistent with 385 22 the need to minimize flood damage. C. All subdivision proposals and other proposed development shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. D. All subdivisions and other proposed development shall provide adequate drainage to reduce exposure to flood hazards. 16.52.053 Standards for Manufactured Homes. A. All manufactured homes that are placed or substantially improved, on sites located: (1) outside of a manufactured home park or subdivision; (2) in a new manufactured home park or subdivision; (3) in an expansion to an existing manufactured home park or subdivision; or (4) in an existing manufactured home park or subdivision upon which a manufactured home has incurred "substantial damage" as the result of a flood, shall: 1. Within Zones A1-30, AH, and AE on the community's Flood Insurance Rate Map, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to one foot or more above the base flood elevation and be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. B. All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within Zones A1-30, AH, and AE on the community's Flood Insurance Rate Map that are not subject to the provisions of Section 16.52.053.A will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and be elevated so that either the: 1. Lowest floor of the manufactured home is at one foot or more above the base flood elevation; or 2. Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade. Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and 386 23 verification shall be provided to the Floodplain Administrator. 16.52.054 Standards for Recreational Vehicles. A. All recreational vehicles placed in Zones A1-30, AH, and AE will either: 1. Be on the site for fewer than 180 consecutive days; or 2. Be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions; or 3. Meet the permit requirements of Section 16.52.022 of this ordinance and the elevation and anchoring requirements for manufactured homes in Section 16.52.053.A. 16.52.055 Floodways. Since floodways are an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles, and erosion potential, the following provisions apply: A. Until a regulatory floodway is adopted, no new construction, substantial development, or other development (including fill) shall be permitted within Zones A1-30 and AE, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other development, will not increase the water surface elevation of the base flood more than 1 foot at any point within the County of Santa Clara. B. Within an adopted regulatory floodway, the City shall prohibit encroachments, including fill, new construction, substantial improvements, and other development, unless certification by a registered civil engineer is provided demonstrating that the proposed encroachment shall not result in any increase in flood levels during the occurrence of the base flood discharge. C. If Sections 16.52.055.A & B are satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of Sections 16.52.040 through 16.52.055. 16.52.061 Conditions for Variances. 387 24 A. Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing that the procedures of Sections 16.52.020 through 16.52.055of this ordinance have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. B. Variances may be issued for the repair or rehabilitation of "historic structures" (as defined in Section 16.52.010 of this ordinance) upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. C. Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result. D. Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this ordinance. For example, in the case of variances to an elevation requirement, this means the Planning Commission or City Council need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the Planning Commission or City Council believes will both provide relief and preserve the integrity of the local ordinance. E. Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that: 1. The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage, and 2. Such construction below the base flood level increases risks to life and property. It is recommended that a copy of the notice shall be recorded by the Floodplain Administrator in the Office of the Recorder of the County of Santa Clara, and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land. 388 25 F. The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and provide information on such variances issued to the Federal Emergency Management Agency. 16.52.062 Appeal Board. A. In passing upon requests for variances, the Floodplain Administrator shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and the: 1. Danger that materials may be swept onto other lands to the injury of others; 2. Danger of life and property due to flooding or erosion damage; 3. Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property; 4. Importance of the services provided by the proposed facility to the community; 5. Necessity to the facility of a waterfront location, where applicable; 6. Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; 7. Compatibility of the proposed use with existing and anticipated development; 8. Relationship of the proposed use to the comprehensive plan and floodplain management program for that area; 9. Safety of access to the property in time of flood for ordinary and emergency vehicles; 10. Expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and 11. Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges. B. Variances shall only be issued upon a: 389 26 1. Showing of good and sufficient cause; 2. Determination that failure to grant the variance would result in exceptional "hardship" to the applicant; and 3. Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (see "Public safety and nuisance"), cause “fraud and victimization” of the public, or conflict with existing local laws or ordinances. C. Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of Sections 16.52.062.A through 16.52.062.D are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance. D. Upon consideration of the factors of Section 16.52.061.A and the purposes of this ordinance, the Planning Commission or City Council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this ordinance. INTRODUCED at a regular meeting of the Cupertino City Council the 18th day of October, 2016 and ENACTED at a regular meeting of the Cupertino City Council on this _____of _______________ 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: _________________________ ___________________________________ Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 390 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] Cupertino, CA Municipal Code CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE Section 16.52.010 Definitions. 16.52.011 Lands to which this chapter applies. 16.52.012 Compliance. 16.52.013 Interpretation. 16.52.014 Warning and disclaimer of liability. 16.52.020 Establishment of development permit. 16.52.021 Designation of Director of Public Works. 16.52.030 Appeal Board. 16.52.035 Conditions for variance issuance. 16.52.040 General standards. 16.52.041 Anchoring. 16.52.042 Construction materials and methods. 16.52.043 Utilities. 16.52.044 Subdivision proposals. 16.52.050 Specific standards (unnumbered A zones and Zones A1-30). 16.52.051 Residential construction. 16.52.052 Nonresidential construction. 16.52.053 Manufactured homes. 16.52.054 Specific standards (zone AO). 16.52.055 Floodways. 16.52.060 Penalty. 16.52.010 Definitions. Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application. A. “Appeal” means a request for a review of the Floodplain Administrator’s interpretation of any provisions of this chapter or a request for a variance. B. “Area of shallow flooding” means a designated AO zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate and velocity flow may be evident. 391 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] C. “Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year (also called the “one-hundred-year flood”). D. “Basement” means any area of the building having its floor subgrade (below ground level) on all sides. E. “Breakaway walls” means any type of walls, whether solid or lattice, and whether constructed of concrete, masonry, wood, metal, plastic or any other suitable building material, which are not part of the structural support of the building and which are designed to break away under abnormally high tides or wave action without causing any damage to the structural integrity of the building on which they are used or any buildings to which they might be carried by floodwaters. A breakaway wall shall have a safe design loading resistance of not less than ten and no more than twenty pounds per square foot. Use of breakaway walls must be certified by a registered engineer or architect and shall meet the following conditions: 1. Breakaway wall collapse shall result from a water load less than that which would occur during the base flood; and 2. The elevated portion of the building shall not incur any structural damage due to the effects of wind and water loads acting simultaneously in the event of the base flood. F. “Development” means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. G. “Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from: 1. The overflow of floodwaters; 2. The unusual and rapid accumulation or runoff of surface waters from any source; 3. The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents or water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as provided in this definition. H. “Flood Boundary and Floodway Map” means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of flood hazard and the floodway. I. “Flood Insurance Rate Map (FIRM)” means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. J. “Flood Insurance Study” means the official report provided by the Federal Insurance Administration that includes flood profiles, the Flood Boundary-Floodway Map, and the water surface elevation of the base flood. K. “Floodplain” or “flood-prone area” means any land area susceptible to being inundated by water from any source (see definition of “flooding”). L. “Floodplain management” means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations. M. “Floodplain management regulations” means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. N. “Floodproofing” means any combination of structural and nonstructural additions, changes or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary 392 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] facilities, structures and their contents. O. “Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. P. “Highest adjacent grade” means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. Q. “Lowest floor” means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this chapter. R. “Manufactured home” means a structure that is transportable in one or more sections, built on a permanent chassis, and designed to be used with or without a permanent foundation when connected to the required utilities. For floodplain management purposes, the term “manufactured home” also includes park trailers, travel trailers and other similar vehicles placed on a site for more than one hundred eighty consecutive days. S. “Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for sale or rent. T. “Mean sea level” means, for the purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, or other datum, to which base flood elevations shown on a community’s Flood Insurance Rate Map are referenced. U. “New construction” means structures for which the start of construction commenced on or after the effective date of this chapter. V. “One-hundred-year flood” or “100-year flood” means a flood which has a one-percent annual probability of being equaled or exceeded. It is identical to the “base flood,” which will be the term used throughout this chapter. W. “Person” means an individual or his agent, firm, partnership, association or corporation, or agent of the aforementioned groups, or this state or its agencies or political subdivisions. X. “Remedy a violation” means to bring the structure or other development into compliance with state or local floodplain management regulations, or to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of this chapter or otherwise deterring future similar violations, or reducing federal financial exposure with regard to the structure or other development. Y. “Riverine” means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. Z. “Special Flood Hazard Area (SFHA)” means an area having special flood or flood-related erosion hazards, and shown on a FHBM or FIRM as zone A, AO or A1-30. AA. “Start of construction” includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within one hundred eighty days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slabs or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation, or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling, nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not as part of the main structure. BB. “Structure” means a walled and roofed building (including a gas or liquid storage tank) that is principally above ground, as well as a manufactured home. 393 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] CC. “Substantial improvement” means any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure either: 1. Before the improvement or repair is started; or 2. If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition “substantial improvement” is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: 1. Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or 2. Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places. DD. “Variance” means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter. EE. “Violation” means the failure of a structure or other development to comply fully with the community’s floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this chapter is presumed to be in violation until such time as that documentation is provided. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.011 Lands to Which this Chapter Applies. This chapter shall apply to all areas of special flood hazard within the city. The Special Flood Hazard Area identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the City of Cupertino,” dated November, 1979, with accompanying Flood Insurance Rate Maps as amended from time to time, is adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on file in the Department of Public Works. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.012 Compliance. No structure or land shall hereafter be constructed, located, extended, converted or altered without full compliance with the terms of this chapter and other applicable regulations. Nothing herein shall prevent the City of Cupertino from taking such lawful action as is necessary to prevent or remedy any violation. This chapter is not intended to repeal, abrogate or impair any existing easements, convenants or deed restrictions. However, where this chapter and a statute, ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.013 Interpretation. In the interpretation and application of this chapter, all provisions shall be: A. Considered as minimum requirements; 394 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] B. Strictly construed; and C. Deemed neither to limit nor repeal any other powers granted under state statutes. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.014 Warning and Disclaimer of Liability. The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the city, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that may result from reliance on this chapter or any administrative decision lawfully made thereunder. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.020 Establishment of Development Permit. A development permit shall be obtained before new construction, substantial improvements or development (including the placement of prefabricated buildings and manufactured homes) begins within any area of special flood hazard established in Section 16.52.011. Application for a development permit shall be made on forms furnished by the Director of Public Works, and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimensions and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities; and the location of the foregoing. Specifically, the following information is required: A. Proposed elevation, in relation to mean sea level, of the lowest floor (including basement) of all structures; in zone AO, elevation of highest adjacent grade and proposed elevation of lowest floor of all structures; B. Proposed elevation in relation to mean sea level to which any structure has been floodproofed; C. All appropriate certificates listed in Section 16.52.021 C1 of this chapter; D. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.021 Designation of Director of Public Works. The Director of Public Works is appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions. The duties and responsibilities of the Director of Public Works shall include, but not be limited to: A. Permit Review. The Director shall: 1. Review all development permits to determine that the permit requirements of this chapter have been satisfied, and that building sites are reasonably safe from flooding; 2. Review all development permits to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required; 395 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] 3. Review all development permits to determine whether the proposed development adversely affects the flood-carrying capacity of the floodway, or area where the base flood elevation has been determined but the floodway has not been designated. For purposes of this chapter, “adversely affects” means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will increase the water surface elevation of the base flood more than one foot at any point. B. Use of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 16.52.011 (Lands to which this chapter applies), the Director of Public Works shall obtain, review and reasonably utilize any base flood elevation data available from a federal, state or other source, in order to administer Sections 16.52.051 (Residential construction) and 16.52.052 (Nonresidential construction). C. Information to be Obtained and Maintained. The Director shall: 1. Maintain for public inspection and make available the following certification: a. Floor elevation, as required in Sections 16.52.051 and 16.52.052, b. Elevations in area of shallow flooding in Sections 16.52.042 and 16.52.054, c. Elevations/floodproofing of nonresidential structures in Section 16.52.052, d. Wet floodproofing standard in Section 16.52.042E, e. Subdivision standards in Section 16.52.044, f. Floodway encroachments in Section 16.52.055; 2. Maintain for public inspection all records pertaining to the provisions of this chapter. D. Alteration of Watercourses. The Director shall: 1. Notify adjacent communities, Santa Clara Valley Water District, and the Department of Water Resources of the State of California prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration; 2. Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished. E. Interpretation of FIRM Boundaries. The Director shall make interpretations, where needed, as to the exact location of the boundaries of the special flood hazard area (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Sections 16.52.030 through 16.52.035. F. Enforcement. The Director shall take action to remedy violations of this chapter as provided in Section 16.52.012. (Ord. 1905, (part), 2002; Amended during May 1998 supplement; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.030 Appeal Board. A. The Planning Commission shall hear and decide appeals and requests for variances from the requirements of this chapter. B. The Planning Commission shall hear and decide appeals when it is alleged there is an error in any requirement, decision or determination made by the Director of Public Works in the enforcement or administration of this chapter. 1. Any person aggrieved by the decision of the Planning Commission may appeal such decision to the City 396 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] Council, in accordance with Section 8 of Procedural Ordinance No. 652. 2. In passing upon such applications, the Planning Commission shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and: a. The danger that materials may be swept onto other lands to the injury of others; b. The danger to life and property due to flooding or erosion damage; c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; d. The importance of the services provided by the proposed facility to the community; e. The necessity to the facility of a waterfront location, where applicable; f. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; g. The compatibility of the proposed use with existing and anticipated development; h. The relationship of the proposed use to the comprehensive plan and floodplain management program for that area; i. The safety of access to the property in times of flood for the ordinary and emergency vehicles; j. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and k. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges. 3. Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subdivisions a through k in subsection B2 of Section 16.52.030 have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. 4. Upon consideration of the factors in subsection B2 of Section 16.52.030 and the purposes of this chapter, the Planning Commission may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. 5. The Director of Public Works shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.035 Conditions for Variance Issuance. A. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section. B. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. C. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. 397 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] D. Variances shall only be issued upon: 1. A showing of good and sufficient cause; 2. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and 3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. E. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. A copy of the notice shall be recorded to run with the land. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.040 General Standards. All Special Flood Hazard Areas are governed by the general standards set forth in Sections 16.52.040 through 16.52.044. (Amended during May 1998 supplement; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.041 Anchoring. A. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. B. All new and replacement manufactured homes and substantial additions to manufactured homes shall: 1. Be elevated so that the lowest floor is one foot above the base flood elevation; and 2. Be securely anchored to a permanent foundation to resist flotation, collapse or lateral movement. (Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.042 Construction Materials and Methods. A. All new construction and substantial improvements shall be constructed with new materials and utility equipment resistant to flood damage. B. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. C. All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. D. Within zone AO, adequate drainage paths shall be provided around structures on slopes to guide floodwaters around and away from proposed structures. E. All new construction and substantial improvements that fully enclose areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a 398 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] registered professional engineer or architect or meet or exceed the following minimum criteria: 1. Either a minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwaters; or 2. Be certified to comply with a local floodproofing standard approved by the Federal Insurance Administration. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.043 Utilities. Utility requirements are as follows: A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the systems into floodwaters. B. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.044 Subdivision Proposals. Requirements for subdivision proposals are as follows: A. All preliminary subdivision proposals shall identify the flood hazard area and the elevation of the base flood; B. All final subdivision plans will provide the elevation of proposed structure(s) and pads. If the site is filled above the base flood, the final pad elevation shall be certified by a registered professional engineer or surveyor and provided to the Director of Public Works; C. All subdivision proposals shall be consistent with the need to minimize flood damage; D. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage; and E. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.050 Specific Standards (Unnumbered A Zones and Zones A1-30). In all special flood hazards areas, including zones A1-30, where base flood elevation data has been provided as set forth in Section 16.52.011 (Lands to which this chapter applies) or subsection B of Section 16.52.021 (Use of other base flood data), or in unnumbered A zones where base flood level must be determined, the following additional provisions as set forth in this article are required. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.051 Residential Construction. 399 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] New construction and substantial improvements shall have the lowest floor, including basement, elevated to one foot above base flood elevation. Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered professional engineer or surveyor, or verified by the Community Building Inspector to be properly elevated. Such certification or verifications shall be provided to the Director of Public Works. (Ord. 1905, (part), 2002; Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.052 Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated to one foot above the level of the base flood elevation; or, together with attendant utility and sanitary facilities, shall: A. Be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water; B. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and C. Be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certifications shall be provided to the Director of Public Works. (Ord. 1905, (part), 2002; Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.053 Manufactured Homes. A. Manufactured homes shall be anchored in accordance with subsection B of Section 16.52.041. B. Improvements to manufactured home parks and manufactured home subdivisions as described in subparagraphs 4a through 4c of this subsection shall be required under the following circumstances: 1. For new manufactured home parks and manufactured home subdivisions; 2. For expansions to existing manufactured home parks and manufactured home subdivisions; 3. For existing manufactured home parks and manufactured home subdivisions where the repair, reconstruction or improvement of the streets, utilities and pads equals or exceeds fifty percent of the value of the streets, utilities and pads before the repair, reconstruction or improvement has commenced; 4. For manufactured homes not placed in a manufactured home park or manufactured home subdivision, it shall be required that: a. Stands or lots are elevated on compacted fill or on pilings so that the lowest floor of the manufactured home will be one foot above the base flood level; b. Adequate surface drainage and access for a hauler are provided; and c. In the instance of elevation of pilings, that lots are large enough to permit steps; piling foundations are placed in stable soil no more than ten feet apart; and reinforcement is provided for pilings more than six feet above the ground level. (Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.054 Specific Standards (Zone AO). 400 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] The following provisions shall apply to any area designated an AO zone in Section 16.52.011. The requirements for drainage paths as specified in Section 16.52.042D shall apply to construction authorized within the AO zone. A. Residential. All new construction and substantial improvements shall have the lowest floor, including basement, elevated above highest adjacent grade at least as high as the depth number specified on the FIRM or at least two feet above highest adjacent grade if no depth number is specified. Certification: Upon completion of any new or substantially improved structure in zone AO, the elevation of the lowest floor, including basement, shall be certified by a registered professional engineer or surveyor, or verified by the community Building Inspector to be properly elevated. Such certificate or verification shall be provided to the Floodplain Administrator. B. Nonresidential. All new construction and substantial improvements shall: 1. Be elevated as provided in subsection A of this chapter; or 2. Together with attendant utility and sanitary facilities be completely floodproofed to or above that level so that any space below that level is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; 3. Be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certification shall be provided to the Director of Public Works. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.055 Floodways. Located within areas of special flood hazard established in Section 16.52.011 are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply: A. Prohibit encroachments, including fill, new construction, substantial improvements and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge; B. If Section 16.52.051 is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of Sections 16.52.040 through 16.52.044; C. Prohibit the placement of any mobile homes, except in an existing mobile home park or existing mobile home subdivision. (Amended during May 1998 supplement; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.060 Penalty. Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. (Ord. 1886, (part), 2001; Ord. 1412, Exhibit A (part), 1987; Ord. 1179, § 3 (part), 1982) 401 40 2 40 3 FEDERAL EMERGENCY MANAGEMENT AGENCY COMMUNITY ASSISTANCE VISIT REPORT SECTION I 1. NAME OF COMMUNITY Cupertino 2. STATE CA 3. COMMUNITY ID NUMBER 060339 4. COUNTY Santa Clara 5. VISIT CONDUCTED BY Mark Delorey 6. AGENCY FEMA 7. DATE OF VISIT July 14, 2015 SECTION II 8. NAME OF LOCAL OFFICIAL Chad Mosley, Floodplain Administrator 9. TELEPHONE NUMBER (408)777-7604 10. ADDRESS OF LOCAL OFFICIAL 10300 Torre Ave, Cupertino CA 95014 SECTION III – FINDINGS PART A QUESTIONS – Select appropriate response RESPONSE Serious Minor None 1. Are there problems with the community's floodplain management regulations? X 2. Are there problems with the community's administrative/enforcement procedures? X 3. Are there engineering or other problems with the maps or Flood Insurance Study? X 4. Are there any other problems in the community's floodplain management program? X 5. Are there problems with the Biennial Report data? YES X NO 6. Are there any programmatic issues or problems identified? YES X NO 7. Are there any potential violations of the community's floodplain management regulations? X A potential violation or violations has/have been identified. No violations have been identified. X Actions are being taken on the part of the community to remedy the violation(s) identified during the CAV. 404 2 June 6, 2016 SECTION III – FINDINGS (Continued) ‐ PART B    LIST OF ATTENDEES    Chad Mosley – City of Cupertino, Senior Civil Engineer Mark Delorey – FEMA, Natural Hazards Program Specialist NARRATIVE The National Flood Insurance Program (NFIP) is based on an agreement between the federal government and participating communities that have been identified as flood prone. The Federal Emergency Management Agency (FEMA), through the Federal Insurance Administration, makes flood insurance available to the residents of a participating community, provided the community adopts and enforces adequate floodplain management regulations that meet the minimum NFIP requirements. A Community Assistance Visit (CAV) is a scheduled visit to a NFIP community to maintain periodic contact, evaluate the effectiveness of local floodplain management practices, and offer assistance, if needed. This report describes the findings of the July 14, 2015, CAV for the city of Cupertino. Based on the documentation provided during the CAV meeting and the follow-up emails from the city of Cupertino, additional documentation is required before FEMA can determine that the city complies with the NFIP requirements as specified in Title 44, Code of Federal Regulations. BACKGROUND The city of Cupertino first entered the National Flood Insurance Program (NFIP) on July 8, 1975 through the Emergency Program, then on May 1, 1980 through the Regular Program when the city’s initial Flood Insurance Rate Maps (FIRMS) were issued. Currently, there are 144 flood insurance policies in effect totaling $43,959,500 in coverage. Since joining the NFIP, there have been 10 paid losses totaling $812,170. There has been 1 reported substantial damage claim since the city joined the program. There have been 6 total repetitive losses on 3 structures located inside and outside of the Special Flood Hazard Areas (SFHAs) with losses amounting to $695,052. FLOODPLAIN MANAGEMENT REGULATIONS The city’s floodplain management ordinance regulations are contained in Chapter 16.52 (Ordinance number 1412) which was adopted on October 12, 1987. As part of the July 14, 2015 compliance meeting, the city of Cupertino’s Floodplain Management ordinance was thoroughly reviewed for compliance with minimum standards of the NFIP. 405 3 June 6, 2016 After the CAV meeting, FEMA staff reviewed the ordinance and determined that there is a need for an update to meet the minimum NFIP requirements pursuant to the Title 44, Code of Federal Regulations, Sections 59, 60.3-60.6, and 65.3 (CFR). To assist the community in updating its floodplain management regulations, FEMA provided an electronic copy of the current California Model Floodplain Management Ordinance, to the community for reference. The following sections should be revised or added to the Floodplain Management Ordinance: 1. Add the Citation of Statutory Authorization; for recommended wording see Section 1.1 of the California Model Floodplain Management Ordinance. 2. Add the following definitions to section 16.52.010 of the city’s ordinance (for recommended wording see Section 2.0 of the California Model Floodplain Management Ordinance): a. Existing Manufactured Home Park or Subdivision b. Expansion to an Existing Manufactured Home Park or Subdivision c. Historic Structure d. New Manufactured Home Park or Subdivision e. Recreational Vehicle f. Start of Construction g. Substantial Damage 3. Revising the following definitions in section 16.52.010: a. Add Zones AE, AH, and A99 to the SFHA definition. b. Revise the Substantial Improvement definition to match the recommended wording; see Section 2.0 of the California Model Floodplain Management Ordinance. 4. Revise section 16.52.011 of the city’s ordinance to (a) include a reference to all subsequent revisions and amendments to the flood maps and Flood Insurance study and (b) revise the date of the Flood Insurance Study from November 1979 to May 1, 1980. See section 3.2 of the California Model Floodplain Management Ordinance for recommended wording. 5. Add requirement to submit new technical data within 6 months to the city’s ordinance. See Section 4.2.D.2 of the California Model Floodplain Management Ordinance. 6. Update Section 16.52.035 of the city’s ordinance to match the Variance criteria shown in Section 6.0 of the California Model Floodplain Management Ordinance. 406 4 June 6, 2016 7. Add requirement for base flood elevation data for subdivision proposals or other development greater than 50 lots or 5 acres. See Section 5.3.A of the California Model Floodplain Management Ordinance for recommended wording. 8. Add one foot of freeboard to the Zone AO requirements in section 16.52.054 of the city’s ordinance. If the city requires one foot of freeboard for construction in other zones (e.g. Zone AE) it should also require the same freeboard in Zone AO. 9. Add the following wording (as shown in Section 5.1.C.3.a.4 of the California Model Floodplain Management Ordinance) to section 16.52.042 of the city’s ordinance: a. Building with more than one enclosed area must have openings on exterior walls for each area to allow flood water to directly enter; or 10. Add manufactured homes and recreational vehicles requirements to the city’s ordinance. See Sections 5.4.B and 5.5 of the California Model Floodplain Management Ordinance for recommended wording. ADMINISTRATIVE AND ENFORCEMENT PROCEDURES The Public Works Director is designated as the Floodplain Administrator pursuant to City’s Prevention of Floods Ordinance, Section 16.52.021. Public Works reviews all new residential and commercial developments to confirm the flood zone. If the proposed structure is determine to be in the special flood hazard zone the city requires per the city’s ordinance that the low floor be 1 foot above the Base Flood Elevation. For remodels and additions the building official will check substantial improvement. If the cost of substantial improvement meets or exceeds the 50% of the market value the structure will need to be in compliance with the minimum NFIP regulations. For proposed projects located in the Special Flood Hazard Area the city will require hydraulic modeling (e.g. HEC-RAS). The Santa Clara Valley Water District provides the city with the flows for each flooding source. Elevation Certificates are required for all new construction, additions, and substantial improvements in the Special Flood Hazard Area. Elevation Certificates are required at (1) pre construction; (2) during construction (after the foundation pour); and (3) at finished construction. Development in the floodway and variances are highly discouraged. Code enforcement is mostly complaint driven. In some occasions violations are identified during new permits when an older renovation is discovered. The enforcement actions include; (1) an administrative fine process; and (2) legal action. 407 5 June 6, 2016 OTHER PROBLEMS WITH THE COMMUNITY’S PROGRAM The city provided a document titled ‘Additions Located In Flood Hazard Areas’, dated September 1, 2015 which documents the methodology for substantial improvement calculations. Based on FEMA’s review of the document please address to the following questions/comments: 1. Revise the title of the document to ‘Alterations and Additions Located in the Special Flood Hazard Areas’; 2. Revise the date of the initial Flood Insurance Rate Map from December 31, 1974 to ‘May 1, 1980’ within the definitions for Post-FIRM Building and Pre-FIRM Building. 3. Please provide justification (source) for the square footage costs for the (1) Market Value for existing structures; (2) Alteration of existing structures; and (3) Construction Valuation of Addition. Attached is a sample document from another city’s Substantial Improvement procedures. PROGRAMMATIC ISSUES OR PROBLEMS IDENTIFIED There are none. FLOOD MITIGATION PROJECTS, ISSUES OR CONCERNS City Flood Mitigation projects were not discussed in detail. FIELD REVIEW A field inspection of the SFHAs of city of Cupertino produced several questions about development. 880 E Estates Drive – Residential construction near SFHA. Based on the effective FIRM and the Public Works Plan Check Comments sheet the structure is in Zone X. No further action required. 10181 Phar Lap Drive – Residential structure in SFHA. Elevation Certificate provided during meeting demonstrates that the structure and addition are in compliance; Low Floor and the Lowest Adjacent Grade are at or above the BFE. No further action required. 10336 Vicksburg Drive – Residential structure near SFHA. Based on the effective FIRM the structure is in Zone X. No further action required. 408 6 June 6, 2016 10518 East Estates Drive - Residential structure near SFHA. Based on the effective FIRM the structure is in Zone X. No further action required. 10530 Creston Drive - Residential structure in SFHA. Please provide FEMA with documentation showing that this structure is compliant. 10779 Brookwell Drive - Residential structure near SFHA. Based on the effective FIRM the structure is in Zone X. No further action required. 22157 Clear Creek Court - Residential structure in SFHA. Please provide FEMA with documentation showing that this structure is compliant. ENGINEERING FLOOD MAPS AND STUDY Zone D was briefly discussed as an issue when it comes to purchasing flood insurance. FEMA to add a request for restudy to remove Zone D from the city of Cupertino. COMMUNITY ACTION NEEDED The community must submit to FEMA, within sixty (60) days of the date of this report, the following: 1. A copy of a draft ordinance that amends the city’s current floodplain management regulations, as identified in the Floodplain Regulations section of this report. 2. Provide additional documentation as identified in the Other Problems with the Community’s Program section of this report. 3. Provide additional documentation as identified in the Field Inspection section of this report. 409 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1383 Name: Status:Type:Reports by Council and Staff Agenda Ready File created:In control:1/14/2016 City Council On agenda:Final action:10/18/2016 Title:Subject: Report on Committee assignments and general comments Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council10/18/20161 Subject: Report on Committee assignments and general comments Report on Committee assignments and general comments CITY OF CUPERTINO Printed on 10/12/2016Page 1 of 1 powered by Legistar™410