Loading...
12-05-2017 Searchable Packet (2)CITY OF CUPERTINO AGENDA CITY COUNCIL 6:45 PM 10350 Torre Avenue, Council Chamber Tuesday, December 5, 2017 Televised Swearing-in Ceremony followed by Regular Meeting PLEDGE OF ALLEGIANCE ROLL CALL ELECTION OF MAYOR AND VICE MAYOR 1.Subject: Councilmembers elect Mayor Recommended Action: Make nominations and elect Mayor 2.Subject: Councilmembers elect Vice Mayor Recommended Action: Make nominations and elect Vice Mayor OATH OF OFFICE 3.Subject: Mayor takes Oath of Office Recommended Action: Mayor takes Oath of Office 4.Subject: Vice Mayor takes Oath of Office Recommended Action: Vice Mayor takes Oath of Office COMMENTS BY NEW MAYOR 5.Subject: Comments by new Mayor and presentation of gifts Recommended Action: Comments by new Mayor and presentation of gifts COMMENTS BY COUNCIL MEMBERS AND PUBLIC 6.Subject: Comments by Councilmembers Recommended Action: Comments by Councilmembers Page 1 1 December 5, 2017City Council AGENDA 7.Subject: Members of the audience are invited to speak (no Speaker Cards necessary) Recommended Action: Members of the audience are invited to speak RECEPTION 8.Subject: The public is invited to attend a reception in the lobby Recommended Action: The public is invited to attend a reception in the lobby RECESS CEREMONIAL MATTERS AND PRESENTATIONS POSTPONEMENTS 9.Subject: Continue Item No. 13 to consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041) to January 16, 2018 (per applicant request) Recommended Action: Continue Item No. 13 to consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041) to January 16, 2018 (per applicant request) A - Applicant Letter 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. Page 2 2 December 5, 2017City Council AGENDA 10.Subject: Approve the November 21 City Council minutes Recommended Action: Approve the November 21 City Council minutes A - Draft Minutes 11.Subject: Approve First Quarter Financial Report for Fiscal Year 2017-18 Recommended Action: 1. Accept the City Manager's First Quarter Financial Report for Fiscal Year 2017-18; and 2. Adopt Resolution No. 17-113 approving First Quarter Budget Adjustments Staff Report A - Draft Resolution B - First Quarter Financial Report for Fiscal Year 2017-18 C - Detailed Description of Year End and Adjustments made through 9/30/17 D - Budget Journal 12.Subject: Exceptions to Facility Rental Hours Recommended Action: Delegate authority to the Recreation and Community Services Director to approve extended hours for facility rentals. Staff Report Attach A - Facility Rental Information SECOND READING OF ORDINANCES PUBLIC HEARINGS 13.Subject: Consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041). (The applicant is requesting a postponement to January 16, 2018) Recommended Action: Continue this item to January 16, 2018 Page 3 3 December 5, 2017City Council AGENDA 14.Subject: Consider an ordinance to establish regulations regarding adult use (recreational) and medicinal marijuana by adding a new Chapter 10.84, Medicinal and Adult Use of Marijuana, in Title 10, amending Chapter 19.08, Definitions, to repeal definitions related to Marijuana and amending Chapter 19.98, Medical Marijuana, to update and reference the newly established Chapter. (Application No(s).: MCA-2017-04; Applicant(s): City of Cupertino; Location: Citywide) Recommended Action: That the City Council: 1. Find that the proposed actions are exempt from CEQA; and 2. Conduct the first reading and adopt Ordinance No. 17-2169 entitled “An ordinance of the City Council of the City of Cupertino adding Chapter 10.84 titled ``Medicinal and Adult Use of Marijuana” to Title 10 of the Cupertino Municipal Code; amending Section 19.08.030 to repeal Definitions related to Marijuana; and amending Chapter 19.98 to reference the newly adopted ordinance” (Attachment A.) Staff Report A - Draft Ordinance B - PC Reso 6841 showing additions and deletions C - Santa Clara County DA Office memo May 2014 ORDINANCES AND ACTION ITEMS 15.Subject: Approve the Fifth amendment to the Employment Contract for the City Manager and amend the Appointed Employees' Compensation Program Recommended Action: Adopt Resolution No. 17-114 approving the Fifth amendment to the employment contract for the City Manager and authorizing the Mayor to execute the contract; and Adopt Resolution No. 17-115 amending the Appointed Employees' Compensation Program to reflect changes in compensation for the City Manager. Staff Report A - Draft Reso approving the Fifth Amendment to the Employment Contract B - Draft Reso amending the Appoined Employees' Compensation Program C - Appointed Employees' Compensation Program - REDLINED D - Appointed Employees' Compensation Program - CLEAN E - Fifth Amendment to the Employment Contract - REDLINED F - Fifth Amendment to the Employment Contract - CLEAN REPORTS BY COUNCIL AND STAFF ADJOURNMENT Page 4 4 December 5, 2017City 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. IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. You are hereby admonished not to include any personal or private information in written communications to the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights you may have on the information provided to the City. 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 Page 5 5 December 5, 2017City Council AGENDA 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 6 6 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2944 Name: Status:Type:Election of Mayor and Vice Mayor Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Councilmembers elect Mayor Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Councilmembers elect Mayor Make nominations and elect Mayor CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™7 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2945 Name: Status:Type:Election of Mayor and Vice Mayor Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Councilmembers elect Vice Mayor Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Councilmembers elect Vice Mayor Make nominations and elect Vice Mayor CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™8 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2946 Name: Status:Type:Oath of Office Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Mayor takes Oath of Office Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Mayor takes Oath of Office Mayor takes Oath of Office CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™9 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2947 Name: Status:Type:Oath of Office Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Vice Mayor takes Oath of Office Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Vice Mayor takes Oath of Office Vice Mayor takes Oath of Office CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™10 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2948 Name: Status:Type:Comments by New Mayor Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Comments by new Mayor and presentation of gifts Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Comments by new Mayor and presentation of gifts Comments by new Mayor and presentation of gifts CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™11 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2949 Name: Status:Type:Comments by Council Members and Public Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Comments by Councilmembers Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Comments by Councilmembers Comments by Councilmembers CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™12 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2950 Name: Status:Type:Comments by Council Members and Public Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Members of the audience are invited to speak (no Speaker Cards necessary) Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: Members of the audience are invited to speak (no Speaker Cards necessary) Members of the audience are invited to speak CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™13 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-2951 Name: Status:Type:Reception Agenda Ready File created:In control:8/22/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: The public is invited to attend a reception in the lobby Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ConductedCity Council12/5/2017 1 Subject: The public is invited to attend a reception in the lobby The public is invited to attend a reception in the lobby CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™14 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-3356 Name: Status:Type:Postponements Agenda Ready File created:In control:11/27/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Continue Item No. 13 to consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041) to January 16, 2018 (per applicant request) Sponsors: Indexes: Code sections: Attachments:A - Applicant Letter Action ByDate Action ResultVer. ApprovedCity Council12/5/2017 1 Subject: Continue Item No. 13 to consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041) to January 16, 2018 (per applicant request) Continue Item No. 13 to consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041) to January 16, 2018 (per applicant request) CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™15 ANDREW L-FABER RALPH J.SWANSON PEGGY L.SPRINGGAY JOSEPH E.DWORAK SAMUEL L.FARB JAMES P.CASHMAN STEVEN J.CASAD NANCY J.JOHNSON JEROLD A. REITON JONATHAN D.WOLF KATHLEEN K. SIPLE KEVIN F. KELLEY MARK MAKIEWICZ SANFORD A,BERLINER SAMUEL J.COHEN HUGH L,ISOLA JEFFREY S.KAUFMAN JOllE HOUSTON BRIAN L.SHETLER JOHN F.DOMINGUE HARRY A,LOPEZ CHARLES W.VOLPE MICHAEL VIOLANTI CHRISriNE H.LONG AARON M,VALENTI CHRISTIAN E.PICONE SUSAN E.BISHOP SANDRA G.SEPULVEDA MICHAEL B.IJAMS ROBERT W,HUMPHREYS LINDA A.GALLON ROBERT L,CHORTEK VIA EMAIL AND U.S.MAIL E BERLINER COHEN LLP TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE,CALIFORNIA 95113-2233 TELEPHONE:(408)286-5800 FACSIMILE:(408)998-5388 wwvv'.berliner.com Branch OfHces Merced,CA •Modesto,CA November 27,2017 THOMAS P.MURPHY EILEEN P.KENNEDY KIMBERLY G.FLORES OAWNC.SWEAH MICHAEL J.CHENG GHAZALEH MODARRESI TYLER A,SHEWEY H.SHINNY LIU BEAU C,CORREIA OF COUNSEL STEVEN L.HALLGRIMSON FRANK R,UBHAUS ERIC WONG NANCY L,BRANDT Catarina Kidd,Senior Planner City of Cupertino Community Development Department 10300 Torre Avenue Cupertino,CA 95014 catarinak@cuDertino.org Re:Westport Cupertino General Plan Amendment Authorization Our File No.:24070-001 LAWRENCE UN JOHN WHISMAN JR. DAVID A.BELLUMORI STEPHEN C.SCORDELIS HARRY B. GILL MICHAEL C-BRANSON JUSTIN D.PRliEin ANTHONY DeJAGER ELLEN M.TAYLOR RICHARD E.NOSKY,JR. LESLIEKALIM McHUGH LAURA PALAZZOLO Dear Ms.Kidd: Thiswillfollowupourtelephoneconversationoftoday andserveasa formalrequestfrom applicant KT Urbanto continue the hearing for General Plan Amendment authorization on the proposed WestportCupertinoProject from December5th,2017 to January 16th, 2018. Thank you for your consideration. REN:dt Very truly yours,^ BERUNEJl LLP [CHARD E.NOSKY,JR. E-Mail:richard.nosky@berliner.com cc:Mark Tersini (email and regular mail)mtersini@aol.com David Brandt, City Manager (email only)davidb@cupertino.org Aarti Shrivastava,Assistant City Manager (email only)aartis@cupertino.org 4844-1203-7207v1 RNOSKY\24070001 16 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2061 Name: Status:Type:Consent Calendar Approved File created:In control:10/4/2016 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Approve the November 21 City Council minutes Sponsors: Indexes: Code sections: Attachments:A - Draft Minutes Action ByDate Action ResultVer. ApprovedCity Council12/5/2017 1 Subject: Approve the November 21 City Council minutes Approve the November 21 City Council minutes CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™17 DRAFT MINUTES CUPERTINO CITY COUNCIL Tuesday, November 21, 2017 SPECIAL CITY COUNCIL MEETING At 4:00 p.m. Mayor Savita Vaidhyanathan called the Special City Council meeting to order in the City Hall Conference Room A, 10300 Torre Avenue. Present: Mayor Savita Vaidhyanathan, Vice Mayor Darcy Paul, and Councilmembers Barry Chang, Steven Scharf, and Rod Sinks. Absent: None. Council went into closed session and reconvened in open session at 6:45 p.m. in the Cupertino Community Hall Council Chambers, 10350 Torre Avenue for the Regular Meeting. 1. Subject: Conference with Real Property Negotiators pursuant to Government Code Section 54956.8. Properties: 10849 Sycamore Drive, Cupertino, California; APN 342-57-028. Agency Negotiators: David Brandt, Jaqui Guzman. Negotiating Parties: Carol Atwood. Under Negotiation: Price and terms of payment Mayor Vaidhyanathan reported that Council gave direction to staff. 2. Subject: Conference with Legal Counsel - Anticipated Litigation Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Government Code Section 54956.9: (one potential case) Written communications for this item included handout from League of California Cities and a letter to Council. David Gold spoke on this item. Mayor Vaidhyanathan reported that Council cancelled the item by unanimous vote and no action was taken. Mayor Vaidhyanathan also reported out from an additional closed session added as an urgent item by unanimous vote regarding Conference with Real Property Negotiators pursuant to Government Code Section 54956.8. Properties: 10301 Byrne Avenue, Cupertino, Ca lifornia; APN 18 City Council Minutes November 21, 2017 2 357-11-020. Agency Negotiators: David Brandt, Jeff Milkes. Negotiating Parties: Susan P. Sievert, on behalf of The Patricia L. Sievert Trust. Under Negotiation: Price and terms of payment Mayor Vaidhyanathan reported that Council provided further direction to the negotiators. REGULAR CITY COUNCIL MEETING PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Savita Vaidhyanathan called the Regular City Council meeting to order in the Cupertino Community Hall Council Chambers, 10350 Torre Avenue and led the Pledge of Allegiance. ROLL CALL Present: Mayor Savita Vaidhyanathan, Vice Mayor Darcy Paul, and Councilmembers Barry Chang, Steven Scharf, and Rod Sinks. Absent: None. CEREMONIAL MATTERS AND PRESENTATIONS 1. Subject: Present Certificates of Appreciation to volunteers at the Silicon Valley Korean School (SVKS) Recommended Action: Present Certificates of Appreciation to volunteers at the Silicon Valley Korean School (SVKS) Youngsook Kim, Vice Principal of Silicon Valley Korean School called the names of the volunteers and two volunteers spoke briefly. Mayor Vaidhyanathan presented Certificates of Appreciation to volunteers at the Silicon Valley Korean School (SVKS). 2. Subject: Presentation from the Cupertino Rotary regarding community outreach Recommended Action: Receive presentation from the Cupertino Rotary regarding community outreach Written communications for this item included a presentation. Cupertino Rotary President John Zirelli, incoming Rotary President for 2018 Helen Davis, and Rotary President Elect for 2020 Padma Chari gave a presentation regarding community outreach. 19 City Council Minutes November 21, 2017 3 Council received the presentation. POSTPONEMENTS - None ORAL COMMUNICATIONS Brooke Ezzat talked about completion bonds and a mixed use development fee for developers. Donna Austin talked about housing concerns in Cupertino (distributed written comments). Kevin McClelland speaking on behalf of the Cupertino Chamber of Commerce talked about General Plan decisions. Tracey Edwards speaking on behalf of the League of Women Voters talked about the recent speaker series and allowing input before making changes to the General plan. Pilar Lorenzana speaking on behalf of Silicon Valley at Home talked about housing decisions in Cupertino. Mike Malik talked about affordable housing in Silicon Valley. John Zhao talked about SB 35 (Wiener) and the Cupertino General Plan. Muni Madhdhipatla talked about new housing legislation and Vallco redevelopment. Pete Heller talked about new housing legislation and Vallco redevelopment. Jennifer Griffin talked about new housing legislation. Dolly Sandoval talked about noticing for City development and SB 35. Heather Dean talked about changes to the Cupertino General Plan. Tara Sreekrishnan talked about community benefit agreements. Danessa Techmanski talked about new housing legislation and Vallco redevelopment. Liana Crabtree talked about new housing legislation. 20 City Council Minutes November 21, 2017 4 Victoria Fierce speaking on behalf of California Renters Legal Advocacy and Education Fund (CaRLA) talked about SB 35 and the Cupertino General Plan. Richard Lowenthal talked about SB 35 and the Cupertino General Plan. Lisa Warren talked about new housing legislation. Nathan Ho speaking on behalf of Silicon Valley Leadership Group talked about Vallco redevelopment and thanked Council for the recent speaker series. David Watson talked about housing and Vallco redevelopment. Rich Abdalah talked about process for agenda items. Mark Mollineaux talked about SB 35. Max Kapczynski talked about housing in Cupertino. Aboubacar Ndiaye talked about Vallco and housing allocation in Cupertino. Liat Zavodivker talked about housing and Vallco redevelopment. CONSENT CALENDAR Paul moved and Chang seconded to approve the items on the Consent Calendar as presented. Ayes: Vaidhyanathan, Paul, Chang, Scharf, and Sinks. Noes: None. Abstain: None. Absent: None. 3. Subject: Approve the November 7 City Council minutes Recommended Action: Approve the November 7 City Council minutes 4. Subject: Accept Accounts Payable for the period ending October 6, 2017 Recommended Action: Adopt Resolution No. 17-107 accepting Accounts Payable for the period ending October 6, 2017 5. Subject: Accept Accounts Payable for the period ending October 20, 2017 Recommended Action: Adopt Resolution No. 17-108 accepting Accounts Payable for period ending October 20, 2017 6. Subject: Accept Accounts Payable for the period ending October 13, 2017 21 City Council Minutes November 21, 2017 5 Recommended Action: Adopt Resolution No. 17-109 accepting Accounts Payable for the period ending October 13, 2017 7. Subject: Declare weeds a nuisance and set hearing date of January 16 for objections to proposed removal Recommended Action: Adopt Resolution No. 17-110 declaring weeds a nuisance and setting a hearing date of January 16 for objections to proposed removal 8. Subject: Creation of pooled liability assurance network joint powers authority (PLAN JPA). Recommended Action: Adopt Resolution No. 17-111 authorizing the City of Cupertino to participate in the Pooled Liability Assurance Network Joint Powers Authority (PLAN JPA). 9. Subject: Authorize the City Manager to execute an agreement with Active Network, LLC for recreation management software Recommended Action: Authorize the City Manager to execute a five-year Product and Services Agreement with Active Network, LLC, in the amount of $1,058,754 for enterprise recreation management software implementation, hardware, and subscription (Attachment A). Authorize the City Manager to negotiate and execute contract extensions at the end of the initial five-year contract period for one two-year term 10. Subject: Application for Alcohol Beverage License for KVS Team (dba Koja Kitchen), 19700 Vallco Parkway, Suite 130 Recommended Action: Recommend approval to the California Department of Alcoholic Beverage Control of the application for Alcohol Beverage License for KVS Team (dba Koja Kitchen), 19700 Vallco Parkway, Suite 130 11. Subject: Authorize the City Manager to send letter s opposing wireless legislation that infringes on the City's authority to manage publicly owned property and wireless facility placement. Recommended Action: Authorize the City Manager to send letters to governmental representatives, committees and other appropriate groups and agencies regarding legislation that affects the City's authority to manage publicly owned property and wireless facility placement. SECOND READING OF ORDINANCES - None PUBLIC HEARINGS - None ORDINANCES AND ACTION ITEMS 22 City Council Minutes November 21, 2017 6 12. Subject: Authorization of consultant services and budget for specific plan and environmental review of the Vallco Shopping District Special Area. Recommended Action: Staff recommends that the City Council: 1. Authorize the City Manager to: a. Execute a consultant agreement with Opticos Design to provide services to the City for the preparation of a specific plan for the Council’s consideration, for an amount not to exceed $850,000 (Attachment A). b. Execute a consultant agreement with David J. Powers and Associates, Inc. to provide services to the City for the preparation of an Environmental Impact Reports (EIR) for the Council’s consideration, for an amount not to exceed $821,940. This amount includes services of transportation consultant Fehr and Peers, who will be a subconsultant under the David J. Powers and Associates, Inc. contract (Attachment B). c. Execute a consultant agreement with EPS to provide services to the City for economic impact analysis for an amount not to exceed $147,000 (Attachment C). d. Negotiate and execute additional future amendments to the agreements listed in Items 1a. - c. above, up to a total of $2,405,549, which includes the contract amounts listed above, 15% administrative fee on consultant contracts and a 15% contingency, to the extent that funds are appropriated for the amendments and the total expenditures are cost-recovered from the applicant. 2. Approve an increase to the Fiscal Year 2017-18 Planning and Community Development - Mid to Long Term Planning program budget of $2,405,549. Written communications for this item included a letter and emails to Council. Senior Planner Catarina Kidd reviewed the staff report. Mayor Vaidhyanathan opened public comment and the following individuals spoke. Chi Yeh Donna Austin Jean Bedord Jennifer Griffin Bob Stromberg Lisa Warren Mayor Vaidhyanathan closed public comment. Staff answered questions from Council. Sinks moved and Chang seconded to 1. Authorize the City Manager to: a. Execute a consultant agreement with Opticos Design to provide services to the City for the preparation of a specific plan for the Council’s consideration, for an amount not to exceed $850,000 (Attachment A). b. Execute a consultant agreement with David J. Powers and 23 City Council Minutes November 21, 2017 7 Associates, Inc. to provide services to the City for the preparation of an Environmental Impact Reports (EIR) for the Council’s consideration, for an amount not to exceed $821,940. This amount includes services of transportation consultant Fehr and Peers, who will be a subconsultant under the David J. Powers and Associates, Inc. contract (Attachment B). c. Execute a consultant agreement with EPS to provide services to the City for economic impact analysis for an amount not to exceed $147,000 (Attachment C). d. Negotiate and execute additional future amendments to the agreements listed in Items 1a. - c. above, up to a total of $2,405,549, which includes the contract amounts listed above, 15% administrative fee on consultant contracts and a 15% contingency, to the extent that funds are appropriated for the amendments and the total expenditures are cost-recovered from the applicant. 2. Approve an increase to the Fiscal Year 2017-18 Planning and Community Development - Mid to Long Term Planning program budget of $2,405,549. Paul offered a friendly amendment directing staff to ask the consultants to come to a Council meeting at the earliest possible date to answer questions. Sinks accepted the friendly amendment. Chang did not accept the friendly amendment and Vaidhyanathan seconded the motion and friendly amendment. The motion carried unanimously. 13. Subject: Mitigation Fee Act - Annual and Five-Year Report for fiscal year ending June 30, 2017 Recommended Action: Accept the Annual and Five-Year Review of the City of Cupertino's Development Impact Fees (Government Code Section 66000 et seq.); and Adopt Resolution No 17-112 entitled "A Resolution of the City Council of the City of Cupertino Approving the Annual and Five-Year Development Impact Fee Reports and Making Required Findings." Director of Public Works Timm Borden reviewed the staff report. Staff answered questions from Council. Mayor Vaidhyanathan opened public comment and the following individuals spoke. Tara Sreekrishnan Jennifer Griffin Mayor Vaidhyanathan closed public comment. 24 City Council Minutes November 21, 2017 8 Paul moved and Scharf seconded to accept the Annual and Five-Year Review of the City of Cupertino's Development Impact Fees (Government Code Section 66000 et seq.); and Adopt Resolution No 17-112 entitled "A Resolution of the City Council of the City of Cupertino Approving the Annual and Five-Year Development Impact Fee Reports and Making Required Findings." The motion carried unanimously. REPORTS BY COUNCIL AND STAFF 14. Subject: Report on Committee assignments and general comments Recommended Action: Report on Committee assignments and general comments Council members highlighted the activities of their committees and various community events. Gave direction to staff to hold the 11/27 City Council study session, and cancel the 11/27 Environmental Review Committee and 11/28 Planning Commission agenda items regarding Housing Element discussion. Gave direction to staff to address how Council gives direction and adds items to the agenda in formal Rules of Conduct that will be coming to Council at a future meeting. ADJOURNMENT At 10:30 p.m., Mayor Vaidhyanathan adjourned the meeting. ________________________________ Grace Schmidt, City Clerk 25 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-3015 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:9/12/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Approve First Quarter Financial Report for Fiscal Year 2017-18 Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Resolution B - First Quarter Financial Report for Fiscal Year 2017-18 C - Detailed Description of Year End and Adjustments made through 9/30/17 D - Budget Journal Action ByDate Action ResultVer. AdoptedCity Council12/5/2017 1 Subject: Approve First Quarter Financial Report for Fiscal Year 2017-18 1. Accept the City Manager's First Quarter Financial Report for Fiscal Year 2017-18; and 2. Adopt Resolution No. 17-113 approving First Quarter Budget Adjustments CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™26 1 ADMINISTRATIVE SERVICES CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3220 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: December 5, 2017 Subject Approve the First Quarter Financial Report for Fiscal Year 2017-18 Recommended Action 1. Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2017-18 2. Adopt a draft resolution approving First Quarter budget adjustments Fiscal Impact On June 20, 2017, as part of the Final Budget Hearing and Adoption, the City Council approved the following changes to the FY 2017-18 Proposed Budget: BUDGET ACTIONS AMOUNT Proposed Budget 141,236,255 Final Budget Hearing & Adoption 0 Appropriation to Capital Projects for the Bike Plan Implementation 3,000,000 Transfers out of the Capital Reserve for the Bike Plan 3,000,000 Appropriation to the Capital Improvement Fund to fund Bike Plan Implementation 779,762 Transfers out of the Transportation Fund for the Bike Plan 779,762 Appropriation to the Creekside Building Roof Modification 50,000 Appropriation to Public Works Traffic Engineering for Senior Mobility Pilot Program 22,000 Appropriation to City Council Community Funding for the Iranian Federated Women’s Club Event 400 Final Budget Hearing & Adoption 0 FY 2017-18 Final Adopted Budget $148,868,179 27 2 The FY 2017-18 Final Budget was adopted at $148,868,179, and is balanced using the combination of $125,692,328 in revenue, and is expected to use $23,175,851 of fund balance by the end of the fiscal year. This is primarily due to the use of savings in the Capital Reserve to fund Capital Improvement Projects and the CalPERS reserve. Additionally, savings already set aside for the Lawrence Mitty property acquisition are projected to be used this fiscal year. Final Adopted Budget by Fund, $148,868,179 General $75,051,233 50% Special Revenue $24,872,591 17% Debt Service $3,167,538 2% Capital Projects $23,509,762 16% Enterprise $10,576,992 7% Internal Service $11,690,063 8% As part of the FY 2016-17 year-end close, additional funds were carried forward through encumbrances of $10,532,154, and carryforward appropriations from fiscal year 2016-17 of $41,133,535. In addition, due to an operating transfer of Internal Service Fund 615 back into the General Fund, there was a post-closing adjustment of $3,028,366 resulting in a net zero impact to the Amended Budget when revenue is taken into account. Lastly, Council approved budget amendments between July 1 to September 30, 2017 totaling $418,092. The Amended Budget at the end of the first quarter is $197,923,594 and is funded with $131,525,888 in revenue and $66,397,706 in fund balance and one-time funding sources. Budget amendments are summarized in the chart below: 28 3 Fund Description Amount General Fund Total 11,974,549 Special Revenue Total 21,061,815 Capital Project Total 5,971,870 Enterprise Fund Total 1,438,826 Internal Service Total 686,475 Budget Carryover Total 41,133,535 General Fund Total 147,810 Special Revenue Total 270,282 Council Action Total 418,092 General Fund Total (3,028,366) Post-Closing Budget Adjustment Total (3,028,366) General Fund Total 4,529,247 Special Revenue Total 4,362,855 Capital Project Total 839,842 Enterprise Fund Total 38,195 Internal Service Total 762,015 Encumbrance Carryover Total 10,532,154 Grand Total 49,055,415 For detailed descriptions of budget amendments, please refer to Attachment C. 2016-17 Fiscal Year End The City of Cupertino is expected to end FY 2016-17 with total expenditures of $134.9 million - $12.8 million lower than budgeted. This decrease in expenditures is due to various savings achieved over several expense categories as summarized in the table below: Expense Category Amended Budget Actual Expenditures (Savings)/ Deficit Description Salary and Benefits 30,318,770 27,898,513 (2,420,257)Due to full time vacancy rate and part time salary savings Materials 6,065,517 5,005,065 (1,060,452)Due to savings in Special Program Expenses, Grant Expenditures, General Supplies, Water Services, and Electrical Services Contracts 28,252,813 25,177,617 (3,075,196)Due to savings in Planning, Building, City Attorney, Recreation, I&T Infrastructure, and Compensated Absence Cost Allocation 15,086,901 15,086,900 1 Slight overage due to rounding Capital Outlays and Special Projects 24,843,486 20,185,568 (4,657,918)Due to savings in Fixed Asset purchases in I&T and special project savings for Main Street, Traffic Impact Fee, and CDD. Contingencies 1,326,154 1,186 (1,324,968) Due to departments having sufficient appropriations Debt Service, Transfers Out and Other Financing Uses 41,766,416 41,529,670 (236,746)Due to decreased depreciation expenses for Equipment Maintenance and Video Total 147,660,058 134,884,519 (12,775,538) 29 4 Total revenue of $145.8 million is expected. This is $46.3 million lower than estimated, primarily due to decreases in charges for services as a result of a change in methodology for the Cost Allocation Plan and decreases in development fees related to housing mitigation and park dedication tax zone. In addition, revenues from Other Financing Sources were higher than budgeted primarily due to increases in refundable deposit revenue from the Apple development. Revenue Category Amended Budget Actual Amount (Overage)/Shortage 05 - Sales tax 25,940,000 26,932,012 992,012 10 - Property tax 20,741,000 20,219,077 (521,923) 15 - Transient occupancy 6,708,000 6,023,681 (684,319) 20 - Utility tax 3,122,000 3,082,408 (39,592) 25 - Franchise fees 2,900,000 3,409,572 509,572 30 - Other taxes 35,234,404 3,258,117 (31,976,287) 35 - Licenses and permits 2,499,000 2,536,924 37,924 40 - Use of money and property 1,120,180 1,752,056 631,876 45 - Intergovernmental revenue 3,570,529 2,600,418 (970,111) 50 - Charges for services 48,690,980 29,535,377 (19,155,603) 55 - Fines and forfeitures 1,102,000 603,193 (498,807) 60 - Miscellaneous 3,026,225 2,325,850 (700,375) 65 - Transfers in 37,199,639 37,665,966 466,327 70 - Other financing sources 247,300 5,829,140 5,581,840 Grand Total 192,101,257 145,773,789 (46,327,468) The table below compares by fund, total budgeted and actual revenue and expenditures, and the resulting changes to the fund balance effective as of FY 2016-17 year-end close. FY 2016-17 Year End Estimates (Revenue, Expenditures and Fund Balance in millions) 30 5 Discussion The primary focus of the First Quarter Financial Report is to provide an update on the current status of the City budget; the report also reviews current revenue and expenditure patterns to ensure that budgets are on track to end the year in a positive fiscal position , and reviews any significant variances in expenditures from the prior fiscal year. General Fund Update Revenue As of the first quarter, General Fund revenue is expected to end the year within projections. Overall revenue is tracking at $2.7 million or 17% lower than last year primarily due to a decrease in charges for services due to a change in the methodology for cost allocation and a decrease in sales tax revenue this year because, in 2017, the city received a one-time sales tax payment from the state to reconcile the “triple-flip”. In addition, revenue increases are driven by transfers in from the Capital Reserve to create the reserve for CalPERS as well as other financing sources such as refundable deposit revenue from the Apple Campus 2 development. Staff will continue to monitor all revenue categories, and as part of the Mid-Year proposal make any necessary revenue projection adjustments. The following table shows the differences between revenues collected as of the first quarter in the current fiscal year and the prior fiscal year: Revenue Category First Quarter 2017 First Quarter 2018 Variance 05 - Sales tax 9,183,818 6,666,889 (2,516,929) 10 - Property tax 42,241 36,740 (5,501) 15 - Transient occupancy 835,973 1,003,046 167,073 20 - Utility tax 538,005 422,586 (115,419) 25 - Franchise fees 207,791 205,058 (2,734) 30 - Other taxes 262,929 299,865 36,936 35 - Licenses and permits 696,591 719,647 23,056 40 - Use of money and property 306,294 404,678 98,384 45 - Intergovernmental revenue 30,689 26,563 (4,125) 50 - Charges for services 3,882,299 2,476,766 (1,405,533) 55 - Fines and forfeitures 63,971 72,214 8,242 60 - Miscellaneous 33,856 151,170 117,314 65 - Transfers in 0 500,001 500,001 70 - Other financing sources 105,555 506,776 401,220 Grand Total 16,190,014 13,491,999 (2,698,015) Expenditures As of the first quarter a few departments are requesting budget adjustments to ensure they end the year within budget appropriations. The recommended adjustments are summarized below: 31 6 Fund Department Expenditure Revenue Fund Balance Description 100 Recreation & Community Services 47,000 - 47,000 4th of July Fireworks 100 Recreation & Community Services 30,000 - 30,000 Customer Service Training for Staff 100 Public Works 350,000 - 350,000 Asset Management Plan for Municipal Water System 100 Innovation & Technology 287,880 287,880 - Transfer Software Costs to Applications 100 Recreation & Community Services 58,435 - 58,435 (58,435) - (58,435) TOTAL GENERAL FUND 714,880 287,880 427,000 260 Community Development (56,938) - (56,938)Update Budget with Final CDBG Numbers TOTAL SPECIAL REVENUE FUND (56,938) - (56,938) 610 Innovation & Technology (287,880) (287,880) - Transfer Software Costs to Applications TOTAL INTERNAL SERVICE FUND (287,880) (287,880) - TOTAL ALL FUNDS 370,062 - 370,062 Recommended Adjustment GENERAL FUND SPECIAL REVENUE FUND INTERNAL SERVICE FUND Reallocating Noontime Program Funds to 100-62-623 (Youth, Teen, and Senior Adult Recreation) and 100-11-165 (Teen Commission) 4th of July Fireworks The City Council allocated one-time funding of $100,000 to the FY 2016-17 budget in May 2017 to support the July 4, 2017 fireworks show. Because of the late timing and trial basis of the 2017 show, no ongoing funding for fireworks was included in the FY 2017-18 Adopted Budget. To adequately resource the July 4, 2018 fireworks show, a FY 2017-18 budget amendment of $47,000 is requested to allow Recreation & Community Services to encumber necessary contracts for professional services with the pyrotechnic firm and to arrange school district permits, all of which occurs in December and January. In order to fund this event annually, $100,000 will be needed each year on an ongoing basis. Asset Management Plan for Municipal Water System The purpose of the Asset Management Plan (AMP) is to provide information that will assist Public Works in understanding a variety of system conditions of the municipal water system (system) leased to San Jose Water Company. The system is comprised of approximately 60 miles of distribution piping, two wells, three above ground reservoirs, a pump station and approximately 4,100 service connections. The system was last operated by the City in 1997 and the current 25 year lease expires in 2022. Available system information has been found to be incomplete or outdated. When completed, the AMP will include a prioritized list of recommended capital improvement projects for years 2018-2028. Information contained within the AMP will be utilized for the remaining term of the lease and to provide system improvement priorities beyond the current lease term as may be applicable. Reallocating Noontime Program Funds For FY 2017-18, $58,435 was budgeted for the Noontime program in the Youth, Teen, and Senior Adult Recreation Program (100-62-623), but was discontinued due to staffing challenges and evolving need within the Cupertino community. In an effort to provide the youth and teen community with enhanced services, staff and the Teen Commission are looking to reallocate funds for the following purposes:  Youth, Teen, and Senior Adult Recreation (100-62-623) o YAC Attack – a biannual leadership summit organized by Cupertino Recreation and YTRS, a youth and teen organization, designed to bring youth and teens 32 7 from the Bay Area to meet other teen leaders. Funding would be used for supplies and staffing. o Cupertino Youth Academy – a leadership program for 14-17 year olds which will give teens a wider perspective on careers in government and non -profit organizations. Funding would be used for transportation, staffing, and supplies. o Spelling Bee – a spelling bee for 4th to 8th graders. Funding would be used for supplies and staffing.  Teen Commission (100-11-165) o Teen Workshops – the Teen Commission would like to have workshops led by either professional speakers or student volunteers. Funding would be for program supplies. o <hack> Cupertino – yearly hackathon for Cupertino teens. Funding would be for event supplies. o Teen Stress Outreach – Teen Commission would like to work on addressing the issue of teen stress in Cupertino. Ideas include outreach and awareness. Funding would go to supplies for this endeavor. Transfer of City Channel/Web Internal Service Fund (615) to the General Fund (100) Governmental Accounting Standards say that internal service funds should be used if the reporting government is the predominant participant in the activity. The City’s City Channel/Web internal service fund pays for all the operating and equipment costs related to City Channel, the City Website, and City applications. Since the main users of these services are the residents of Cupertino, the City has elected to consolidate the City Channel/Web internal service fund with the City’s General Fund. All related budget amendments and actual expense and revenue changes related to the change in fund type have not yet been reflected in the City’s financials but will be complete and reflected in the Mid-Year Financial Report. Fund Balance The FY 2016-17 Amended Budget as of the third quarter anticipated the General Fund would end FY 2016-17 with $45.01 million in total fund balance, of which $11.28 million would be unassigned fund balance. Updated projections as of the first quarter anticipate the City will end FY 2017-18 with $55.77 million in General Fund fund balance - approximately $10.4 million higher than the Final Adopted Budget due to higher revenues received and less expenditures, as described in the sections above. Actuals Year End Projection Adopted Budget First Quarter CLASSIFICATION 2015-16 2016-17 2017-18 2017-18 Non Spendable 0.94 0.94 1.10 0.94 Restricted 0.89 0.69 0.76 0.69 Committed - 11.60 11.60 10.43 Assigned 20.50 20.50 25.19 23.87 UnAssigned 29.87 11.28 6.75 19.85 TOTAL FUND BALANCE 52.19 45.01 45.41 55.77 33 8 To date, the City’s outside auditors have not completed their review of the City’s financials. Revenue, expenditure, and fund balance totals listed in this report are preliminary and subject to change after a full review by the City’s auditors. City Staff does not anticipate many, if any, changes from the auditors. Sustainability Reserve Cupertino’s Sustainability Division oversees the City’s Climate Action Plan (CAP), which defines strategies to reduce greenhouse gas emissions, and provides residents, businesses and schools with programs and services focused on energy efficiency, renewable energy, water conservation, alternative transportation and other sustainable actions. Funding sources and project expenditures for these projects/programs are approved through the budgeting process. Every so often the City receives rebates for projects that successfully meet the eligibility requirements such as energy or water efficiency. If the rebates were not initially budgeted, they are typically categorized as unassigned fund balances in the General Fund. The Sustainability Division requests Council to approve that any unbudgeted rebates or revenue received for sustainability projects be placed in an assigned fund balance within the general fund to help support future sustainability projects/programs. This year this will result in $75,499 of unassigned General Fund Balance to become assigned General Fund Balance. Staffing As part of the final budget, Council approved 198 FTEs. No new positions were added in the first quarter of the 2017-18 Fiscal Year. Performance Measures The City’s performance measures align with government and private industry best practices. City Staff will update Council with the status of performance measures as part of the Mid-Year Budget Report, including prior year totals and current year results through December. Conclusion The First Quarter Financial Report shows the City is well-positioned to move forward. City Staff recommends adjustments of $370,062 in appropriations resulting in an increase use of fund balance of $370,062 across all funds. Prepared by: Budget Team Members - Karen Bernard-Guerin, Thomas Leung, Katy Nomura, and Toni Oasay-Anderson Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: David Brandt, City Manager Attachments: A – Draft Resolution B – First Quarter Financial Report for Fiscal Year 2017-18 C – Detailed Description of Year End and Adjustments made through 9/30/17 D – Budget Journal 34 RESOLUTION NO. 17- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING THE OPERATING BUDGET FOR FISCAL YEAR 2017-18 BY APPROPRIATING, TRANSFERRING, AND UNAPPROPRIATING MONIES FOR SPECIFIED FUNDS WHEREAS, the orderly administration of municipal government is dependent on the establishment of a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and WHEREAS, the extent of any project or program and the degree of its accomplishment, as well as the efficiency of performing assigned duties and responsibilities, is likewise dependent on the monies made available for that purpose; and WHEREAS, the City Manager has determined that fund balances from the specified funds are adequate to cover amended appropriations, and has recommended the allocation of monies for specified funds. NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby ratify the attached amended appropriations. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 5th day of December 2017, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: __ Grace Schmidt, City Clerk Mayor, City of Cupertino Attachment A 35 Appropriation Amendment by Fund Appropriation Amendment Revenue Amendment Fund Balance (Use of) General Fund $ 714,880 $ 287,880 $ (427,000) Special Revenue Fund $ (56,938) $0 $56,938 Internal Service Fund $ (287,880) $ (287,880) $0 Total Appropriation Amendment All Funds $ 370,062 $0 $ (370,062) 36 ¹ To date the City has yet to have its books audited and revenue, expenditure, and fund balance totals listed in this report are preliminary and subject to change after a full review by the City’s auditors. City staff does not anticipate many if any changes from the auditors. ² The additional $0.2 million in fund balance as of first quarter is to provide a funding source for prior year encumbrances and carryover appropriations and Council approve budget actions. *Carryovers/Post-Closing Budget Adjustment includes $41,133,535 in carryovers and a ($3,028,366) in Post-Closing Budget Adjustments. First Quarter Actuals Amended Budget Year End Actuals First Quarter Actuals Amended Budget Year End Actuals First Quarter Actuals Amended Budget Year End Estimates First Quarter Actuals Final Budget Amended Budget FY 2014-15 FY 2015-16 FY 2016-17 FY 2017-18 Revenue $8.3 $56.1 $83.5 $10.3 $68.2 $77.9 $16.2 $89.0 $95.2 $13.5 $80.0 $88.9 Expenditures $19.0 $89.7 $86.2 $13.0 $78.9 $65.0 $18.4 $90.9 $94.0 $17.6 $75.1 $88.7 Fund Balance $(10.7) $(33.6) $(2.7) $(2.7) $(10.7) $12.9 $(2.2) $(1.9) $1.1 $(4.1) $4.9 $0.2 $(60.0) $(40.0) $(20.0) $- $20.0 $40.0 $60.0 $80.0 $100.0 $120.0 In MillionsFIRST QUARTER REPORT The following is the First Quarter Financial Report, submitted by the Administrative Services Department for the period of July 1, 2017 to September 30, 2017 for the 2017-2018 Fiscal Year. It has been prepared to inform the City Council, City leadership and the public of the City’s fiscal status. BACKGROUND - On June 20, 2017, the City Council adopted the Fiscal Year 2017-18 Final Budget for the City of Cupertino. This spending plan of $148,868,179 for all funds reflected a $7,631,924 increase from the 2017-18 Proposed Budget of $141,236,255. This is due to changes recommended by Council at the final budget hearing and adoption that approved the appropriation of: 1) $3 million in Capital Projects and $3 million in transfers out of the Capital Reserve for the Bike Plan, 2) $779,762 in the Capital Improvement Fund and $779,762 in transfers out from the Transportation Fund for the Bike Plan, 3) $50,000 for the Creekside Building Roof Modification, 4) $22,000 in Traffic Engineering for a Senior Mobility Pilot Program, 5) $400 in City Council Community Funding for the Iranian Federated Women’s Club Event. These adjustments include carryovers and encumbrances for obligations from the previous fiscal year, adjustments as part of quarterly financial reports, as well as adjustments approved as part of any separate Council agenda item. Combined, these adjustments result in the amended operating budget of $197,923,594. FY 2017-18 Proposed Budget through the First Quarter | Amended Budget FY 2017-18 | Flow of Funds Chart (in Millions) GENERAL FUND UPDATE - General Fund Revenue, Expenditures and Fund Balance 2 1 ² * * * 37 General Fund Classification of Fund Balance Actuals Year End Projection Adopted Budget First Quarter CLASSIFICATION 2015-16 2016-17 2017-18 2017-18 Non Spendable 0.94 0.94 1.10 0.94 Restricted 0.89 0.69 0.76 0.69 Committed - 11.60 11.60 10.43 Assigned 20.50 20.50 25.19 23.87 UnAssigned 29.87 11.28 6.75 19.85 TOTAL FUND BALANCE 52.19 45.01 45.41 55.77 RECOMMENDED FIRST QUARTER ADJUSTMENTS General Fund Revenue and Expenditure Trends As of September 30, 2017, General Fund expenditures are $17.6 million; this represents 20% of the budgeted appropriations. Expenditures at the first quarter point of the prior three years were between 20% and 22% of the final actual expenditures, placing this year within range. General Fund revenues are at $13.5 million; this represents 15% of the budgeted revenue. Revenues at the first quarter point of the prior three years were between 10% and 17%, placing this year within the range. Are General Fund Revenues and Expenditures on Trend? GENERAL FUND UPDATE (continued) SUMMARY The First Quarter Financial Report shows the City is well-positioned to move forward. City staff recommends adjustments of $370,062 in appropriations resulting in an increase use of fund balance of $370,062 across all funds. Fund Department Expenditure Revenue Fund Balance Description 100 Recreation & Community Services 47,000 - 47,000 4th of July Fireworks 100 Recreation & Community Services 30,000 - 30,000 Customer Service Training for Staff 100 Public Works 350,000 - 350,000 Asset Management Plan for Municipal Water System 100 Innovation & Technology 287,880 287,880 - Transfer Software Costs to Applications 100 Recreation & Community Services 58,435 - 58,435 (58,435) - (58,435) TOTAL GENERAL FUND 714,880 287,880 427,000 260 Community Development (56,938) - (56,938) Update Budget with Final CDBG Numbers TOTAL SPECIAL REVENUE FUND (56,938) - (56,938) 610 Innovation & Technology (287,880) (287,880) - Transfer Software Costs to Applications TOTAL INTERNAL SERVICE FUND (287,880) (287,880) - TOTAL ALL FUNDS 370,062 - 370,062 Recommended Adjustment GENERAL FUND SPECIAL REVENUE FUND INTERNAL SERVICE FUND Reallocating Noontime Program Funds to 100-62-623 (Youth, Teen, and Senior Adult Recreation) and 100-11-165 (Teen Commission) 38 ATTACHMENT C FUND BUDGET ADJUSTMENT TYPE DESCRIPTION AMOUNT 100  General Fund Budget Carryover 55 lights for contractor poles 130,849.00 100  General Fund Budget Carryover AC2 850,000.00 100  General Fund Budget Carryover Apple Park expense Account plan review contracts 621,911.00 100  General Fund Budget Carryover Apple Park expense Account planning contacts 2,238,757.00 100  General Fund Budget Carryover Apple park pay for building inspection 675,566.00 100  General Fund Budget Carryover Bank reconciliation fees and mobile payment 14,400.00 100  General Fund Budget Carryover BBF Pool Pump VFD 64,518.00 100  General Fund Budget Carryover Bike storage/racks 15,000.00 100  General Fund Budget Carryover carry over to new 750‐### North De Anza 125,000.00 100  General Fund Budget Carryover CCBA member 35,000.00 100  General Fund Budget Carryover comm hall millwork 96,140.00 100  General Fund Budget Carryover community garden and BBF improvements 50,000.00 100  General Fund Budget Carryover Conf exp due to dept accreditation & training 12,000.00 100  General Fund Budget Carryover convert ext lights to LED, new dance flr 16,286.00 100  General Fund Budget Carryover Demo garden 59,000.00 100  General Fund Budget Carryover dept accreditation process & professional training expenses 8,000.00 100  General Fund Budget Carryover downstairs renovation, will move to new 900 acct 57,529.00 100  General Fund Budget Carryover drought‐related expenses 50,246.00 100  General Fund Budget Carryover Economic Development contract services 108,084.00 100  General Fund Budget Carryover emergency supplies storage unit 5,400.00 100  General Fund Budget Carryover Employee Commute Program 10,000.00 100  General Fund Budget Carryover EV Charging stations ‐ non‐PGE portion 30,000.00 100  General Fund Budget Carryover Expanding bike fleet 5,000.00 100  General Fund Budget Carryover ext shutter repl., social rm sound dampen/repaint, kitchen up 30,271.00 100  General Fund Budget Carryover fountain maint and equipment 51,038.00 100  General Fund Budget Carryover General Plan Amendment Authorization applications 47,250.00 100  General Fund Budget Carryover General plan Amendmt exp carry over 14,554.00 100  General Fund Budget Carryover Hamptons expense account pass‐through 24,060.00 100  General Fund Budget Carryover Heart of the City account 52,650.00 100  General Fund Budget Carryover Housing Element updates/implementation 20,955.00 100  General Fund Budget Carryover info kiosk, cement pads 36,222.00 100  General Fund Budget Carryover Irrigation controller settlement and replacements 408,579.00 100  General Fund Budget Carryover Janitorial agreement min wage adj, info signage at aquarium 319,485.00 100  General Fund Budget Carryover July 4th Fireworks Show 75,000.00 100  General Fund Budget Carryover Laundry to Landscape Cost Share 5,000.00 100  General Fund Budget Carryover Marina Plaza expense account 68,292.00 100  General Fund Budget Carryover marketing consultant for plan and branding 17,261.00 100  General Fund Budget Carryover Meadow Restoration work at McClellan Ranch 42,500.00 100  General Fund Budget Carryover Money for Lawrence Mitty Annexation 172,980.00 100  General Fund Budget Carryover Monta Vista Specific plan account 175,000.00 100  General Fund Budget Carryover new carpet, vehicle charging station 25,872.00 100  General Fund Budget Carryover new hire office furniture 2,500.00 100  General Fund Budget Carryover Oaks account current planning 441,000.00 100  General Fund Budget Carryover on‐call contracts carry over 150,000.00 100  General Fund Budget Carryover ongoing building records scanning/conversion project 66,608.00 100  General Fund Budget Carryover Paint entry way and stair hand rails 9,200.00 100  General Fund Budget Carryover paint front shop, LED lights in welding, bird netting 36,465.00 100  General Fund Budget Carryover Plan review monitor and computer 10,300.00 100  General Fund Budget Carryover PO2017‐127 carry over recon adj (10,100.00) 100  General Fund Budget Carryover proceeds of Hidden Treasures Event.5,652.00 100  General Fund Budget Carryover PT staff for new software 60,859.00 100  General Fund Budget Carryover record scanning special project 64,199.00 100  General Fund Budget Carryover repaint exterior and floor repair 22,695.00 100  General Fund Budget Carryover repaint inside and out 16,800.00 100  General Fund Budget Carryover repaint interior, new cabinets/sinks/counter 14,100.00 100  General Fund Budget Carryover Replacement Software Annual Maintenance Fee 39,490.00 100  General Fund Budget Carryover Replacement software hardware 35,000.00 100  General Fund Budget Carryover resurfacing asphalt pathways at 8 sites 160,000.00 100  General Fund Budget Carryover Reverse 10088844900965 PW Carryover 2017‐00002279 (179,788.00) 100  General Fund Budget Carryover Safety Grant Funds 6,617.00 100  General Fund Budget Carryover SCB/Bandley Intersection Project 64,923.00 100  General Fund Budget Carryover School Car‐pool App 30,000.00 39 ATTACHMENT C 100  General Fund Budget Carryover Seven Springs Code enforcement 250,000.00 100  General Fund Budget Carryover Signs and rain barrel catchment for demo garden 10,000.00 100  General Fund Budget Carryover Software replacement consultant fees (implementation)96,703.00 100  General Fund Budget Carryover Speaker Series account 25,000.00 100  General Fund Budget Carryover special pass‐through contracts (environmental reviews)600,000.00 100  General Fund Budget Carryover Special project fund for AC2 inspections 723,993.00 100  General Fund Budget Carryover SR2S Program 80,082.00 100  General Fund Budget Carryover Stand for plan review screen 3,800.00 100  General Fund Budget Carryover storm drain repairs 40,000.00 100  General Fund Budget Carryover Summer Intern ‐ Dylan Fara 10,000.00 100  General Fund Budget Carryover Supplies for new supervisors 2,500.00 100  General Fund Budget Carryover supplies for new supervisors and facilities 2,300.00 100  General Fund Budget Carryover Sustainability Commission: speaker series, waste pilot, etc. 5,993.00 100  General Fund Budget Carryover Teen Center equipment, computers 2,000.00 100  General Fund Budget Carryover TICC cellular capacity/coverage negotiations with Vendors 30,000.00 100  General Fund Budget Carryover Traffic impact fee 179,788.00 100  General Fund Budget Carryover Traffic signal firmware 161,215.00 100  General Fund Budget Carryover Training & instruction 23,650.00 100  General Fund Budget Carryover trash capture Vallco Special District 134,750.00 100  General Fund Budget Carryover trash diversion devices 6,825.00 100  General Fund Budget Carryover Tripepi Smith Branding project 23,000.00 100  General Fund Budget Carryover update Stevens Creek Corridor facility 9,999.00 100  General Fund Budget Carryover Vallco account current planning 1,470,500.00 100  General Fund Budget Carryover window film, coating for graffiti 12,933.00 100  General Fund Budget Carryover window replace, card access syst, granite flr rest., aquarium 91,271.00 100  General Fund Budget Carryover yr 2 of 5 for replacement of street light poles 66,072.00 GENERAL FUND TOTAL 11,974,549.00 210  Storm Drain Improvement Budget Carryover CIP Budget Carryovers 1,985,512.00 215  Storm Drain AB1600 Budget Carryover CIP Budget Carryovers 501,083.00 230  Env Mgmt Cln Crk Strm DraBudget Carryover Camera + accessories, stm drain lamination 420.00 230  Env Mgmt Cln Crk Strm DraBudget Carryover storm drain capture devices 60,000.00 260  CDBG Budget Carryover PO2017‐110 carryover Recon adj (15,495.00) 265  BMR Housing Budget Carryover Loan for Charities Housing 3,672,000.00 270  Transportation Fund Budget Carryover annual asphalt project 2,546,650.00 270  Transportation Fund Budget Carryover CIP Budget Carryovers 3,766,572.00 270  Transportation Fund Budget Carryover isolated dig out, crack and fog seal 82,397.00 270  Transportation Fund Budget Carryover PO2016‐499 carry over recon adj (53,540.00) 270  Transportation Fund Budget Carryover regnart road emergency repair 271,207.00 270  Transportation Fund Budget Carryover sidewalk grinding project 10,267.00 270  Transportation Fund Budget Carryover speed bump resurfacing 7,729.00 280  Park Dedication Budget Carryover CIP Budget Carryovers 8,227,013.00 SPECIAL REVENUE TOTAL 21,061,815.00 420  Capital Improvement Fund Budget Carryover 420‐99‐033 Turf Reduction budget carryover 94,191.00 420  Capital Improvement Fund Budget Carryover CIP Budget Carryovers 5,819,046.00 427  Stevens Creek Corridor ParkBudget Carryover CIP Budget Carryovers 58,633.00 CAPITAL PROJECTS TOTAL 5,971,870.00 520  Resource Recovery Budget Carryover Carryover adj due to PO2017‐158 recon (5,040.00) 520  Resource Recovery Budget Carryover Outstanding landfill bills 346,680.00 560  Blackberry Farm Budget Carryover CIP Budget Carryovers 469,418.00 560  Blackberry Farm Budget Carryover Project Delays starting 8/17, should be complete by Oct 2017 27,406.00 570  Sports Center Budget Carryover CIP Budget Carryovers 470,000.00 580  Recreation Program Budget Carryover CIP Budget Carryovers 130,362.00 ENTERPRISE FUND TOTAL 1,438,826.00 610  Innovation & Technology Budget Carryover 5 Cityworks AMS Licenses 5,205.00 610  Innovation & Technology Budget Carryover Activenet, Govlnvest, Accela and other software implementatio 253,000.00 610  Innovation & Technology Budget Carryover MAGNET CONTRACT 29,000.00 610  Innovation & Technology Budget Carryover Vid strg, vRealize, Enhcd Penet., KACE, Ntwk Ref., Email Arch 400,000.00 615  I&T Video and Applications Budget Carryover PO2017‐600 carry over recon adj (27,500.00) 630  Vehicle/Equip Replacement Budget Carryover Flammable liquids cabinet, oil filter crusher 26,770.00 INTERNAL SERVICE TOTAL 686,475.00 BUDGET CARRYOVER TOTAL 41,133,535.00 100  General Fund Council Action CC Approved BA ‐ AC2 TDM Project 147,810.00 GENERAL FUND TOTAL 147,810.00 40 ATTACHMENT C 270  Transportation Fund Council Action Budget Adjustment CC 070517‐Regnart Rd Emerg Repair 270,282.00 SPECIAL REVENUE TOTAL 270,282.00 COUNCIL ACTION TOTAL 418,092.00 100  General Fund Budget/Reclass Transfer Fund 615 ISF to Fund 100 Gen Fund Operating Transfer (3,028,366.00) GENERAL FUND TOTAL (3,028,366.00) POST‐CLOSING BUDGET ADJUSTMENT  TOTAL (3,028,366.00) 100  General Fund Encumbrance Carryover Year End Soft Close 4,529,247.00 GENERAL FUND TOTAL 4,529,247.00 210  Storm Drain Improvement Encumbrance Carryover Year End Soft Close 243,320.00 230  Env Mgmt Cln Crk Strm DraEncumbrance Carryover Year End Soft Close 1,525.00 260  CDBG Encumbrance Carryover Year End Soft Close 15,495.00 265  BMR Housing Encumbrance Carryover Year End Soft Close 28,958.00 270  Transportation Fund Encumbrance Carryover Year End Soft Close 4,073,282.00 280  Park Dedication Encumbrance Carryover Year End Soft Close 275.00 SPECIAL REVENUE TOTAL 4,362,855.00 420  Capital Improvement Fund Encumbrance Carryover Year End Soft Close 708,867.00 427  Stevens Creek Corridor ParkEncumbrance Carryover Year End Soft Close 130,975.00 CAPITAL PROJECTS TOTAL 839,842.00 520  Resource Recovery Encumbrance Carryover Year End Soft Close 9,945.00 560  Blackberry Farm Encumbrance Carryover Year End Soft Close 10,600.00 570  Sports Center Encumbrance Carryover Year End Soft Close 5,750.00 580  Recreation Program Encumbrance Carryover Year End Soft Close 11,900.00 ENTERPRISE FUND TOTAL 38,195.00 610  Innovation & Technology Encumbrance Carryover Year End Soft Close 35,342.00 615  I&T Video and Applications Encumbrance Carryover Year End Soft Close 431,225.00 630  Vehicle/Equip Replacement Encumbrance Carryover Year End Soft Close 295,448.00 INTERNAL SERVICE TOTAL 762,015.00 ENCUMBRANCE CARRYOVER TOTAL 10,532,154.00 GRAND TOTAL 49,055,415.00 41 Fund GL Account Expenditure Revenue Proposal General Fund 100‐61‐605 600‐613 5,000$ 4th of July Fireworks General Fund 100‐61‐605 700‐702 40,000$               4th of July Fireworks General Fund 100‐61‐605 700‐706 2,000$ 4th of July Fireworks General Fund 100‐83‐807 900‐990 350,000$             Asset Management Plan for Municipal Water System General Fund 100‐60‐601 700‐701 30,000$               Customer Service Training for Staff General Fund 100‐62‐623 500‐502 (54,435)$              Reallocating Noontime Program Funds General Fund 100‐62‐623 600‐613 (2,700)$                Reallocating Noontime Program Funds General Fund 100‐62‐623 600‐604 (100)$ Reallocating Noontime Program Funds General Fund 100‐62‐623 600‐632 (1,000)$                Reallocating Noontime Program Funds General Fund 100‐62‐623 700‐701 (200)$ Reallocating Noontime Program Funds General Fund 100‐11‐165 600‐613 19,000$               Reallocating Noontime Program Funds General Fund 100‐62‐623 500‐502 10,935$               Reallocating Noontime Program Funds General Fund 100‐62‐623 600‐613 22,500$               Reallocating Noontime Program Funds General Fund 100‐62‐623 600‐632 1,000$ Reallocating Noontime Program Funds General Fund 100‐62‐623 700‐702 5,000$ Reallocating Noontime Program Funds General Fund 100‐90‐001 450‐404 287,880$             Transfer Software Costs to Applications General Fund 100‐32‐308 600‐606 5,880$ Transfer Software Costs to Applications General Fund 100‐32‐308 600‐606 29,000$               Transfer Software Costs to Applications General Fund 100‐32‐308 700‐702 253,000$             Transfer Software Costs to Applications 714,880$             287,880$              INTERNAL SERVICE FUND Internal Service 610‐90‐001 450‐404 (287,880)$            Transfer Software Costs to Applications Internal Service 610‐34‐310 700‐702 (253,000)$            Transfer Software Costs to Applications Internal Service 610‐90‐989 900‐945 (5,880)$                Transfer Software Costs to Applications Internal Service 610‐90‐989 900‐945 (29,000)$              Transfer Software Costs to Applications (287,880)$            (287,880)$             SPECIAL REVENUE FUND Special Revenue 260‐72‐707 500‐501 (12,848)$              Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 500‐507 (27)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐500 (3,345)$                Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐502 (81)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐505 (2,494)$                Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐506 (200)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐507 (185)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐508 (87)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐509 (89)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐510 (392)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 501‐511 (24)$ Update Budget with Final CDBG Numbers Special Revenue 260‐72‐707 800‐802 (5,068)$                Update Budget with Final CDBG Numbers Special Revenue 260‐72‐709 600‐623 (52,662)$              Update Budget with Final CDBG Numbers Special Revenue 260‐72‐710 600‐623 795$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 500‐501 12,845$               Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 500‐507 27$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐500 3,345$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐502 81$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐505 2,494$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐506 200$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐507 185$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐508 87$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐509 89$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐510 392$ Update Budget with Final CDBG Numbers Special Revenue 265‐72‐711 501‐511 24$ Update Budget with Final CDBG Numbers (56,938)$              ‐$  370,062$             ‐$  GENERAL FUND TOTAL GENERAL FUND TOTAL INTERNAL SERVICE FUND TOTAL SPECIAL REVENUE FUND TOTAL ALL FUNDS Attachment D 42 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-3321 Name: Status:Type:Consent Calendar Approved File created:In control:11/16/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Exceptions to Facility Rental Hours Sponsors: Indexes: Code sections: Attachments:Staff Report Attach A - Facility Rental Information Action ByDate Action ResultVer. ApprovedCity Council12/5/2017 1 Subject: Exceptions to Facility Rental Hours Delegate authority to the Recreation and Community Services Director to approve extended hours for facility rentals. CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™43 RECREATION AND COMMUNITY SERVICES DEPARTMENT QUINLAN COMMUNITY CENTER 10 10185 NORTH STELLING AVENUE • CUPERTINO, CA 95014 TELEPHONE: (408) 777-3120 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: December 5, 2017 Subject Exceptions to Facility Rental Hours Recommended Action Delegate authority to the Recreation and Community Service Director to approve extended hours for facility rentals. Description Staff recommends delegating authority to the Director of Recreation and Community Services to grant exceptions for permits in which the rental hours extend beyond the currently allowable rental hours. Discussion Currently, recreation facilities are available for reservation by individuals and organizations within specific facility rental hours. Facility rental hours are set by City Council in the Facility Rental Policy and any exceptions currently require Council approval. Facility rental hours are outlined in the Facility Rental Information document (Attachment A), and listed below. Facility Rental Hours Quinlan Community Center Sun-Thurs, 8am-10pm Fri-Sat, 8am-11pm Community Hall Sun-Thurs, 8am-10pm Fri-Sat, 8am-11pm Creekside Park Sun-Sat, 10am-10pm Exceptions would be granted on a case-by-case basis to support occasional time sensitive and cultural needs and would be subject to staff availability. Additionally, exceptions may require security at an additional cost to the rental group as determined by the Recreation Supervisor. Sustainability Impact No sustainability impact. 44 Fiscal Impact No fiscal impact. _____________________________________ Prepared by: Rachelle Sander, Recreation Supervisor Reviewed by: Jeff Milkes, Director, Recreation and Community Services Approved for Submission by: David Brandt, City Manager Attachments: A – Facility Rental Information 45 1 Facility Rental Information RESERVATIONS Facility Applications: Applications for the Quinlan Community Center, Community Hall and Creekside Park Building are accepted in person only on a first-come, first-served basis. Applicant must be at least 18 years of age. Reservations are accepted Monday-Friday from 8:00 am-5:00 pm, a minimum of 10 days in advance. To secure a reservation, please bring the following items to the Quinlan Community Center, 10185 N. Stelling Rd, Cupertino, CA: Cupertino Residents  Current utility bill with applicant’s name and address  Security deposit, if applicable Cupertino/ Non-Resident Businesses  Request on a business letterhead and business card  Security deposit, if applicable Cupertino Non-Profit  IRS form 501(c)  Letter on organization’s letterhead signed by an officer or staff member listing under which criteria the organization and/or function qualifies for Cupertino Non-Profit status. See Cupertino Non-Profit information section  Membership list with addresses (if qualifying with 33% residency criteria)  Security deposit, if applicable Non-Resident Non-Profit  IRS form 501(c)  Security deposit, if applicable Non-Residents  Security deposit, if applicable The City reserves the right to deny rental to groups or individuals who have previously used the facility and left it in poor condition. The City also reserves the right to cancel any use of a facility with 2 weeks advance notice. Security Deposit: May be required as determined by Department and stipulated in Facility Use policy. It is due at time of reservation and is refundable in full based on compliance with the rental contract, as well as the clean-up requirements. To receive a full refund on the security deposit, the building must be cleaned and cleared of all guests, rental party, and caterer, etc. at the rental end time. Deposits are generally refunded within 2-3 weeks. Rental Fees: There is a 2-hour minimum for all rentals at Community Hall and Creekside Park and for all weekend rentals at Quinlan Community Center. Rental fees are due 30 days prior to the event. If fees are not paid, the City reserves the right to cancel the reservation and withhold the security deposit. Rentals that exceed the permitted reservation time will be charged an overtime fee of 1.5 times the RECREATION AND COMMUNITY SERVICES DEPARTMENT QUINLAN COMMUNITY CENTER 10185 NORTH STELLING ROAD • CUPERTINO, CA 95014 (408) 777-3120 • FAX (408) 777-1305 46 2 associated hourly fee for any time up to the first half-hour, and 1.5 times the associated hourly fee for every half-hour thereafter. The renter is responsible for all caterers, musicians, photographers, and guests, and may be billed an overtime fee if they exceed the rental time. The renter will be billed for any damages or extra staff time not covered by the deposit. Liability Insurance and Endorsement: A certificate of general liability insurance may be required for all rentals that meet the requirements for the Quinlan Center, Senior Center, and Community Hall as defined in the Facility Use Insurance Requirement Policy. The renter must bring proof of insurance with an endorsement naming the City of Cupertino as additionally insured. They must be submitted at least 30 days prior to the rental date. No reservation will be confirmed without proof of insurance. A certificate of liability insurance can be issued by the renter’s, homeowner’s, or other insurance carrier. The City of Cupertino can also provide insurance for an additional fee. In order for the certificate to be valid, it must contain the following:  The renter’s name must be listed as the one “insured”.  The policy must not expire before the event date.  The policy must be for $1,000,000 per occurrence.  The policy must have “host liquor liability”, if serving alcohol.  The “description” must list the rental location, date of event, and type of event planned.  The City of Cupertino at 10300 Torre Avenue, Cupertino, CA 95014 must be listed as “additional insured.” Cupertino Non-Profits: An organization must meet at least one of the below criteria to qualify for the Cupertino Non-Profit rate: 1) Non-profit organizations with 33% Cupertino resident membership/participation, or 2) Non-profit organizations with a Cupertino business address, or 3) Non-profit organizations that demonstrate service to the Cupertino community, or 4) Government agencies including public schools, or 5) A function held by a non-profit organization that is free and open to the Cupertino public Confirmation: Reservations will not be confirmed until the completed reservation form has been approved, all rental fees and security deposit have been paid, and the insurance certificate and endorsement have been submitted. Approval is dependent upon intended use, availability, and applicants’ agreement to abide by the terms and conditions listed herein. Rental Amendments: Requests to amend reservation times and/or dates must be submitted in writing to the Recreation and Community Services Office at least 10 days before the event date. A maximum of three rental amendments are permitted at no charge. There will be a $10.00 rental amendment fee applied for each additional amendment thereafter. Cancellations/Refunds: A reservation cancelled at least 30 days prior to the reservation date will receive a full refund (security deposit and any paid rental fees). Any cancellation that is made less than 30 days of the rental date will only be refunded the deposit, however, if no rental fees have been paid yet the deposit will not be refunded. All cancellations must be submitted in writing to the Recreation and Community Services office. Cancellations can also be emailed to refunds@cupertino.org. The City reserves the right to cancel any use of a facility with two weeks advance notice. 47 3 RULES AND REGULATIONS Alcohol: ONLY beer, wine, and champagne may be served. Kegs are not permitted. No hard liquor is allowed at any time. A request to serve alcohol must be made at least 30 days prior to the rental date. Failure of notification could result in the loss of your deposit. Security staff is required and provided at a fee of $30.00 per hour, with a minimum of 6 hours. Security staff must be on site until the rental end time. Alcohol may not be consumed outside of any City facility except in enclosed patio or deck areas. Servers must be the legal drinking age of 21. Under-age drinking at any event is strictly prohibited. Liability insurance is required. Smoking: Smoking is not permitted inside any facility or within 25 feet of any City recreation area. This includes all City parks. Renter Conduct: The renter is solely responsible for any and all accidents or injuries to persons or property resulting from the use of the facility. The renter is responsible for the control and supervision of all people in attendance. The renter shall take care that no damage is done to the facility and that all of the attendees conduct themselves in an orderly manner in and around the facility, including the surrounding park areas and parking lot. If damages are occurring or the behavior of the group is deemed inappropriate or unsafe for any reason, the function may be stopped in progress and denied further use of the facilities. In addition, if it becomes necessary during the course of the rental to summon the police for any reason, all or part of the security deposit will be forfeited. Groups composed of minors (under the age of 18) must be supervised by 1 adult for every 15 minors. Minors must be under adult supervision at all times. Dances require the Sheriff’s Department to be present at all times; one Sheriff for every 200 students. The renter is responsible for providing the Sheriff Officer(s). The Sheriff’s office can be reached at (408) 868-6600.  Decorations: The renter is responsible for the set-up and take-down of all decorations, removing tablecloths, utensils, and bottles from the rented room. Renter may use masking tape or painters tape to hang decorations at City facilities with the exception of Community Hall. The only allowed decorations at Community Hall are table and freestanding decorations. No cellophane adhesive tape, nails, staples, thumbtacks, push pins, nails, screws, etc. are allowed. Any open flame is strictly prohibited. Decorations can only be put up on the day of the room rental, during the allotted rental time. All decorations must be taken down and out of the building before the end of the reservation. Birdseed may be thrown at weddings, but only outside the buildings. Absolutely no confetti or rice is allowed indoors or outdoors.  Kitchen and Restrooms: The kitchen area must be left in the condition it was found. The renter is responsible for cleaning up any spills and debris in the kitchen area. Restrooms are to be left in a clean and orderly fashion. The City will furnish restroom supplies.  Damages: Any damage incurred to the walls, windows, tables, chairs, or any of the property will be deducted from the security deposit and is the responsibility of the renter.  Storage: Storage is not available either before or after the event. This includes food, beverages, floral arrangements, equipment, etc.  Opening/Closing Checklist: The renter or event representative must participate in a pre- inspection walk-through of the facility with the building attendant. Anything dissatisfactory must be brought to the attention of the facility attendant IMMEDIATELY so that prompt action can be taken to correct the situation. Failure to do so may result in all or partial withholding of the 48 4 security deposit. In addition, the renter or event representative must participate in a post- inspection walk-through and acknowledge agreement of the findings.  Rental Hours: Quinlan Community Center: Sunday-Thursday, 8am-10pm Friday-Saturday, 8am-11pm Community Hall: Sunday-Thursday, 8am-10pm Friday-Saturday, 8am-11pm Creekside Park: Sunday-Saturday, 10am-10pm Building Attendant: A building attendant will be on duty for the duration of your event. He will set up tables and chairs, unlock and lock the building, inform the renter of the equipment location, answer questions, and enforce the rules of the facility. The attendant is there to assist the renter; however the renter is responsible for their own decorations and clean-up. Gratuities may not be accepted by City employees. Solicitations & Sales: Commercial, concessions, or profit making activities are not allowed at City facilities (does not include Community Hall). This includes charging registration fees, admission fees, or entrance fees of any sort. Failure to adhere to this policy will jeopardize the status of any future rental and may result in your event being shut down. Fundraising events are allowed only for co-sponsored clubs and non-profit groups. 49 5 Pick any combo of up to 2 wireless microphones (ex. 1 lapel and 1 wireless or 2 lapel) Only if not being used elsewhere FACILITY AMENITIES and FEE SCHEDULE Quinlan Community Center - Cupertino Room Capacity - 280 theater style 240 banquet style * A Security Deposit of $500.00 and minimum booking of 2 hours is required for weekend use (Friday 5pm-Sunday) Advance Reservations Mon-Thu Fri-Sun Rental Fees Mon-Fri 5pm Fri 5pm-Sun Cupertino Non-Profit 6 months 1 year $ 30/hr $ 80/hr Cupertino Resident/Cupertino Business 3 months 1 year $168/hr $280/hr Non-Resident Non-Profit 2 months 6 months $ 48/hr $128/hr Non Resident/Non-Resident Business 2 months 9 months $224/hr $368/hr Equipment Provided Quantity Round Tables- 54 inches 35 Rectangle Tables- 8 foot 14 Chairs 280 TV/VCR/DVD/BluRay 1 Wireless microphone with stand 2 Lapel wireless microphone 2 Hardwire microphone with stand 2 Video projector (built-in) 1 Video projector (portable) 1 Projection screen (built-in) 1 Podium 1 A/V Cables - Mac Adapters - Extension Cords - Dry-erase whiteboard (portable) 1 Flip Chart Stands 3 Baby grand piano 1 Flags (U.S., California, Cupertino) 1 of each Refrigerators 3 Freezer 1 Ice Machine 1 Stove/Oven 1 Microwave 1 Coffee Maker (makes 60 cups) 1 Dishwasher 1 50 6 Pick wireless microphone or lapel Quinlan Community Center - Social Room Capacity – 80 *A Security Deposit of $300.00 and minimum booking of 2 hours is required for weekend use (Friday 5pm-Sunday) Advance Reservations Mon-Thu Fri-Sun Rental Fees Mon-Fri 5pm Fri 5pm-Sun Cupertino Non-Profit 6 months 1 year $ 20/hr $ 60/hr Cupertino Resident/Cupertino Business 3 months 1 year $ 72/hr $ 120/hr Non-Resident Non-Profit 2 months 6 months $ 32/hr $ 96/hr Non Resident/Non-Resident Business 2 months 9 months $ 90/hr $150/hr Quinlan Community Center- Conference Room Capacity - 15 *Room is not available for rentals the month of December *Minimum booking of 2 hours is required for weekend use (Friday 5pm-Sunday). *A Security Deposit is NOT required Advance Reservations Mon-Thu Fri-Sun Rental Fees Mon-Fri 5pm Fri 5pm-Sun Cupertino Non-Profit 6 months 1 year $ 10/hr $ 25/hr Cupertino Resident/Cupertino Business 3 months 1 year $ 31/hr $ 52/hr Non-Resident Non-Profit 2 months 6 months $ 16/hr $ 40/hr Non Resident/Non-Resident Business 2 months 9 months $ 39/hr $ 65/hr Equipment Provided Quantity Conference Table 1 Chairs 15 TV/VCR/DVD player 1 Video projector (portable) 1 Projection screen (portable) 1 Dry-erase whiteboard (built-in) 1 Flip Chart Stands 2 Equipment Provided Quantity Round Tables- 54 inches 8 Rectangle Tables- 8 foot 8 Chairs 80 TV/VCR/DVD/BluRay player 1 Wireless microphone with stand 1 Lapel wireless microphone 1 Hardwire microphone with stand 2 Video projector (portable) 1 Projection screen (portable) 1 Podium 1 A/V Cables - Mac Adapters - Extension Cords - Dry-erase whiteboard (portable) 1 Flip Chart Stands 2 Electric keyboard 1 51 7 Pick any combo of up to 8 wireless microphones (ex. 4 lapel and 4 wireless or 8 lapel) Community Hall Capacity - 170 theater style 152 banquet style *A Security Deposit of $500.00 and minimum booking of 2 hours Advance Reservations Mon-Sun Rental Fees Mon-Fri 5pm Fri 5pm-Sun Cupertino Non-Profit 12 months $ 30/hr $ 80/hr Cupertino Resident/Cupertino Business 12 months $120/hr $200/hr Non-Resident Non-Profit 12 months $ 48/hr $128/hr Non Resident/Non-Resident Business 12 months $200/hr $300/hr Creekside Park Building Capacity - 50 *A Security Deposit of $100.00 and minimum booking of 2 hours Advance Reservations Mon-Sun Rental Fees Mon-Fri 5pm Fri 5pm-Sun Cupertino Non-Profit 6 months $ 24/hr $ 39/hr Cupertino Resident/Cupertino Business 6 months $ 48/hr $ 80/hr Non-Resident Non-Profit 3 months $ 30/hr $ 48/hr Non-Resident/Non-Resident Business 3 months $ 60/hr $100/hr Equipment Provided Quantity Rectangle Tables- 6 foot 10 Chairs 50 Refrigerator 1 Freezer 1 Stove/Oven 1 Microwave 1 Sink 1 Rev 10.12.17 Equipment Provided Quantity Round Tables- 54 inches 20 Rectangle Tables- 6 foot 20 Chairs 170 6’ x 8’ Screens 2 Multimedia projectors (built-in) 2 Lectern with DVD and laptop connectors 1 Wireless microphone 8 Lapel wireless microphone 8 BluRay player 1 Flags (U.S., California, Cupertino) 1 of each Refrigerator 1 Dishwasher 1 Sink 1 52 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-3041 Name: Status:Type:Public Hearings Continued File created:In control:9/20/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041). (The applicant is requesting a postponement to January 16, 2018) Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. ContinuedCity Council12/5/2017 1 Subject: Consider a revised request to demolish an existing ~71,254 sq.ft. commercial shopping center and construct a mixed-use development at the Oaks Shopping Center site. (Application No.(s): GPAAuth-2017-02; Applicant: KT Urban (Mark Tersini); Location: 21267 Stevens Creek Boulevard; APN: 326-27-039, -040 and -041).(The applicant is requesting a postponement to January 16, 2018) Continue this item to January 16, 2018 CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™53 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-3120 Name: Status:Type:Public Hearings Conducted First Reading File created:In control:10/10/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Consider an ordinance to establish regulations regarding adult use (recreational) and medicinal marijuana by adding a new Chapter 10.84, Medicinal and Adult Use of Marijuana, in Title 10, amending Chapter 19.08, Definitions, to repeal definitions related to Marijuana and amending Chapter 19.98, Medical Marijuana, to update and reference the newly established Chapter. (Application No(s).: MCA-2017-04; Applicant(s): City of Cupertino; Location: Citywide) Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Ordinance B - PC Reso 6841 showing additions and deletions C - Santa Clara County DA Office memo May 2014 Action ByDate Action ResultVer. Conducted first readingCity Council12/5/2017 1 Subject: Consider an ordinance to establish regulations regarding adult use (recreational) and medicinal marijuana by adding a new Chapter 10.84, Medicinal and Adult Use of Marijuana, in Title 10, amending Chapter 19.08, Definitions, to repeal definitions related to Marijuana and amending Chapter 19.98, Medical Marijuana, to update and reference the newly established Chapter. (Application No(s).: MCA-2017-04; Applicant(s): City of Cupertino; Location: Citywide) That the City Council: 1. Find that the proposed actions are exempt from CEQA; and 2. Conduct the first reading and adopt Ordinance No. 17-2169 entitled “An ordinance of the City Council of the City of Cupertino adding Chapter 10.84 titled ``Medicinal and Adult Use of Marijuana” to Title 10 of the Cupertino Municipal Code; amending Section 19.08.030 to repeal Definitions related to Marijuana; and amending Chapter 19.98 to reference the newly adopted ordinance” (Attachment A.) CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™54 CITY COUNCIL STAFF REPORT Agenda Date: December 5, 2017 Subject Consider an ordinance to establish regulations regarding adult use (recreational) and medicinal marijuana by adding a new Chapter 10.84, Medicinal and Adult Use of Marijuana, in Title 10, amending Chapter 19.08, Definitions, to repeal definitions related to Marijuana and amending Chapter 19.98, Medical Marijuana, to update and reference the newly established Chapter. (Application No(s).: MCA-2017-04; Applicant(s): City of Cupertino; Location: Citywide) Recommended Action That the City Council: 1. Find that the proposed actions are exempt from CEQA; and 2. Conduct the first reading and adopt an ordinance entitled “An ordinance of the City Council of the City of Cupertino adding Chapter 10.84 titled ``Medicinal and Adult Use of Marijuana” to Title 10 of the Cupertino Municipal Code; amending Section 19.08.030 to repeal Definitions related to Marijuana; and amending Chapter 19.98 to reference the newly adopted ordinance” (Attachment A.) Discussion Background: Upon adoption of the Medical Cannabis Regulation and Safety Act (“MCRSA”) by the State of California in September 2015, the City’s Municipal Code was updated to establish regulations regarding medical marijuana businesses, cultivation facilities, transport and deliveries in January 2016. Subsequently, on November 8, 2016, the people of California approved the Control, Regulate and Tax Adult Use of Marijuana Act (“AUMA” or Proposition 64), which decriminalized the non-medical (recreational) use, possession, cultivation my individuals 21 years or older and the establishment of commercial marijuana facilities and businesses in California. The AUMA also established a licensing scheme for non-medical marijuana cultivation and manufacturer, testing, and OFFICE OF COMMUNITY DEVELOPMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 (408) 777-3308 • FAX (408) 777-3333 55 MCA-2017-04 Marijuana – Medicinal and Adult-Use (Recreational) November 14, 2017 Page 2 distribution establishments. The proposed measure, however, allowed local agencies land use control over such uses. While these uses were prohibited under the principles of permissive zoning (any use not enumerated is deemed prohibited) and illegal under federal law, on October 18, 2016, as a preemptive measure in anticipation of the passage of the AUMA, the City Council adopted a temporary moratorium on non-medical marijuana businesses, cultivation facilities, transport and deliveries (Ordinance No. 16-2153.) This urgency ordinance was adopted to ensure that the City retain as much local control as legally possible over the portions of the proposition that went into effect immediately. The City Council further adopted Ordinance Nos. 16-2160 and 17-2167 to extend the initial urgency due to the desire to understand the regulations further. In addition to the adoption of the MCRSA and the AUMA, in June 2017, Governor Brown signed SB 94 (the Medicinal and Adult-Use Cannabis Regulation and Safety Act or “MAUCRSA,”) a budget trailer bill that made significant changes to California’s commercial cannabis regulatory structure. SB 94 effectively repealed the MCRSA (medical marijuana regulations) and incorporated some of its provisions into the licensing provisions of AUMA. MAUCRSA effectively set up a new hybrid regulatory structure and created more operator-friendly standards than under MCRSA. The newly established Bureau of Cannabis Control (BCC) is charged with developing and implementing a regulatory framework for issuing licenses under MAUCRSA. The BCC issued a draft licensing structure in late Summer 2017. However, these were retracted in September 2017 and regulations for a temporary licensing scheme were issued in its stead. It is anticipated that temporary licenses will be issued starting January 1, 2018. Permanent licensing regulations remain under development and it is unclear when these regulations will be available for public review. While MAUCRSA is new and the licensing structure is not fully established, there has been guidance from the state that cities are required to submit their regulations on adult use and medicinal marijuana to the BCC. If this information is not sent to them before they start to issue licenses, the BCC could inadvertently issue licenses for activities not desired within the City. Therefore, staff is proposing a regular ordinance on marijuana regulations. Planning Commission Review: The Planning Commission reviewed the draft ordinance and recommended adoption of the draft ordinance on a 4-0-1 (Sun- absent) vote with Resolution No. 6841 as follows: 56 MCA-2017-04 Marijuana – Medicinal and Adult-Use (Recreational) November 14, 2017 Page 3 1. A proposed amendment to restricting delivery to marijuana to only medicinal marijuana to the extent allowed by State Law; and 2. A request that the City Council consider options to require a registration process for persons cultivating marijuana for personal use indoors. (Information about registration is provided later in this staff report.) Captain Urena from the West Valley Sheriff’s Station spoke on the item and gave a brief presentation on statistics and the adverse effects of marijuana and supported adoption of the proposed draft. A detailed discussion is provided in the report below. Analysis: Proposed Marijuana Regulations Following passage of the MAUCRSA, the city’s existing regulations regarding marijuana require updating in the following areas in order to comply with the minimum requirements of state law as well as put into place land use restrictions that local agencies are allowed under state law: 1. Addressing adult use marijuana by amending the ordinance to clearly clarify that prohibitions on commercial activities apply to both medicinal and adult use (recreational) marijuana; 2. Allowing transport of marijuana, both medicinal and adult-use marijuana, through the City; (the City’s current regulations only allows this under limited circumstances for medicinal marijuana patients) 3. Addressing personal cultivation of marijuana – this includes: a. Banning outdoor personal cultivation and only allowing indoor (within enclosed structures) cultivation of marijuana; (the City’s current regulations allow outdoor and indoor cultivation of medicinal marijuana by qualified patients) and b. Establishing regulations on allowing up to six plants for indoor personal cultivation of marijuana to the extent allowed by state law. State law allows cities to establish “reasonable regulations” to regulate indoor cultivation of marijuana. These regulations are recommended in the interest of public health, safety and welfare, and include: i. Ensuring the use is incidental to the primary residential nature and use of the property, ii. Requiring that the property on which cultivation occurs is the primary residence of the grower; 57 MCA-2017-04 Marijuana – Medicinal and Adult-Use (Recreational) November 14, 2017 Page 4 iii. Ensuring that renters obtain permission to grow marijuana prior to being allowed to grow; iv. Ensuring the cultivation area is in a secure, locked dwelling unit or associated accessory structure; v. Requiring that no external evidence of cultivation is displayed or visible; and vi. Requiring that alterations to the structures comply with all municipal codes including building, fire, electrical, mechanical and zoning. The Santa Clara Sheriff’s Department shares concerns about the secondary effects and adverse impacts associated with the use of marijuana, including negative public health, life safety, fire safety, and environmental issues. This is also reflected in a memo titled “Issues Surrounding Marijuana in Santa Clara County” from the County of Santa Clara’s Office of the District Attorney from 2014 (Attachment C.) Recent data and trend information from Colorado and Washington states, where recreational marijuana is legal, has revealed numerous negative consequences including an increase in the number of impaired drivers, emergency room visits, and traffic fatalities. An increase in marijuana usage among youth is another notable consequence. AUMA and subsequently, MAUCRSA, allows for the cultivation of up to six marijuana plants per residence. It is recommended by the Sheriff’s Department to limit allowed marijuana activity to those that the City cannot disallow. Therefore, the proposed ordinance recommends allowing the cultivation of marijuana indoors only to help minimize criminal activities, such as burglaries and robberies, and to reduce access to minors. In addition to these issues, there are also concerns associated with indoor growing which are also addressed with the proposed regulations. For example, indoor cultivation of marijuana raises concerns about lighting, dehumidification, space heating, cooling, and drying, all of which increase the potential for electrical fires. The proposed amendments to Title 19 reflect the establishment of the new Chapter in Title 10 including elimination of all definitions related to marijuana and updating Chapter 19.98 to replace the redundant and unnecessary information with a reference to the newly established Chapter 10.84. Additional Revisions Recommended by the Planning Commission Delivery of medicinal marijuana As previously mentioned, the Planning Commission recommended that deliveries of marijuana be restricted to those required to be allowed under state law. Currently, state 58 MCA-2017-04 Marijuana – Medicinal and Adult-Use (Recreational) November 14, 2017 Page 5 law only requires that deliveries of medicinal marijuana be allowed. The Planning Commission has concerns about deliveries since due to restrictions under federal law, transactions related to marijuana are largely conducted in cash. The Sheriff has also indicated that determining whether a delivery is being made for medicinal or recreational use would be difficult and would not be enforceable. Staff Recommendation - Due to the issue discussed above it is recommended that all deliveries of marijuana be allowed as long as the person delivering has the appropriate state licenses, is authorized to do so, and the trip does not originate within the City. Registration The Planning Commission requested staff to present options to the City Council on registration by persons cultivating marijuana indoors for personal use. The Commission was also indicated an interest in having an annual inspection process for persons that register to ensure that the cultivation is in compliance with the City’s standards. There are a few cities, such that require registration by persons that cultivate marijuana for personal use. Many of those also allow commercial growth and sale of marijuana and can justify the cost of a registration and inspection process. For cities that only allow a very limited use of indoor growth for personal use, the cost and staffing for such a program would not be justified. Additionally, the Sheriff has concerns about having a publicly available database of persons cultivating marijuana and related security risks of burglaries. A registration and inspection process would have budgetary impacts to the Sheriff’s Department’s contract. Additionally, they believe that inspections for registered personal cultivators may not be very effective. It is unlikely that persons that register with the City would be non-compliant with the City’s standards. It is more likely that persons that wish to skirt the City’s regulations would not register with the City and be non -compliant. Staff Recommendation - Due to the concerns expressed above, a registration and inspection process is not being recommended at this time. Environmental Review: The City has analyzed the actions taken with this proposed Ordinance and determined that it 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 indirectly. 59 MCA-2017-04 Marijuana – Medicinal and Adult-Use (Recreational) November 14, 2017 Page 6 In the event that the actions taken with this proposed Ordinance are 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. Other Department/Agency Review: The proposed changes have been reviewed by the City’s other departments and they do not have any concerns with regard to the proposed amendments. Public Noticing and Public Outreach: The following table is a brief summary of the noticing for this project: Notice of Public Hearing and Legal Ad Agenda  Legal ad placed in newspaper (at least 10 days prior to hearing)  Display ad placed in newspaper (at least 10 days prior to hearing)  Posted on the City's official notice bulletin board (five days prior to hearing)  Posted on the City of Cupertino’s Web site (five days prior to hearing) No comments have been received about the proposed amendments as of the date of production of this report. Permit Streamlining Act: The Permit Streamlining Act does not apply to legislative acts, including the adoption of the proposed ordinance. Sustainability Impact The ordinance includes standards that require energy efficient lighting should grow lights be used. State law has additional provisions on the use and safe disposal of pesticides used in the cultivation of marijuana. Fiscal Impact As proposed, it is not expected that adoption of this ordinance will have a fiscal impact on the City’s budget. Adoption of a registration and inspection process, may have impacts. Conclusion It is recommended that the City Council adopt the draft resolution. If appropriate regulations surrounding commercial marijuana activities are not established, the State BCC may issue licenses for marijuana activities within City limits beginning January 2, 2018. 60 MCA-2017-04 Marijuana – Medicinal and Adult-Use (Recreational) November 14, 2017 Page 7 Should the City Council desire to consider limited commercial marijuana activities within the City, it is recommended that the proposed regulations be established first, and then the effects of marijuana activities be evaluated, prior to considering whether to allow any commercial activities. Next Steps Upon introduction and a first reading by the City Council, the ordinance will need a second reading at a subsequent hearing. The ordinance will be effective 30 days after the second reading. Prepared by: Piu Ghosh Principal Planner Reviewed by: Benjamin Fu, Assistant Director of Community Development Aarti Shrivastava, Assistant City Manager Approved by: David Brandt, City Manager ATTACHMENTS A - Draft Ordinance B - Planning Commission Resolution No. 6841 (showing additions and deletions) C - Memo from Santa Clara County Office of the District Attorney titled “Issues Surrounding Marijuana in Santa Clara County” from 2014. 61 ORDINANCE NO. ______________ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ADDING CHAPTER 10.84 TITLED ``MEDICINAL AND ADULT USE OF MARIJUANA” TO TITLE 10 OF THE CUPERTINO MUNICIPAL CODE; AMENDING SECTION 19.08.030 TO REPEAL DEFINITIONS RELATED TO MARIJUANA; AND AMENDING CHAPTER 19.98 TO REFERENCE THE NEWLY ADOPTED ORDINANCE WHEREAS, 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.; and WHEREAS, under the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., the use, possession, and cultivation of marijuana for both medical and recreational uses are currently unlawful and subject to federal prosecution; and WHEREAS, 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; and WHEREAS, in 1996, California voters approved Proposition 215 ("CUA"), codified in Health and Safety Code Section 11362.5 et seq., which created a limited exception from criminal liability for seriously ill persons who need marijuana for medical purposes. In January 2004, the state Legislature enacted the "Medical Marijuana Program" (MMP), Health and Safety Code sections 11362.7 to 11362.83, to clarify the scope of the CUA, establish a voluntary program for identification cards issued by counties for qualified patients and primary caregivers, and provide criminal immunity to qualified patients and primary caregivers for certain activities involving medical marijuana, including the collective or cooperative cultivation of medical marijuana; and WHEREAS, in January 2016, the legislature passed AB 266, AB 243, and SB 643, collectively known as the Medical Cannabis Regulation and Safety Act ("MCRSA"), which govern cultivation, processing, transporting, testing, and distribution of medical marijuana to qualified patients. MCRSA expressly preserves local control over medical marijuana facilities and land uses, including the authority to prohibit all medical marijuana businesses and cultivation completely, newly-added Health & Safety Code section 11362.777(c)(4) provides that if a city does not have a land use regulation or ordinance regulating or prohibiting marijuana cultivation, either expressly or otherwise 62 under principles of permissive zoning, or chooses not to administer a conditional permit program under that section, then commencing March 1, 2016, the state Department of Food and Agriculture will become the sole licensing authority for marijuana cultivation in that jurisdiction; and WHEREAS, on February 2, 2016, the City Council adopted Ordinance Number 16- 2140, clarifying the City of Cupertino’s longstanding prohibition on cultivation, distribution, sale, and delivery of medical marijuana in the City to ensure that the City maintained local control of these issues after passage of the MCRSA; and WHEREAS, California voters on November 8, 2016 approved the Control, Regulate and Tax Adult Use of Marijuana Act ("the AUMA"), which legalizes possession, use, and cultivation of non-medical marijuana for adults. Under this law, cities retained local control to prohibit or regulate adult-use marijuana through local ordinances, zoning and land use requirements, and the state will not issue a state license in violation of local laws; and WHEREAS, while medical marijuana cultivation and all commercial medical marijuana uses are prohibited under the City's current zoning regulations, the Cupertino Municipal Code does not address cultivation and delivery of non-medical marijuana within its jurisdiction; moreover, the prohibition against transportation of marijuana through City of Cupertino is not consistent with AUMA; and WHEREAS, SB 94, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (the “MAUCRSA,”) signed into law in June 2017, made significant changes to California’s commercial cannabis regulatory structure. SB 94 in effect repealed the MCRSA (medical marijuana regulations) and incorporated some of its provisions into the licensing provisions of AUMA. MAUCRSA effectively set up a new hybrid regulatory structure and created more operator-friendly standards than under MCRSA; WHEREAS, many California communities that have legalized recreational or medical marijuana uses have experienced and reported adverse impacts and negative secondary effects from marijuana establishments, cultivation sites, processing and distribution activities including hazardous construction, unsafe electrical wiring, noxious odors and fumes affecting neighboring properties and businesses, illegal sales and distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests, and the diversion of medical marijuana to minors; and WHEREAS, the Santa Clara County District Attorney’s Office issued a May 2014 63 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 with this ordinance and on file with the City Clerk; and WHEREAS, it is reasonable to conclude that medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, including marijuana processing could cause similar adverse impacts on the public health, safety, and welfare in Cupertino; and WHEREAS, marijuana plants produce a strong odor, offensive to many people, that may be detectable far beyond property boundaries if grown outdoors. This condition also creates an attractive nuisance, by alerting persons to the location of the plants, and creating a risk of burglary, robbery or armed robbery; and WHEREAS, when marijuana is grown and/or processed indoors, growing and processing equipment can have the potential to cause harm to persons or property by creating fire hazards. Many cities in the state have reported or responded to fires resulting from marijuana activity. Indoor cultivation operations are frequently unattended and utilize high wattage grow lamps, generators, or other equipment, or may be illegally wired to allow such equipment to function. This excessive energy use can overload electrical systems and cause fires; and WHEREAS, state marijuana laws do not confer a land use right or the right to create or maintain a public nuisance. However, under MAUCRSA the city must adopt an ordinance establishing laws and regulations on marijuana facilities and activities otherwise the State may become the licensing authority. The MAUCRSA also requires delivery services to be expressly prohibited by local ordinance, if the City desires to prohibit delivery. Similarly, the cities have explicit authority to adopt and enforce local ordinances, including zoning and land use requirements, to regulate marijuana businesses or to completely prohibit the establishment or operation of such businesses within the city’s jurisdiction. No State license will be approved for a business that violates local ordinances; and WHEREAS, the City Council desires to update the marijuana regulations in the Cupertino Municipal Code to maintain the City’s existing prohibition on commercial marijuana activities, and expressly make clear, in light of passage of the AUMA, that all such uses (whether medical or recreational) continue to be prohibited in all zones 64 throughout the City, preserve local control over such uses, and protect the public from the health and safety risks described above; and WHEREAS, the City Council has determined that express Municipal Code provision regarding medical marijuana dispensaries, marijuana cultivation facilities, and commercial cannabis activities will benefit the public by providing clear guidelines regarding the scope of prohibited conduct and minimize the potential for confusion regarding the City’s policies, and WHEREAS, the Planning Commission held a duly noticed public hearing on November 14, 2017, at which time it considered all evidence presented, both written and oral, and at the end of the hearing recommended that the Council adopt the recommended changes to the City’s zoning code; and WHEREAS, the City Council held a duly noticed public hearing on this ordinance on December 21, 2017, at which time it considered all evidence presented, both written and oral; WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Ordinance; and WHEREAS, in order to protect the public health, safety, and welfare of Cupertino residents and to minimize the negative impacts from commercial marijuana activities, including the personal cultivation of marijuana, the City Council desires to add Cupertino Municipal Code Chapter 10.84 and to amend Chapters 19.08 and 19.98 to prohibit, in express terms, most commercial cannabis activities including medical marijuana dispensaries, commercial cultivation of marijuana and outdoor cultivation of marijuana for personal use and to regulate deliveries, transportation, and indoor cultivation of marijuana for personal use; and WHEREAS, the City has analyzed the actions taken with this proposed Ordinance and determined that it 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 indirectly; and WHEREAS, in the event that the actions taken with this proposed Ordinance are 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; and 65 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 10.48, Medicinal and Adult Use of Marijuana, is adopted and established in Title 10, Public Peace, Safety and Morals, of the Cupertino Municipal Code to read as follows: CHAPTER 10.84: MEDICINAL AND ADULT USE OF MARIJUANA Section 10.84.010 Purpose. 10.84.020 Definitions. 10.84.030 Commercial Marijuana Activities Prohibited. 10.84.040 Possession, Delivery, Distribution, and Indoor Cultivation of Marijuana. 10.84.050 Enforcement, Remedies and Declaration of Public Nuisance. 10.84.010 Purpose. The purpose of this Chapter is for the City Council to exercise its police and regulatory powers derived from Section 7 of Article XI of the California Constitution and state law to promote the health, safety and general welfare of the residents and businesses of the City of Cupertino and preserve the City’s land use powers, by prohibiting all commercial marijuana activity within the City’s jurisdictional limits, unless preempted by st ate law or authorized by this Chapter. Nothing in this Chapter is intended to circumvent compliance with state law. 10.84.020 Definitions. For purposes of this Chapter, the terms and words in this Section are defined as follows and in accordance with the relevant provisions of state law, as amended from time to time. “Accessory Structures” shall have the meaning set forth in Chapter 19.08, Definitions, of the Cupertino Municipal Code. “Commercial cannabis activity” shall have the same meaning set forth in California Business and Professions Code section 26001(k). “Cultivation” shall have the same meaning as set forth in California Business and Professions Code section 26001(l). “Delivery” shall have the same meaning as set forth in California Business and Professions Code section 26001(p). 66 “Distribution” shall mean the procurement, sale, and transport of cannabis and cannabis products between licensees, as defined in California Business and Professions Code 26001(r). “Identification Card” shall have the same meaning as set forth in state law, including California Health and Safety Code sections 11362.7(g). "Marijuana or cannabis" shall have the meaning set forth in California Business and Professions Code section 26001(f). Marijuana and cannabis are used interchangeably in this Code. The term “marijuana’ shall also include “medical marijuana,” “medicinal marijuana product” and “cannabis product” as defined in Business and Professions Code section 26001. “Marijuana accessories” shall have the same meaning as set forth in California Business and Professions Code section 26001(g). “Marijuana cultivation” shall have the same meaning as set forth in California Business and Professions Code section 26001(l). “Marijuana cultivation site” shall have the same meaning as set forth in California Business and Professions Code section 26001(m). “Marijuana delivery” shall have the meaning set forth in California Business and Professions Code section 26001(p). “Marijuana dispensary” means any business, office, store, facility, location, retail storefront, or wholesale component of any establishment, cooperative or collective that delivers, whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports, sells or provides marijuana to any person for any reason, including members of any medical marijuana cooperative or collective consistent the purposes set forth in California Health and Safety Code section 11362.5. “Medicinal marijuana” and “medicinal marijuana products” shall have the same meaning set forth in California Business and Professions Code section 26001(ai). "Medicinal marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medicinal marijuana or medicinal marijuana product, is sold, made available, and/or distributed. A "medicinal marijuana dispensary" does not include the following facilities that provide medical care and supportive services to a qualified patient, person with an identification card, or employs a primary caregiver providing services to a qualified patient or person with an identification card at that facility: a. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; 67 b. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; c. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; d. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; or e. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. “Marijuana products” shall have the same meaning as set forth in California Business and Professions Code section 26001(i). “Operation” shall have the same meaning set forth in California Business and Professions Code section 26001(ak). “Outdoors” means any location that is not within a fully enclosed and secure structure. “Person” includes any individual, firm, co-partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit. “Primary caregiver” shall have the same meaning as set forth in the California Health and Safety Code section 11362.7. “Private residence” means a legal, house, apartment unit, accessory dwelling unit or other similar residential dwelling. “Qualified patient” shall have the same meaning as set forth in Health and Safety Code section11362.7. “Sale” “Sell,” “sale,” and “to sell” shall have the same meaning as set forth in California Business and Professions Code section 26001(as). 10.84.030 Commercial Marijuana Activities Prohibited. Except as provided in Section 10.84.040, all commercial activities involving marijuana and all outdoor cultivation of marijuana (both commercial and for personal use), whether or not they require a state or local license, are prohibited in all zones in the City. T he City will not issue any permit, license or other entitlement for any commercial marijuana activity or outdoor cultivation of marijuana. 10.84.040 Possession, Delivery, Distribution, and Indoor Cultivation of Marijuana. Notwithstanding the prohibitions in Section 10.84.030 above, the following activities are allowed: A. Possession of marijuana for personal use is allowed to the limited extent authorized 68 under Health and Safety Code section 11357 and 11362.5. B. Delivery of marijuana is allowed in accordance with the following restrictions: 1. Only by Licensees operating with a valid state license and in compliance with laws and regulations of the local jurisdiction where the Licensee is physically located or obtained the license; and 2. Only deliveries to the City of Cupertino are allowed; deliveries may not originate within the City; and 3. Deliveries to a qualified patient or by a primary caregiver to his or her qualified patient are allowed, to the extent allowed by California Business and Professions Code section 26033. C. The use of the City’s public roads by Licensees transporting marijuana or marijuana products to the limited extent authorized by California Business and Professions Code sections 26080(b). D. Indoor marijuana cultivation for personal use is permitted only in a Private Residence, to the limited extent authorized under California Health and Safety Code sections 11362.1 and 11362.2 and subject to the following regulations: 1. The cultivation activity shall be incidental to the primary use of the Private Residence as a dwelling; 2. The property shall be the primary residence of the Person cultivating the marijuana, and the Person shall not participate in cultivation in any other location within the City; 3. If the Private Residence is rental property, written authorization must be obtained from the landlord, property owner or property manager prior to commencement of cultivation. Nothing in this section prohibits a landlord or property owner from imposing more stringent standards than those outlined in this section. No marijuana cultivation may occur in violation of a lease or rental agreement; 4. Any structure used for indoor cultivation must be fully enclosed, secure, and locked, as required by state law; 5. The cultivation area must be within a Private Residence, or an accessory structure to a Private Residence located entirely on property owned or legally in possession of the Person doing the cultivation; 6. Not more than six (6) mature or immature plants are permitted per Private Residence, regardless of the number of residents occupying the property; 7. The cultivation area must be a single designated area not exceeding 36 square feet measured by canopy or ten (10) linear feet in height; 8. The display or any exterior evidence of marijuana cultivation, including but not limited to marijuana plants, storage of marijuana accessories or pesticides, or 69 processing and curing equipment is strictly prohibited; 9. The use, alterations and additions to the Private Residence, garage, and accessory structures, must comply with all applicable building, fire, plumbing, electrical, housing and zoning codes, including regulations related to lot coverage, set back, height and parking requirements; 10. The use of gas products, including but not limited to, CO2 and butane, CO2 and ozone generators, or other flammable solvents for cultivation or processing is prohibited; 11. Lighting for cultivation shall be energy efficient lighting, such as, light-emitting diodes (LEDs), compact fluorescent lamps (CFLs), or fluorescent lighting and shall not create a fire or safety hazard; 12. A ventilation and filtration system that meets minimum requirements of the adopted edition of the California Building Standards Code or its equivalent(s), is required. It must be designed to ensure that odors from cultivation are not detectable beyond the Private Residence or accessory structure where cultivation occurs, must prevent mold and humidity/moisture, and otherwise protect the health and safety of the occupants and the neighborhood; 13. Cultivation shall not adversely affect the health or safety of the occupants or nearby residents by creating dust, glare, excessive light, heat, noise, noxious gases, odor, smoke, traffic, vibration, or other impacts, and shall not be hazardous due to use, storage or disposal of chemicals, materials, processes, products or wastes. E. Nothing contained in this Section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by state law. 10.84.050 Enforcement, Remedies and Declaration of Public Nuisance. A. Enforcement: This Chapter shall be enforced in accordance with and consistent wit h the enforcement of public health and safety laws, pursuant to Chapter 10 of the Cupertino Municipal Code. B. Remedies: Violations of this Chapter are subject to administrative, civil, and criminal remedies available under state law and the Cupertino Municipal Code, which at the discretion of the City may be pursued concurrently, including without limitation the fines, penalties, abatement orders and other administrative and civil remedies provided under Chapter 1.10 and 1.12 of the Cupertino Municipal Code. Violations of this chapter are subject to criminal citations and prosecution under state law. Notwithstanding the penalties set forth above, no provision authorizes a criminal prosecution, arrest or penalty inconsistent with or prohibited under California Health and Safety Code Section 11362.5. 70 In the event of any conflict between the penalties enumerated in this section of the Cupertino Municipal Code and any penalties set forth in state law, the maximum penalties allowable under state law shall govern. SECTION 2. Cupertino Municipal Code, Chapter 19.08 of Title 19 is amended to delete the following definitions: “Commercial cannabis activity” shall have the meaning set forth in California Business and Professions Code section 19300.5(k). “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. “Identification Card” shall have the same meaning as set forth in state law, including Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be amended. "Marijuana" means all parts of the plant Cannabis, whether growing or not; the s eeds thereof; the resin extracted from any part of the plant; and every compound manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff, and concentrated cannabis and the separated resin, whether crude or petrified, obtained from marijuana. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. "Medical marijuana" is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code § 11362.7. “Marijuana cultivation facility” means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. A “marijuana cultivation facility” does not include a “qualified patient’s” primary residence provided such cultivation of medical marijuana is for his or her personal use. "Medical marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medical marijuana is sold, made available, delivered, transported, and/or distributed. A "medical marijuana dispensary" does not include the following uses: 71 a. A “qualified patient” transporting “medical marijuana” for his or her personal use; b. A “primary caregiver” delivering or transporting “medical marijuana” to a “qualified patient;” c. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; d. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; e. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; f. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; or g. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. “Primary caregiver” shall have the same meaning as set forth in state law, including Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be amended. “Qualified patient” shall have the same meaning as set forth in state law, including Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be amended. SECTION 3. Chapter 19.98, “Medical Marijuana,” is repealed in its entirety. The new provision of Chapter 19.98 is retitled “Marijuana” and hereby adopted to reference the new municipal provisions regulating marijuana under Chapter 10.84 of the Cupertino Municipal Code as follows: CHAPTER 19.98: MARIJUANA 19.98.010 Marijuana. All commercial cannabis activities including marijuana cultivation, as defined in Chapter 10.84, are prohibited uses in all zoning districts in the City of Cupertino, except to the extent permitted by state law and Chapter 10.84 of the Cupertino Municipal Code. SECTION 4. FINDINGS. The following findings are made under Cupertino Municipal Code section 19.152.030(D): (1) The proposed Ordinance conforms with the latest adopted general plan for the City in that a prohibition against marijuana cultivation facilities, medical marijuana dispensaries, and commercial cannabis activities, 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. (2) The proposed Ordinance will protect the public health, safety, and welfare and promote the orderly development of the City in th at prohibiting marijuana cultivation 72 facilities, medical marijuana dispensaries, and commercial cannabis activities will protect the City from the adverse impacts and negative secondary effects connected with these activities. (3) The proposed Ordinance is consistent with Municipal Code Title 19, which currently bans marijuana cultivation facilities, medical marijuana dispensaries, and commercial cannabis activities under principles of permissive zoning. (4) The 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. SECTION 5. SEVERABILITY. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 6. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days from and after adoption as provided by Government Code Section 36937. SECTION 7. CERTIFICATION. The City Clerk shall certify the adoption of this Ordinance and shall give notice of its ado ption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 19th day of January, 2016 and ENACTED at a regular meeting of the City Council of the City of Cupertino the ____ of _______ 2016, by the following vote: Vote: Members of the City Council Ayes: Noes: Absent: Abstain: 73 ATTEST: APPROVED: _______________________ ___________________________________ City Clerk Mayor, City of Cupertino 74 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6841 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING THAT THE CITY COUNCIL ADOPT THE PROPOSED ORDINANCE ADDING CHAPTER 10.84 TITLED ``MEDICINAL AND ADULT USE OF MARIJUANA” TO TITLE 10 OF THE CUPERTINO MUNICIPAL CODE; AMENDING SECTION 19.08.030 TO REPEAL DEFINITIONS RELATED TO MARIJUANA; AND AMENDING CHAPTER 19.98 TO REFERENCE THE NEWLY ADOPTED ORDINANCE The Planning Commission having heard this matter on No vember 14, 2017 during a regularly noticed public hearing, and after hearing from the public and considering staff’s recommendations; NOW, THEREFORE, the Planning Commission recommends adoption of the proposed Ordinance in substantially the form as shown in Exhibit “A” attached hereto, with two proposed changes: 1. Allow deliveries of medicinal marijuana only while prohibiting deliveries of recreational marijuana; AND 2. Have staff present options to the City Council for consideration o f a registration program for in-door cultivation participants to enable the City to regulate and inspect sites where marijuana for personal use is cultivated indoors. PASSED AND ADOPTED this 14th day of November 2017, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES: COMMISSIONERS: Vice Chair Paulsen, Liu, Fung, Takahashi NOES: COMMISSIONERS: none ABSTAIN: COMMISSIONERS: none ABSENT: COMMISSIONERS: Chair Sun ATTEST: APPROVED: /s/ Benjamin Fu /s/Geoffrey Paulsen Benjamin Fu Geoffrey Paulsen Assist. Director of Community Development Vice Chair, Planning Commission 75 EXHIBIT A ORDINANCE NO. ______________ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ADDING CHAPTER 10.84 TITLED ``MEDICINAL AND ADULT USE OF MARIJUANA” TO TITLE 10 OF THE CUPERTINO MUNICIPAL CODE; AMENDING SECTION 19.08.030 TO REPEAL DEFINITIONS RELATED TO MARIJUANA; AND AMENDING CHAPTER 19.98 TO REFERENCE THE NEWLY ADOPTED ORDINANCE WHEREAS, 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.; and WHEREAS, under the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., the use, possession, and cultivation of marijuana for both medical and recreational uses are currently unlawful and subject to federal prosecution; and WHEREAS, 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; and WHEREAS, in 1996, California voters approved Proposition 215 ("CUA"), codified in Health and Safety Code Section 11362.5 et seq., which created a limited exception from criminal liability for seriously ill persons who need marijuana for medical purposes. In January 2004, the state Legislature enacted the "Medical Marijuana Program" (MMP), Health and Safety Code sections 11362.7 to 11362.83, to clarify the scope of the CUA, establish a voluntary program for identification cards issued by counties for qualified patients and primary caregivers, and provide criminal immunity to qualified patients and primary caregivers for certain activities involving medical marijuana, including the collective or cooperative cultivation of medical marijuana; and WHEREAS, in January 2016, the legislature passed AB 266, AB 243, and SB 643, collectively known as the Medical Cannabis Regulation and Safety Act ("MCRSA"), which govern cultivation, processing, transporting, testing, and distribution of medical marijuana to qualified patients. MCRSA expressly preserves local control over medical marijuana facilities and land uses, including the authority to prohibit all medical marijuana businesses and cultivation completely, newly-added Health & Safety Code section 11362.777(c)(4) provides that if a city does not have a land use regulatio n or 76 ordinance regulating or prohibiting marijuana cultivation, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program under that section, then commencing March 1, 2016, the state Department of Food and Agriculture will become the sole licensing authority for marijuana cultivation in that jurisdiction; and WHEREAS, on February 2, 2016, the City Council adopted Ordinance Number 16- 2140, clarifying the City of Cupertino’s longstanding prohibition on cultivation, distribution, sale, and delivery of medical marijuana in the City to ensure that the City maintained local control of these issues after passage of the MCRSA; and WHEREAS, California voters on November 8, 2016 approved the Control, Regulate and Tax Adult Use of Marijuana Act ("the AUMA"), which legalizes possession, use, and cultivation of non-medical marijuana for adults. Under this law, cities retained local control to prohibit or regulate adult-use marijuana through local ordinances, zoning and land use requirements, and the state will not issue a state license in violation of local laws; and WHEREAS, while medical marijuana cultivation and all commercial medical marijuana uses are prohibited under the City's current zoning regulations, the Cupertino Municipal Code does not address cultivation and delivery of non-medical marijuana within its jurisdiction; moreover, the prohibition against transportation of marijuana through City of Cupertino is not consistent with AUMA; and WHEREAS, SB 94, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (the “MAUCRSA,”) signed into law in June 2017, made significant changes to California’s commercial cannabis regulatory structure. SB 94 in effect repealed the MCRSA (medical marijuana regulations) and incorporated some of its provisions into the licensing provisions of AUMA. MAUCRSA effectively set up a new hybrid regulatory structure and created more operator-friendly standards than under MCRSA; WHEREAS, many California communities that have legalized recreational or medical marijuana uses have experienced and reported adverse impacts and negative secondary effects from marijuana establishments, cultivation sites, processing and distribution activities including hazardous construction, unsafe electrical wiring, noxious odors and fumes affecting neighboring properties and businesses, illegal sales and distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests, and the diversion of medical marijuana to minors; and 77 WHEREAS, 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 with this ordinance and on file with the City Clerk; and WHEREAS, it is reasonable to conclude that medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, including marijuana processing could cause similar adverse impacts on the public health, safety, and welfare in Cupertino; and WHEREAS, marijuana plants produce a strong odor, offensive to many people, that may be detectable far beyond property boundaries if grown outdoors. This condition also creates an attractive nuisance, by alerting persons to the location of the plants, and creating a risk of burglary, robbery or armed robbery; and WHEREAS, when marijuana is grown and/or processed indoors, growing and processing equipment can have the potential to cause harm to persons or property by creating fire hazards. Many cities in the state have reported or responded to fires resulting from marijuana activity. Indoor cultivation operations are frequently unattended and utilize high wattage grow lamps, generators, or other equipment, or may be illegally wired to allow such equipment to function. This excessive energy use can overload electrical systems and cause fires; and WHEREAS, state marijuana laws do not confer a land use right or the right to create or maintain a public nuisance. However, under MAUCRSA the city must adopt an ordinance establishing laws and regulations on marijuana facilities and activities otherwise the State may become the licensing authority. The MAUCRSA also requires delivery services to be expressly prohibited by local ordinance, if the City desires to prohibit delivery. Similarly, the cities have explicit authority to adopt and enforce local ordinances, including zoning and land use requirements, to regulate marijuana businesses or to completely prohibit the establishment or operation of such businesses within the city’s jurisdiction. No State license will be approved for a business that violates local ordinances; and WHEREAS, the City Council desires to update the marijuana regulations in the Cupertino Municipal Code to maintain the City’s existing prohibition on commercial marijuana activities, and expressly make clear, in light of passage of the AUMA, that all such uses (whether medical or recreational) continue to be prohibited in all zones 78 throughout the City, preserve local control over such uses, and protect the public from the health and safety risks described above; and WHEREAS, the City Council has determined that express Municipal Code provision regarding medical marijuana dispensaries, marijuana cultivation facilities, and commercial cannabis activities will benefit the public by providing clear guidelines regarding the scope of prohibited conduct and minimize the potential for confusion regarding the City’s policies, and WHEREAS, the Planning Commission held a duly noticed public hearing on November 14, 2017, at which time it considered all evidence presented, both written and oral, and at the end of the hearing recommended that the Council adopt the recommended changes to the City’s zoning code; and WHEREAS, the City Council held a duly noticed public hearing on this ordinance on December 21, 2017, at which time it considered all evidence presented, both written and oral; WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Ordinance; and WHEREAS, in order to protect the public health, safety, and welfare of Cupertino residents and to minimize the negative impacts from commercial marijuana activities, including the personal cultivation of marijuana, the City Council desires to add Cupertino Municipal Code Chapter 10.84 and to amend Chapters 19.08 and 19.98 to prohibit, in express terms, most commercial cannabis activities including medical marijuana dispensaries, commercial cultivation of marijuana and outdoor cultivation of marijuana for personal use and to regulate deliveries, transportation, and indoor cultivation of marijuana for personal use; and WHEREAS, the City has analyzed the actions taken with this proposed Ordinance and determined that it 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 indirectly; and WHEREAS, in the event that the actions taken with this proposed Ordinance are 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; and 79 WHEREAS, deletions are shown with strike-throughs and additions are underlined to make it easier for the Council and the public to follow the legislative changes; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 10.48, Medicinal and Adult Use of Marijuana, is adopted and established in Title 10, Public Peace, Safety and Morals, of the Cupertino Municipal Code to read as follows: CHAPTER 10.84: MEDICINAL AND ADULT USE OF MARIJUANA Section 10.84.010 Purpose. 10.84.020 Definitions. 10.84.030 Commercial Marijuana Activities Prohibited. 10.84.040 Possession, Delivery, Distribution, and Indoor Cultivation of Marijuana. 10.84.050 Enforcement, Remedies and Declaration of Public Nuisance. 10.84.010 Purpose. The purpose of this Chapter is for the City Council to exercise its police and regulatory powers derived from Section 7 of Article XI of the California Constitution and state law to promote the health, safety and general welfare of the residents and businesses of the City of Cupertino and preserve the City’s land use powers, by prohibiting all commercial marijuana activity within the City’s jurisdictional limits, unless preempted by st ate law or authorized by this Chapter. Nothing in this Chapter is intended to circumvent compliance with state law. 10.84.020 Definitions. For purposes of this Chapter, the terms and words in this Section are defined as follows and in accordance with the relevant provisions of state law, as amended from time to time. “Accessory Structures” shall have the meaning set forth in Chapter 19.08, Definitions, of the Cupertino Municipal Code. “Commercial cannabis activity” shall have the same meaning set forth in California Business and Professions Code section 26001(k). “Cultivation” shall have the same meaning as set forth in California Business and Professions Code section 26001(l). 80 “Delivery” shall have the same meaning as set forth in California Business and Professions Code section 26001(p). “Distribution” shall mean the procurement, sale, and transport of cannabis and cannabis products between licensees, as defined in California Business and Professions Code 26001(r). “Identification Card” shall have the same meaning as set forth in state law, including California Health and Safety Code sections 11362.7(g). "Marijuana or cannabis" shall have the meaning set forth in California Business and Professions Code section 26001(f). Marijuana and cannabis are used interchangeably in this Code. The term “marijuana’ shall also include “medical marijuana,” “medicinal marijuana product” and “cannabis product” as defined in Business and Professions Code section 26001. “Marijuana accessories” shall have the same meaning as set forth in California Business and Professions Code section 26001(g). “Marijuana cultivation” shall have the same meaning as set forth in California Business and Professions Code section 26001(l). “Marijuana cultivation site” shall have the same meaning as set forth in California Business and Professions Code section 26001(m). “Marijuana delivery” shall have the meaning set forth in California Business and Professions Code section 26001(p). “Marijuana dispensary” means any business, office, store, facility, location, retail storefront, or wholesale component of any establishment, cooperative or collective that delivers, whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports, sells or provides marijuana to any person for any reason, including members of any medical marijuana cooperative or collective consistent the purposes set forth in California Health and Safety Code section 11362.5. “Medicinal marijuana” and “medicinal marijuana products” shall have the same meaning set forth in California Business and Professions Code section 26001(ai). "Medicinal marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medicinal marijuana or medicinal marijuana product, is sold, made available, and/or dist ributed. A "medicinal marijuana dispensary" does not include the following facilities that provide medical care and supportive services to a qualified patient, person with an identification card, or employs a primary caregiver providing services to a qualified patient or person with an identification card at that facility: 81 a. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; b. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; c. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; d. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; or e. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. “Marijuana products” shall have the same meaning as set forth in California Business and Professions Code section 26001(i). “Operation” shall have the same meaning set forth in California Business and Professions Code section 26001(ak). “Outdoors” means any location that is not within a fully enclosed and secure structure. “Person” includes any individual, firm, co-partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit. “Primary caregiver” shall have the same meaning as set forth in the California Health and Safety Code section 11362.7. “Private residence” means a legal, house, apartment unit, accessory dwelling unit or other similar residential dwelling. “Qualified patient” shall have the same meaning as set forth in Health and Safety Code section11362.7. “Sale” “Sell,” “sale,” and “to sell” shall have the same meaning as set forth in California Business and Professions Code section 26001(as). 10.84.030 Commercial Marijuana Activities Prohibited. Except as provided in Section 10.84.040, all commercial activities involving marijuana and all outdoor cultivation of marijuana (both commercial and for personal use), whether or not they require a state or local license, are prohibited in all zones in the City. The City will not issue any permit, license or other entitlement for any commercial marijuana activity or outdoor cultivation of marijuana. 10.84.040 Possession, Delivery, Distribution, and Indoor Cultivation of Marijuana. Notwithstanding the prohibitions in Section 10.84.030 above, the following activities are allowed: 82 A. Possession of marijuana for personal use is allowed to the limited extent authorized under Health and Safety Code section 11357 and 11362.5. B. Delivery of marijuana is allowed in accordance with the following restrictions: 1. Only by Licensees operating with a valid state license and in compliance with laws and regulations of the local jurisdiction where the Licensee is physically located or obtained the license; and 2. Only deliveries to the City of Cupertino are allowed; deliveries may not originate within the City; and 3. Deliveries to a qualified patient or by a primary caregiver to his or her qualified patient are allowed, to the extent allowed by California Business and Professions Code section 26033. C. The use of the City’s public roads by Licensees transporting marijuana or marijuana products to the limited extent authorized by California Business and Professions Code sections 26080(b). D. Indoor marijuana cultivation for personal use is permitted only in a Private Residence, to the limited extent authorized under California Health and Safety Code sections 11362.1 and 11362.2 and subject to the following regulations: 1. The cultivation activity shall be incidental to the primary use of the Private Residence as a dwelling; 2. The property shall be the primary residence of the Person cultivating the marijuana, and the Person shall not participate in cultivation in any other location within the City; 3. If the Private Residence is rental property, written authorization must be obtained from the landlord, property owner or property manager prior to commencement of cultivation. Nothing in this section prohibits a landlord or property owner from imposing more stringent standards than those outlined in this section. No marijuana cultivation may occur in violation of a lease or rental agreement; 4. Any structure used for indoor cultivation must be fully enclosed, secure, and locked, as required by state law; 5. The cultivation area must be within a Private Residence, or an accessory structure to a Private Residence located entirely on property owned or legally in possession of the Person doing the cultivation; 6. Not more than six (6) mature or immature plants are permitted per Private Residence, regardless of the number of residents occupying the property; 7. The cultivation area must be a single designated area not exceeding 36 square feet measured by canopy or ten (10) linear feet in height; 8. The display or any exterior evidence of marijuana cultivation, including but not 83 limited to marijuana plants, storage of marijuana accessories or pesticides, or processing and curing equipment is strictly prohibited; 9. The use, alterations and additions to the Private Residence, garage, and accessory structures, must comply with all applicable building, fire, plumbing, electrical, housing and zoning codes, including regulations related to lot coverage, set back, height and parking requirements; 10. The use of gas products, including but not limited to, CO2 and butane, CO2 and ozone generators, or other flammable solvents for cultivation or processing is prohibited; 11. Lighting for cultivation shall be energy efficient lighting, such as, light-emitting diodes (LEDs), compact fluorescent lamps (CFLs), or fluorescent lighting and shall not create a fire or safety hazard; 12. A ventilation and filtration system that meets minimum requirements of the adopted edition of the California Building Standards Code or its equivalent(s), is required. It must be designed to ensure that odors from cultivation are not detectable beyond the Private Residence or accessory structure where cultivation occurs, must prevent mold and humidity/moisture, and otherwise protect the health and safety of the occupants and the neighborhood; 13. Cultivation shall not adversely affect the health or safety of the occupants or nearby residents by creating dust, glare, excessive light, heat, noise, noxious gases, odor, smoke, traffic, vibration, or other impacts, and shall not be hazardous due to use, storage or disposal of chemicals, materials, processes, products or wastes. E. Nothing contained in this Section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by state law. 10.84.050 Enforcement, Remedies and Declaration of Public Nuisance. A. Enforcement: This Chapter shall be enforced in accordance with and consistent with the enforcement of public health and safety laws, pursuant to Chapter 10 of the Cupertino Municipal Code. B. Remedies: Violations of this Chapter are subject to administrative, civil, and criminal remedies available under state law and the Cupertino Municipal Code, which at the discretion of the City may be pursued concurrently, including without limitation the fines, penalties, abatement orders and other administrative and civil remedies provided under Chapter 1.10 and 1.12 of the Cupertino Municipal Code. Violations of this chapter are subject to criminal citations and prosecution under state law. Notwithstanding the penalties set forth above, no provision authorizes a criminal prosecution, arrest or penalty inconsistent with or prohibited under California Health and Safety Code Section 11362.5. 84 In the event of any conflict between the penalties enumerated in this section of the Cupertino Municipal Code and any penalties set forth in state law, the maximum penalties allowable under state law shall govern. SECTION 2. Cupertino Municipal Code, Chapter 19.08 of Title 19 is amended to delete the following definitions: “Commercial cannabis activity” shall have the meaning set forth in California Business and Professions Code section 19300.5(k). “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. “Identification Card” shall have the same meaning as set forth in state law, including Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be amended. "Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff, and concentrated cannabis and the separated resin, whether crude or petrified, obtained from marijuana. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. "Medical marijuana" is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code § 11362.7. “Marijuana cultivation facility” means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. A “marijuana cultivation facility” does not include a “qualified patient’s” primary residence provided such cultivation of medical marijuana is for his or her personal use. "Medical marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medical marijuana is sold, made available, delivered, transported, and/or distributed. A "medical marijuana dispensary" does not include the following uses: 85 a. A “qualified patient” transporting “medical marijuana” for his or her personal use; b. A “primary caregiver” delivering or transporting “medical marijuana” to a “qualified patient;” c. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; d. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; e. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; f. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; or g. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. “Primary caregiver” shall have the same meaning as set forth in state law, including Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be amended. “Qualified patient” shall have the same meaning as set forth in state law, including Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be amended. SECTION 3. Chapter 19.98, “Medical Marijuana,” is repealed in its entirety. The new provision of Chapter 19.98 is retitled “Marijuana” and hereby adopted to reference the new municipal provisions regulating marijuana under Chapter 10.84 of the Cupertino Municipal Code as follows: CHAPTER 19.98: MARIJUANA 19.98.010 Marijuana. All commercial cannabis activities including marijuana cultivation, as defined in Chapter 10.84, are prohibited uses in all zoning districts in the City of Cupertino, except to the extent permitted by state law and Chapter 10.84 of the Cupertino Municipal Code. SECTION 4. FINDINGS. The following findings are made under Cupertino Municipal Code section 19.152.030(D): (1) The proposed Ordinance conforms with the latest adopted general plan for the City in that a prohibition against marijuana cultivation facilities, medical marijuana dispensaries, and commercial cannabis activities, 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. (2) The proposed Ordinance will protect the public health, safety, and welfare and promote the orderly development of the City in th at prohibiting marijuana cultivation 86 facilities, medical marijuana dispensaries, and commercial cannabis activities will protect the City from the adverse impacts and negative secondary effects connected with these activities. (3) The proposed Ordinance is consistent with Municipal Code Title 19, which currently bans marijuana cultivation facilities, medical marijuana dispensaries, and commercial cannabis activities under principles of permissive zoning. (4) The 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. SECTION 5. SEVERABILITY. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 6. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days from and after adoption as provided by Government Code Section 36937. SECTION 7. CERTIFICATION. The City Clerk shall certify the adoption of this Ordinance and shall give notice of its ado ption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 19th day of January, 2016 and ENACTED at a regular meeting of the City Council of the City of Cupertino the ____ of _______ 2016, by the following vote: Vote: Members of the City Council Ayes: Noes: Absent: Abstain: 87 ATTEST: APPROVED: _______________________ ___________________________________ City Clerk Mayor, City of Cupertino 88 County of Santa Clara Office of the District Attorney 70 West Hedding Street, West Wing, 5th Floor San Jose, California 95110 (408) 299-7400 Jeffrey F. Rosen District Attorney Issues Surrounding Marijuana in Santa Clara County By Patrick Vanier, Supervisor of Narcotics Prosecution Team Business Practices that Epitomize the Problems with the Proliferation of Marijuana Dispensaries In 2014, the Santa Clara County District Attorney’s Office prosecuted a case involving the transportation and possession for sale of six pounds of dried marijuana and twelve pounds of concentrated cannabis. The defendant told investigators he was delivering marijuana from a vendor on behalf of his San Jose-based marijuana club. During trial, the director of the marijuana club, described as a “marijuana dispensary,” testified to the business practice and organization of the club. The club consists of approximately 14,000 members between 2 “stores” in San Jose. 50 “vendors” throughout California sourced this “dispensary” with marijuana. Within the marijuana industry, the term “vendor” refers to a person who supplies marijuana to dispensaries and receives compensation for the product. The director identified the 50 vendors as persons who have marijuana cultivation sites which he has neither visited nor inspected. This particular dispensary does not pay city or state sales tax, or any income tax. The club generates approximately $1 million a year in annual sales involving approximately 100 pounds of dried marijuana bud, 30-40 pounds of wax (a form of concentrated cannabis) and varying quantities of cannabis products in other forms. The concentrated cannabis products are primarily manufactured using butane or other chemical solvents. This method of manufacturing is a crime under California Health and Safety Code section 11379.6 because of the hazards associated with production. The business practices and organization of this club epitomize the many problems resulting from the proliferation of marijuana clubs in Santa Clara County. Illegal marijuana cultivation operations generate a significant number of collateral crimes on the supply side. For example, marijuana clubs and dispensaries self-monitor in the absence of government oversight. Therefore, there is no way to be sure how and from whom the clubs are acquiring their inventory of cannabis products. Law enforcement agencies have gathered valuable intelligence that some clubs are selling marijuana harvested by illegal cultivation operations. This intelligence has been documented through arrested individuals, “vendor” membership agreements or Prop 215 notices referencing local dispensaries, and subpoenaed club records. Marijuana Case Trends The District Attorney’s Office observed the following trends based on recent cases prosecuted by the Office. The following statistics include only issued cases, not pending investigations. Between 2011 and 2013, the Office issued criminal charges against 172 illegal marijuana growing operations. Of these cases, 118 were 89 Page 2 identified as “indoor grows” and 54 were classified as “outdoor grows.” Once again, these numbers only reflect a representative sample of cultivation operations within Santa Clara County. Indoor Grow Operations While indoor marijuana grow operations can be found in a variety of settings, including warehouses, barns, and back rooms of business establishments, the most common locations were single family homes in residential neighborhoods. These are locations where entire rental properties or vacant foreclosed homes are converted into clandestine greenhouses. The interior rooms for these homes are typically modified without construction permits, without permission from the banks (usually involving squatters) or knowledge of the rental property owners. With no regard to safety, structural integrity or value to the property, these former residences are generally ransacked. Often times the electricity to homes where cultivation operations are present have been haphazardly rewired or compromised in other forms to accommodate the equipment – e.g. grow lights, fans, irrigation pumps, timers. Electrical circuit boxes are modified to bypass electricity from the power company’s meters (usually PG&E) resulting in the theft of millions of dollars in energy. House fires associated to residential marijuana gardens are frequently caused by the theft of power. Investigators also report tremendous amounts of moisture and standing water inside these indoor grows from leaking water sources, as well as humidity associated with the indoor process. Standing water is a breeding ground for caustic spores, black mold and fungus. Puddles of water combined with extension cords and exposed wiring create electrical hazards. First responders typically wear protective gear and respirators to avoid these dangers. Of 118 indoor marijuana grows over the last three years:  76 involved converted homes,  2 involved converted warehouses, and  41 of these locations were identified as rental properties. In at least 61 of these cases, electrical bypasses were observed where theft of power was deemed present and there were 5 house fires associated to indoor cultivations. The victim homeowners for these vandalized properties are by and large burdened with hundreds of thousands of dollars in clean up costs from indoor grows. Outdoor Grow Operations The other source of harvested marijuana comes from outdoor marijuana gardens. A large number of outdoor cultivation operations reviewed by the District Attorney’s Office were investigated by the Santa Clara County Marijuana Eradication Team (MET). Over the last three years, the MET team reported the removal of 355,005 marijuana plants and the seizure of 1,838 pounds of processed marijuana bud derived mostly from outdoor grow locations. These outdoor grow sites were typically discovered by detectives in remote areas of unincorporated Santa Clara County – eastern foothills of Milpitas and San Jose, Gilroy and Morgan Hill foothills, the base of the Santa Cruz mountains and the eastern foothills of Los Gatos, Los Altos and Saratoga. Marijuana gardens have been found on public lands (e.g. Henry Coe State Park and Midpeninsula Regional Open Space District) and private property in varying sizes. These grows can have a few hundred plants over a small plot of land or tens of thousands of marijuana bushes spread over many acres. The number of marijuana plants will determine the yield potential for an operation. Most law enforcement experts conservatively estimate that a single marijuana plant can produce about 1 to 2 pounds of marijuana valued at $1,500 to $3,000 per pound (wholesale pricing). During harvesting periods for outdoor cultivations, May through October, the number of individual harvests for a single location can also impact 90 Page 3 the profitability of the enterprise. Experienced growers can get two or three harvests on a single plot of land each year. The same is true for indoor marijuana locations, however, such locations can obviously grow year round. The level of sophistication of these outdoor grows can vary as well. Some outdoor operations have only one or two experienced cultivators, while others have teams of migrant farm workers tending to the crop. The single most important variable for any outdoor grow is a nearby water source. Many outdoor operations are set up near creeks, rivers or reservoirs. Water is diverted without regulatory permits or permission from landowners. There have been numerous instances of water diverted to illegal marijuana grows from nearby legitimate farms. Illegal outdoor marijuana cultivators pollute waterways with pesticides, rodent poisons, human feces, trash, and soil erosion. Wardens with the California Department of Fish and Wildlife assist MET detectives with these investigations and recommend the charging of environmental crimes associated with marijuana cultivation. Of the 54 outdoor marijuana gardens charged between 2011-2013, at least 24 of the grow sites were on private land and 11 were on public property/open space. Environmental crimes were charged in 21 of these cases. Other Associated Crimes In addition to the crimes and social impacts unique to the two styles of marijuana cultivation, other alarming trends have been noted. Within the sample size of the 172 cases referenced above, firearms were located in 36 investigations. Other controlled substances, e.g. methamphetamine, were found in 25 cultivation sites. Children were reported present in 10 instances. Serious or violent felony crimes, e.g. burglary, robbery or assaults using deadly weapons, were reported in 8 investigations. In 2012, one investigation of an outdoor marijuana garden resulted in an officer involved shooting when one of the marijuana growers pointed a loaded .22 caliber semi-automatic rifle at a Fish and Wildlife Warden. Organized Crime Probably one of the least talked about issues involving marijuana grows has been the influence of organized crime. Law enforcement has documented numerous instances of organized crime controlling the cultivation of marijuana. Conservatively, at least 8 documented instances of Mexican National Drug Cartels and/or criminal street gangs have been tied to marijuana grows. At one outdoor marijuana operation, investigators found written references to the Sinaloa Drug Cartel and a drawing of “Jesus Malverde,” the patron saint of drug traffickers. At another indoor-marijuana grow, officers found a “Santa Muerte” statute, a Mexican cult figure associated with violence, criminality, and the illegal drug trade. Within the last five years, the U.S. Drug Enforcement Administration (DEA) and the Santa Clara County Sheriff’s Office Multi-Jurisdictional Methamphetamine Enforcement Team (CAL-MMET) have identified multiple cartel drug trafficking cells operating within the county. These organizations are poly drug traffickers distributing methamphetamine, cocaine, heroin and marijuana. Through a variety of investigative techniques, DEA and CAL-MMET have learned that both indoor and outdoor marijuana cultivation is just one of many lucrative businesses operated by cartels to supplement the trafficking of methamphetamine and cocaine from Mexico. Mexican drug distributors will engage in human trafficking to bring farm workers up from the territorial regions the cartels control – Sinaloa or Michoacan – to tend to the cultivations. DEA and CAL-MMET investigations have resulted in the arrest of several high ranking drug distributors who have described to investigators firsthand how marijuana cultivation is a significant component to their overall business. Law enforcement has also seen the rise of multiple Vietnamese criminal street gangs distributing marijuana within Santa Clara County. In 2010, California Department of Justice, Bureau of Narcotics Enforcement, investigated the Insane Viet Thugs (IVT), a documented street gang distributing marijuana and other 91 Page 4 narcotics, as well as firearms. Agents learned through the investigation that IVT was managing a network of grow houses and distributing drugs throughout the Bay Area – San Jose to Vallejo. The investigation of IVT resulted in the service of 22 search warrants throughout the Bay Area and the prosecution of 22 validated or associate gang members, the seizure of approximately 1,500 marijuana plants from 5 indoor grow houses (a total of 7 grow houses were identified during the investigation) over 71 lbs of harvested marijuana, 16 firearms (including 3 assault weapons), over $110,000 in U.S. Currency and various quantities of heroin, cocaine, methamphetamine and ecstasy. The information provided in this narrative demonstrates how the lack of any significant regulatory schemes to control the supply of marijuana to dispensaries is impacting public safety and quality of life within the county. DA Jeff Rosen supports Santa Clara County’s efforts to establish comprehensive guidelines designed to prevent the dangerous and illegal activities from illegal cultivation and distribution of marijuana. 92 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:117-3358 Name: Status:Type:Ordinances and Action Items Adopted File created:In control:11/28/2017 City Council On agenda:Final action:12/5/2017 12/5/2017 Title:Subject: Approve the Fifth amendment to the Employment Contract for the City Manager and amend the Appointed Employees' Compensation Program Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Reso approving the Fifth Amendment to the Employment Contract B - Draft Reso amending the Appoined Employees' Compensation Program C - Appointed Employees' Compensation Program - REDLINED D - Appointed Employees' Compensation Program - CLEAN E - Fifth Amendment to the Employment Contract - REDLINED F - Fifth Amendment to the Employment Contract - CLEAN Action ByDate Action ResultVer. AdoptedCity Council12/5/2017 1 Subject: Approve the Fifth amendment to the Employment Contract for the City Manager and amend the Appointed Employees' Compensation Program Adopt Resolution No. 17-114 approving the Fifth amendment to the employment contract for the City Manager and authorizing the Mayor to execute the contract; and Adopt Resolution No. 17-115 amending the Appointed Employees' Compensation Program to reflect changes in compensation for the City Manager. CITY OF CUPERTINO Printed on 2/27/2018Page 1 of 1 powered by Legistar™93 S ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3227 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: December 5, 2017 Subject Approve the fifth amendment to Employment Contract for the City Manager and amend the Appointed Employees’ Compensation Program. Recommended Action Adopt Resolution No. 17-______, approving the fifth amendment to the employment contract for the City Manager and authorizing the Mayor to execute the contract; and Adopt Resolution No. 17-______, amending the Appointed Employees’ Compensation Program to reflect changes in compensation for the City Manager. Discussion The City Council conducted its annual evaluation of the City Manager on November 6, 2017. Consistent with the City’s total compensation survey the City Council desires to adjust the City Manager’s compensation as follows: The monthly base salary of the City Manager shall be increased from $22,398.81 to $23,439.48 representing at 4.646% increase. The amended Employment Contract is submitted for Council approval with an effective date of November 6, 2017. Staff also proposes to amend the Appointed Employees’ Compensation Program to reflect the increase in monthly salary. Fiscal Impact Approval of the above will increase the FY 2017-18 budget appropriations by $10,654 in salary and benefits. ================================================================================ Prepared by: Laura Miyakawa, Human Resources Analyst II Reviewed by: Kristina Alfaro, Director of Administrative Services, and Rocio Fierro, Assistant City Attorney Approved by: Kristina Alfaro, Director of Administrative Services Attachments: A - Draft Resolution approving the Fifth Amendment to the Employment Contract B - Draft Resolution amending the Appointed Employees’ Compensation Program 94 C - Appointed Employees’ Compensation Program - Redlined D - Appointed Employees’ Compensation Program – Clean E - Fifth Amendment to the Employment Contract – Redlined F – Fifth Amendment to the Employment Contract – Clean 95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE FIFTH AMENDMENT TO THE EMPLOYMENT CONTRACT BETWEEN THE CITY OF CUPERTINO AND DAVID BRANDT, CITY MANAGER, AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT WHEREAS, the City Council has conducted an annual evaluation of the City Manager, David Brandt; and WHEREAS, the City Council desires to adjust the City Manager’s salary to put him in parity with other employees based on the salary and benefit survey the City conducted for the position of City Manager, and has authorized a base salary increase of 4.646% from $22,398.81 to $23,439.48 per month; and WHEREAS, the terms, conditions and provisions of the agreement have been reviewed and approved by the Director of Administrative; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned amendment to the City Manager’s employment contract and authorizes the Mayor to execute said amendment on behalf of the City of Cupertino. PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of Cupertino the 5th day of December 2017, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: _________________________ ________________________ Grace Schmidt, City Clerk Mayor City of Cupertino 96 1 RESOLUTION NO. 17- 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 5th day of December 2017 by the following vote: VOTE MEMBERS OF THE CITY COUNCIL AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ______________________________ ______________________________ Grace Schmidt, City Clerk Mayor City of Cupertino 97 2 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 Cuperti no 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 98 3 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 equitabl e 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 October 1, 2016, 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. Effective September 6, 2017, a salary increase of 10% or $21,300 base pay will be added to the City Attorney classification. Effective November 6, 2017, a salary increase of 4.646% or $23,439.48 base pay will be added to the City Manager classification. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016, September 6, 2017, November 6, 2017 99 4 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 a nd 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 sche dule 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 whic h 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. 100 5 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 discou nted 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, destinat ion 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 c ase 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 ma ximum 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. 101 6 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.c om 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 describe d 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 t o 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 Expense s The City will not reimburse or advance payment toward expenses including, but not limited to: 1. The personal portion of any trip; 102 7 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 reim bursement 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 e xpenditure; 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 withi n 30 calendar days of the employee's return on the expense report described in Section VII. 103 8 VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or fina l 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 104 9 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino polic y 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 a monthly automobile allowance as follows, unless waived by employee: Classification Allowance City Manager $350 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 Revised November 6, 2017 105 10 City of Cupertino APPOINTED EMPLOYEES' COMPENSAT ION 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 106 11 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 t he 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 107 12 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 throug h 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 toward s 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 amo unts 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 108 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 p ay 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 109 14 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 hardship s 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 110 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 Publ ic 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 m ay 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 whic h 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 s uch 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 111 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 October 1 2016, 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 October 1, 2016, 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 112 17 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 113 18 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 114 19 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 115 20 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 116 21 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 117 22 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 118 23 Cit y 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 $19,219.10 City Manager $0 $0 $0 $0 $22,232.07 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 $19,363.24 City Manager $0 $0 $0 $0 $22,398.81 Monthly Salary Effective September 6, 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $21,300.00 Monthly Salary Effective November 6, 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $23,439.48 119 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 120 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 equitable y 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 October 1, 2016, 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. Effective September 6, 2017, a salary increase of 10% or $21,300 base pay will be added to the City Attorney classification. Effective November 6, 2017, a salary increase of 4.646% or $23,439.48 base pay will be added to the City Manager classification. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016, September 6, 2017, November 6, 2017 121 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. 122 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. 123 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 limited to: 1. The personal portion of any trip; 124 6 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 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. 125 7 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 126 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 in the following classifications shall be paid a monthly automobile allowance as follows, unless waived by employee: Classification Allowance City Manager $350 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 Revised November 6, 2017 127 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 128 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 129 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. 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 130 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 131 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 132 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 133 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 October 1 2016, 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 October 1, 2016, 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 134 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 135 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 136 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 137 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 138 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 139 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 140 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 $19,219.10 City Manager $0 $0 $0 $0 $22,232.07 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 $19,363.24 City Manager $0 $0 $0 $0 $22,398.81 Monthly Salary Effective September 6, 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $21,300.00 Monthly Salary Effective November 6, 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $23,439.48 141 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 t he 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 142 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 equitabl e 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 October 1, 2016, 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. Effective September 6, 2017, a salary increase of 10% or $21,300 base pay will be added to the City Attorney classification. Effective November 6, 2017, a salary increase of 4.646% or $23,439.48 base pay will be added to the City Manager classification. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016, September 6, 2017, November 6, 2017 143 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 a ttendance 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. 144 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, th en 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 followi ng 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 transp ortation 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, th e 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. 145 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 gr oup 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 equivale nt 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 co nference 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 limited to: 1. The personal portion of any trip; 146 6 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 trav eling 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 employe e's return on the expense report described in Section VII. 147 7 VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or fina l 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 148 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 suffici ent 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 a monthly automobile allowance as follows, unless waived by employee: Classification Allowance City Manager $350 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 Revised November 6, 2017 149 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 t o 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 150 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 supe rvisor'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 151 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 plan s 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 152 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 comp atible 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 153 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 disab ility 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 $25 0,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 154 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 for m 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 amoun ts 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 155 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 October 1 2016, 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 October 1, 2016, 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 156 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 157 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 158 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 159 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) af fected 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 160 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 161 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 162 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 $19,219.10 City Manager $0 $0 $0 $0 $22,232.07 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 $19,363.24 City Manager $0 $0 $0 $0 $22,398.81 Monthly Salary Effective September 6, 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $21,300.00 Monthly Salary Effective November 6, 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Manager $0 $0 $0 $0 $23,439.48 163 Page 1 Revised 11.17.1511.28.17 FOURTH FIFTH AMENDED EMPLOYMENT CONTRACT FOR CITY MANAGER This Amended Employment Contract is made and entered into this 1st 6th day of November, 20176, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, A Municipal Corporation, by and through its City Council (EMPLOYER), and David Brandt (EMPLOYEE). RECITALS: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, desires to employ the services of EMPLOYEE as City Manager. C. EMPLOYEE desires to accept employment as Cupertino City Manager. D. It is the desire of both EMPLOYER and EMPLOYEE to set forth the terms and conditions of said employment. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: ARTICLE 1: TERM OF EMPLOYMENT Section 1.0 1. Term of the Contract: This Contract originally began on September 10, 2012, and will automatically expire on September 9, 2020 unless extended in writing by the parties. It has been amended annually, on August 26, 2013 (First Amendment), October 21, 2014 (Second Amendment), September 6, 2015 (Third Amendment), and November 1, 2016 (Fourth Amendment). The Fifth Amendment is effective November 6, 2017. On or within 30 days of September 9, 2019, EMPLOYEE shall notify EMPLOYER of the expiration date of September 9, 2020. In the event that EMPLOYER does not intend to extend this Contract beyond expiration, it shall notify EMPLOYEE in writing of its intent not to extend prior to the effective date of expiration. Failure of EMPLOYER to provide such notice shall not affect the expiration date of September 9, 2020. Section 1.02. Termination Prior to Expiration. Notwithstanding any provision contained in this Contract to the contrary, EMPLOYEE understands and agrees that he 164 Page 2 Revised 11.17.1511.28.17 serves at the pleasure of EMPLOYER and may be terminated prior to expiration of this Contract at the will of the EMPLOYER, subject only to the severance provisions set forth in Article V of this Contract, and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal Code. In like manner, nothing in this Contract shall prevent, limit, or otherwise interfere with the right of EMPLOYEE to resign at any time from the position of City Manager subject only to the notice provisions set forth in Article V of this Contract and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal Code. EMPLOYEE further acknowledges that EMPLOYER has made no limited expressed, or written assurances of continued employment with the City of Cupertino other than as specifically set forth in this Contract. ARTICLE II: DUTIES AND OBLIGATIONS OF EMPLOYEE Section 2.01. Duties. EMPLOYER hereby agrees to employ EMPLOYEE as City Manager of the City of Cupertino to perform the functions and duties as specified in the Municipal Code, California Constitution, and California Statutes, and to perform such other legally permissible and proper duties and functions as EMPLOYER shall from time to time assign to EMPLOYEE which are reasonably related to the position of City Manager, including but not limited to: A. To see that all laws and ordinances of the City are duly enforced and that all franchises, permits, licenses and privileges granted by the City are faithfully performed and observed; B. To control, order and give directions to all directors of departments and to subordinate officers and employees of the City under his jurisdiction through their department directors, and to transfer employees from one department to another; C. The services and facilities of the City Treasurer and the City Attorney shall be made available to the City Manager to the same extent and in the same manner that the services are available to the City Council; 165 Page 3 Revised 11.17.1511.28.17 D. To appoint, discipline and dismiss any and all officers and employees of the City except those elected by the electors of the City or whose appointment or dismissal is denied to the City Manager under the laws of the state. The power to appoint given in the preceding paragraph does not include the power to create a new position except as provided under Chapter 2.52; E. To attend all meetings of the City Council unless excused there from by the City Council; F. To recommend to the City Council for adoption such measures and ordinances as he deems necessary or expedient; G. To keep the City Council at all times fully advised as to the financial conditions and needs of the City; H. To prepare and submit to the City Council the annual budget and to administer it after adoption; I. To purchase or cause to be purchased all supplies for all of the departments or divisions of the City. No expenditures shall be submitted or recommended to the City Council except on report and approval of the City Manager; J. To make investigation into the affairs of the City and any department or division thereof and any Contract or the proper performance of any obligation running to the City; K. To investigate all complaints in relation to matters consuming the administration of the government of the City and in regard to the services maintained by public utilities in the City and to see that all franchises, permits and privileges granted by the City are faithfully observed; L. To execute general supervision over all public buildings, public parks, streets and other public property which are under the control and jurisdiction of the City Council; M. To devote his entire working time, thought and energy to the duties and interests of the City; N. To receive and open all official mail and communications addressed either to the Mayor or to the City Council; 0. To make reports and initiate recommendations as may be desirable or as 166 Page 4 Revised 11.17.1511.28.17 requested by the City Council; P. To perform such other duties and exercise such other powers as may be delegated to him from time to time by ordinance, resolution or other action of the City Council. Section 2.02. Devotion to Duties. EMPLOYEE agrees to devote productive time, ability, and attention to the business of EMPLOYER during the term of this Employment Contract. This Contract shall not be interpreted nor intended to prohibit EMPLOYEE from making passive personal investments, conducting private business affairs or providing volunteer services if those activities do not interfere with the services required under this Contract. Section 2.03. Performance Evaluation Procedures. The City Council shall review and evaluate the performance of the EMPLOYEE at least annually, or on any schedule deemed appropriate by the City Council. Said review and evaluation shall be in accordance with specific criteria developed by EMPLOYER after consultation with EMPLOYEE. ARTICLE III COMPENSATION Section 3.01 Compensation. EMPLOYER agrees to pay to EMPLOYEE for services rendered by him pursuant to this Contract a monthly base salary of $22,232.1223,439.48 as set forth in the Appointed Employees’ Compensation Program, payable in installments at the time as other employees of EMPLOYER are paid. Per the Appointed Employees’ Compensation Program, effective the first full pay period in July 2017, a 0.75% salary increase will be added to the salary range of each classification in the unit. EMPLOYEE'S monthly base salary shall be adjusted by any percentage increase provided in the Appointed Employees’ Compensation Program, generally and shall not be decreased unless in a percentage consistent with a decrease applicable to employees covered under the Appointed Employees’ Compensation Program, generally. Notwithstanding the above, EMPLOYER and EMPLOYEE agree that there shall be no further salary adjustments or bonuses for 20162017. At the time of EMPLOYEE's periodic evaluations, EMPLOYER may consider an 167 Page 5 Revised 11.17.1511.28.17 additional compensation package increase including, but not limited to, merit pay or an additional increase in salary or benefits. Section 3.02 Deferred Compensation. City shall provide to EMPLOYEE the same deferred compensation plan that may be provided to other employees covered under the Appointed Employees’ Compensation Program, if any. ARTICLE IV EMPLOYEE BENEFITS Section 4.01. Automobile Allowance. During the term of this Employment contract, EMPLOYEE, to the extent necessary to perform his duties shall use his own personal vehicle. EMPLOYER, in consideration thereof, shall provide EMPLOYEE an automobile allowance in accordance with the Appointed Employees’ Compensation Program. EMPLOYEE shall be responsible for the payment of all operating expenses of the vehicle, including, but not limited to, gasoline, oil, service and repair, and if necessary, the replacement of his automobile. EMPLOYEE shall procure and maintain, at his expense, a comprehensive automobile liability policy on the vehicle being used by him, in an amount that is acceptable to the EMPLOYER. During the course of this Employment Contract, EMPLOYEE shall provide EMPLOYER with written documentation that said insurance policy is in full force and effect. Section 4.02. Vacation and Sick Leave. EMPLOYEE shall be credited with 10 days of vacation and 5 days of sick leave as of the commencement of employment. Annual vacation and sick leave shall be accrued and administered in the same manner as vacation and sick leave is administered in the Appointed Employees’ Compensation Program of EMPLOYER. Section 4.03. Benefits. EMPLOYEE shall be entitled to receive benefits provided by EMPLOYER at a level no less than that provided to employees covered under the Appointed Employees’ Compensation Program, which presently consist of retirement benefits, family health coverage, life insurance, disability insurance, Cupertino sports club membership, administrative leave, floating holidays and holidays. The benefits so provided are subject to modification during the course of this Contract at the sole and absolute discretion of EMPLOYER at such times and to such extent as EMPLOYER may deem appropriate. However, provided, however, there shall be no reduction in benefits unless EMPLOYER implements the same reduction of benefits to all other employees covered under the Appointed Employees’ 168 Page 6 Revised 11.17.1511.28.17 Compensation Program, (except as specified in this Contract or as otherwise waived or declined by EMPLOYEE). Section 4.04 Professional Dues and Subscriptions. EMPLOYER agrees to pay for professional dues and subscriptions of EMPLOYEE directly related to his duties as City Manager, provided the City Council has made provisions for such costs in the annual budget. Section 4.05 Expenses. EMPLOYEE shall be entitled to reimbursement for all reasonable expenses necessarily incurred by him in the performance of his duties upon presentation of vouchers indicating the amount and purpose thereof, and further provided that such expenses are in accordance with policies established from time to time by EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpose during the term of this Employment Contract. Section 4.06 Moving and Relocation Expenses. EMPLOYER will pay EMPLOYEE the amount of $20,000 intended to be used for relocation, housing and house hunting expenses in EMPLOYEE's discretion. Section 4.07 Professional Development. EMPLOYER hereby agrees to pay travel and subsistence expenses of EMPLOYEE for professional and office travel, meetings, and occasions adequate to continue the professional development of EMPLOYEE and to adequately pursue necessary official functions for EMPLOYER, including but not limited to, city manager associations and other such national, regional, state, local government groups and committees thereof which EMPLOYEE serves as a member, provided the City Council has made provisions for such costs in the annual budget. EMPLOYER also agrees to pay tuition, travel, and subsistence expenses of EMPLOYEE for courses, institutes, and seminars that are necessary for his professional development and of the good of the City provided the City Council has provided for same in the annual budget. Section 4.08 Housing Assistance. EMPLOYEE may elect to receive Housing Assistance in accordance with the EMPLOYER's Housing Assistance Program for Appointed Employees and 169 Page 7 Revised 11.17.1511.28.17 Department Heads in effect as of the execution date of this Contract, which is subject to approval by the City Council. ARTICLE V TERMINATION AND NOTICE Section 5.01. Termination of Employment and Severance: A. Subject to the provisions of Section 2.28 of EMPLOYER's municipal Code, EMPLOYEE serves at the pleasure of EMPLOYER and nothing herein shall be taken to prevent, limit or otherwise interfere with the right of EMPLOYER to terminate the services of EMPLOYEE with or without cause; provided, however, EMPLOYER shall take no action to terminate the services of EMPLOYEE, without cause, within ninety (90) days after an election at which one or more new members are elected to the City Council. There is no express or implied promise made to EMPLOYEE for any form of continued employment. This Contract and the EMPLOYER's municipal Code chapter 2.28 are the sole and exclusive bases for an employment relationship between EMPLOYEE and EMPLOYER. B. If the EMPLOYEE is terminated by the EMPLOYER prior to expiration of this Contract, while still willing and able to perform the duties of the City Manager, EMPLOYER agrees to pay EMPLOYEE a single lump sum payment made on the effective date of termination, in an amount equivalent to nine months aggregate salary and aggregate medical insurance benefit allowance if there are nine or more months prior to the expiration date of this contract. If there are less than nine months remaining the term of the contract, then the single lump sum payment made on the effective day of termination shall be in an amount equal to the monthly aggregate salary and aggregate medical benefit of the EMPLOYEE multiplied by the numbers of months left on the unexpired term of the Contract. If this Contract is not renewed, then EMPLOYER shall either provide EMPLOYEE with nine months prior notice of nonrenewal or shall pay EMPLOYEE a single lump sum payment made on the effective date of termination in an amount equivalent to the difference between nine months aggregate salary and medical insurance benefit allowance computed for the number of months of notice actually given. Any such payment will release EMPLOYER from any further obligations under this Contract. Contemporaneously with the delivery of the severance pay herein above 170 Page 8 Revised 11.17.1511.28.17 set out, EMPLOYEE agrees to execute and deliver to EMPLOYER a release releasing EMPLOYER of all claims that EMPLOYEE may have against EMPLOYER. C. Notwithstanding paragraph (b) above, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under the provisions of paragraph (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without affirmative action by EMPLOYER to terminate, initiate termination proceedings or request resignation. D. Any payment to the EMPLOYEE pursuant to this subsection 5.01 shall be fully reimbursed to the EMPLOYER if the EMPLOYEE is convicted of a crime involving an abuse of his office or position. ARTICLE VI MISCELLANEOUS Section 6.01. Form of Notices. Notices pursuant to this Contract shall be in writing given by deposit in the custody of the United State Postal Service, first class postage prepaid, addressed as follows; A. The City: Mayor and City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 B. EMPLOYEE: David Brandt Address to be inserted at time of relocation: 3500 Granada Avenue, #124 Santa Clara, CA 95051 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Alternatively, notices required pursuant to this Contract may be personally served in the 171 Page 9 Revised 11.17.1511.28.17 same manner as is applicable to civil judicial process. Notice shall be deemed given as of the date of personal service or as of the date three days after deposit of such written notice, postage prepaid, with the United States Postal Service. Section 6.02. Bonding. EMPLOYER shall bear the full cost of any fidelity or other bonds required of EMPLOYEE under any law or ordinance. Section 6.03 Indemnification. EMPLOYER shall defend, save harmless and indemnify EMPLOYEE against any tort, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of EMPLOYEE's duties as City Manager. If EMPLOYER compromises or settles any such claim or suit, EMPLOYER shall pay the amount of any settlement, or if the claim results in a judgment against EMPLOYEE, EMPLOYER shall pay any such judgment. This indemnification does not apply to any act, action or omission arising out of the gross negligence, willful misconduct on the part of EMPLOYEE, or acts EMPLOYEE outside the scope of his duties. Section 6.04 General Provisions. A. The text herein shall constitute the entire Contract between the parties. B. This Contract shall be binding upon and insure to the benefit of the heirs at law and executors of EMPLOYEE. C. This Contract may only be modified upon the written consent of the EMPLOYER and EMPLOYEE. D. In any action to enforce the terms of this Contract the prevailing party shall be entitled to recover reasonable attorney's fees and court costs and other non­reimbursable litigation expenses, such as expert witness fees and investigation expenses. Section 6.05 Severability. If any provision thereof, contained in this Contract is held unconstitutional, invalid or unenforceable, the remainder of this Contract shall be deemed severable, shall not be affected, and shall remain in full force and effect. 172 Page 10 Revised 11.17.1511.28.17 IN WITNESS WHEREOF, EMPLOYER has caused this Contract to be signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and EMPLOYEE has signed and executed this Contract, both in duplicate, the day and year first above written. EMPLOYEE: CITY OF CUPERTINO: CITY MANAGER MAYOR APPROVED AS TO FORM: _____________________________________ Renee Sloan Holtzman Sakai on behalf of the CityRocio V. Fierro Assistant City Attorney Cupertino City Attorney’s Office ATTEST: ____________________ City Clerk 173 Page 1 Revised 11.28.17 FIFTH AMENDED EMPLOYMENT CONTRACT FOR CITY MANAGER This Amended Employment Contract is made and entered into this 6th day of November, 2017, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, A Municipal Corporation, by and through its City Council (EMPLOYER), and David Brandt (EMPLOYEE). RECITALS: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, desires to employ the services of EMPLOYEE as City Manager. C. EMPLOYEE desires to accept employment as Cupertino City Manager. D. It is the desire of both EMPLOYER and EMPLOYEE to set forth the terms and conditions of said employment. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: ARTICLE 1: TERM OF EMPLOYMENT Section 1.0 1. Term of the Contract: This Contract originally began on September 10, 2012, and will automatically expire on September 9, 2020 unless extended in writing by the parties. It has been amended annually, on August 26, 2013 (First Amendment), October 21, 2014 (Second Amendment), September 6, 2015 (Third Amendment), and November 1, 2016 (Fourth Amendment). The Fifth Amendment is effective November 6, 2017. On or within 30 days of September 9, 2019, EMPLOYEE shall notify EMPLOYER of the expiration date of September 9, 2020. In the event that EMPLOYER does not intend to extend this Contract beyond expiration, it shall notify EMPLOYEE in writing of its intent not to extend prior to the effective date of expiration. Failure of EMPLOYER to provide such notice shall not affect the expiration date of September 9, 2020. Section 1.02. Termination Prior to Expiration. Notwithstanding any provision contained in this Contract to the contrary, EMPLOYEE understands and agrees that he 174 Page 2 Revised 11.28.17 serves at the pleasure of EMPLOYER and may be terminated prior to expiration of this Contract at the will of the EMPLOYER, subject only to the severance provisions set forth in Article V of this Contract, and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal Code. In like manner, nothing in this Contract shall prevent, limit, or otherwise interfere with the right of EMPLOYEE to resign at any time from the position of City Manager subject only to the notice provisions set forth in Article V of this Contract and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal Code. EMPLOYEE further acknowledges that EMPLOYER has made no limited expressed, or written assurances of continued employment with the City of Cupertino other than as specifically set forth in this Contract. ARTICLE II: DUTIES AND OBLIGATIONS OF EMPLOYEE Section 2.01. Duties. EMPLOYER hereby agrees to employ EMPLOYEE as City Manager of the City of Cupertino to perform the functions and duties as specified in the Municipal Code, California Constitution, and California Statutes, and to perform such other legally permissible and proper duties and functions as EMPLOYER shall from time to time assign to EMPLOYEE which are reasonably related to the position of City Manager, including but not limited to: A. To see that all laws and ordinances of the City are duly enforced and that all franchises, permits, licenses and privileges granted by the City are faithfully performed and observed; B. To control, order and give directions to all directors of departments and to subordinate officers and employees of the City under his jurisdiction through their department directors, and to transfer employees from one department to another; C. The services and facilities of the City Treasurer and the City Attorney shall be made available to the City Manager to the same extent and in the same manner that the services are available to the City Council; 175 Page 3 Revised 11.28.17 D. To appoint, discipline and dismiss any and all officers and employees of the City except those elected by the electors of the City or whose appointment or dismissal is denied to the City Manager under the laws of the state. The power to appoint given in the preceding paragraph does not include the power to create a new position except as provided under Chapter 2.52; E. To attend all meetings of the City Council unless excused there from by the City Council; F. To recommend to the City Council for adoption such measures and ordinances as he deems necessary or expedient; G. To keep the City Council at all times fully advised as to the financial conditions and needs of the City; H. To prepare and submit to the City Council the annual budget and to administer it after adoption; I. To purchase or cause to be purchased all supplies for all of the departments or divisions of the City. No expenditures shall be submitted or recommended to the City Council except on report and approval of the City Manager; J. To make investigation into the affairs of the City and any department or division thereof and any Contract or the proper performance of any obligation running to the City; K. To investigate all complaints in relation to matters consuming the administration of the government of the City and in regard to the services maintained by public utilities in the City and to see that all franchises, permits and privileges granted by the City are faithfully observed; L. To execute general supervision over all public buildings, public parks, streets and other public property which are under the control and jurisdiction of the City Council; M. To devote his entire working time, thought and energy to the duties and interests of the City; N. To receive and open all official mail and communications addressed either to the Mayor or to the City Council; 0. To make reports and initiate recommendations as may be desirable or as 176 Page 4 Revised 11.28.17 requested by the City Council; P. To perform such other duties and exercise such other powers as may be delegated to him from time to time by ordinance, resolution or other action of the City Council. Section 2.02. Devotion to Duties. EMPLOYEE agrees to devote productive time, ability, and attention to the business of EMPLOYER during the term of this Employment Contract. This Contract shall not be interpreted nor intended to prohibit EMPLOYEE from making passive personal investments, conducting private business affairs or providing volunteer services if those activities do not interfere with the services required under this Contract. Section 2.03. Performance Evaluation Procedures. The City Council shall review and evaluate the performance of the EMPLOYEE at least annually, or on any schedule deemed appropriate by the City Council. Said review and evaluation shall be in accordance with specific criteria developed by EMPLOYER after consultation with EMPLOYEE. ARTICLE III COMPENSATION Section 3.01 Compensation. EMPLOYER agrees to pay to EMPLOYEE for services rendered by him pursuant to this Contract a monthly base salary of $23,439.48 as set forth in the Appointed Employees’ Compensation Program, payable in installments at the time as other employees of EMPLOYER are paid. EMPLOYEE'S monthly base salary shall be adjusted by any percentage increase provided in the Appointed Employees’ Compensation Program, generally and shall not be decreased unless in a percentage consistent with a decrease applicable to employees covered under the Appointed Employees’ Compensation Program, generally. Notwithstanding the above, EMPLOYER and EMPLOYEE agree that there shall be no further salary adjustments or bonuses for 2017. At the time of EMPLOYEE's periodic evaluations, EMPLOYER may consider an additional compensation package increase including, but not limited to, merit pay or an additional increase in salary or benefits. Section 3.02 Deferred Compensation. City shall provide to EMPLOYEE the same 177 Page 5 Revised 11.28.17 deferred compensation plan that may be provided to other employees covered under the Appointed Employees’ Compensation Program, if any. ARTICLE IV EMPLOYEE BENEFITS Section 4.01. Automobile Allowance. During the term of this Employment contract, EMPLOYEE, to the extent necessary to perform his duties shall use his own personal vehicle. EMPLOYER, in consideration thereof, shall provide EMPLOYEE an automobile allowance in accordance with the Appointed Employees’ Compensation Program. EMPLOYEE shall be responsible for the payment of all operating expenses of the vehicle, including, but not limited to, gasoline, oil, service and repair, and if necessary, the replacement of his automobile. EMPLOYEE shall procure and maintain, at his expense, a comprehensive automobile liability policy on the vehicle being used by him, in an amount that is acceptable to the EMPLOYER. During the course of this Employment Contract, EMPLOYEE shall provide EMPLOYER with written documentation that said insurance policy is in full force and effect. Section 4.02. Vacation and Sick Leave. EMPLOYEE shall be credited with 10 days of vacation and 5 days of sick leave as of the commencement of employment. Annual vacation and sick leave shall be accrued and administered in the same manner as vacation and sick leave is administered in the Appointed Employees’ Compensation Program of EMPLOYER. Section 4.03. Benefits. EMPLOYEE shall be entitled to receive benefits provided by EMPLOYER at a level no less than that provided to employees covered under the Appointed Employees’ Compensation Program, which presently consist of retirement benefits, family health coverage, life insurance, disability insurance, Cupertino sports club membership, administrative leave, floating holidays and holidays. The benefits so provided are subject to modification during the course of this Contract at the sole and absolute discretion of EMPLOYER at such times and to such extent as EMPLOYER may deem appropriate. However, , there shall be no reduction in benefits unless EMPLOYER implements the same reduction of benefits to all other employees covered under the Appointed Employees’ Compensation Program, except as specified in this Contract or as otherwise waived or declined by EMPLOYEE. Section 4.04 Professional Dues and Subscriptions. EMPLOYER agrees to pay for professional dues and subscriptions of EMPLOYEE directly related to his duties as City 178 Page 6 Revised 11.28.17 Manager, provided the City Council has made provisions for such costs in the annual budget. Section 4.05 Expenses. EMPLOYEE shall be entitled to reimbursement for all reasonable expenses necessarily incurred by him in the performance of his duties upon presentation of vouchers indicating the amount and purpose thereof, and further provided that such expenses are in accordance with policies established from time to time by EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpos e during the term of this Employment Contract. Section 4.06 Moving and Relocation Expenses. EMPLOYER will pay EMPLOYEE the amount of $20,000 intended to be used for relocation, housing and house hunting expenses in EMPLOYEE's discretion. Section 4.07 Professional Development. EMPLOYER hereby agrees to pay travel and subsistence expenses of EMPLOYEE for professional and office travel, meetings, and occasions adequate to continue the professional development of EMPLOYEE and to adequately pursue necessary official functions for EMPLOYER, including but not limited to, city manager associations and other such national, regional, state, local government groups and committees thereof which EMPLOYEE serves as a member, provided the City Council has mad e provisions for such costs in the annual budget. EMPLOYER also agrees to pay tuition, travel, and subsistence expenses of EMPLOYEE for courses, institutes, and seminars that are necessary for his professional development and of the good of the City provided the City Council has provided for same in the annual budget. Section 4.08 Housing Assistance. EMPLOYEE may elect to receive Housing Assistance in accordance with the EMPLOYER's Housing Assistance Program for Appointed Employees and Department Heads in effect as of the execution date of this Contract, which is subject to approval by the City Council. ARTICLE V TERMINATION AND NOTICE Section 5.01. Termination of Employment and Severance: 179 Page 7 Revised 11.28.17 A. Subject to the provisions of Section 2.28 of EMPLOYER's municipal Code, EMPLOYEE serves at the pleasure of EMPLOYER and nothing herein shall be taken to prevent, limit or otherwise interfere with the right of EMPLOYER to terminate the services of EMPLOYEE with or without cause; provided, however, EMPLOYER shall take no action to terminate the services of EMPLOYEE, without cause, within ninety (90) days after an election at which one or more new members are elected to the City Council. There is no express or implied promise made to EMPLOYEE for any form of continued employment. This Contract and the EMPLOYER's municipal Code chapter 2.28 are the sole and exclusive bases for an employment relationship between EMPLOYEE and EMPLOYER. B. If the EMPLOYEE is terminated by the EMPLOYER prior to expiration of this Contract, while still willing and able to perform the duties of the City Manager, EMPLOYER agrees to pay EMPLOYEE a single lump sum payment made on the effective date of termination, in an amount equivalent to nine months aggregate salary and aggregate medical insurance benefit allowance if there are nine or more months prior to the expiration date of this contract. If there are less than nine months remaining the term of the contract, then the single lump sum payment made on the effective day of termination shall be in an amount equal to the monthly aggregate salary and aggregate medical benefit of the EMPLOYEE multiplied by the numbers of months left on the unexpired term of the Contract. If this Contract is not renewed, then EMPLOYER shall either provide EMPLOYEE with nine months prior notice of nonrenewal or shall pay EMPLOYEE a single lump sum payment made on the effective date of termination in an amount equivalent to the difference between nine months aggregate salary and medical insurance benefit allowance computed for the number of months of notice actually given. Any such payment will release EMPLOYER from any further obligations under this Contract. Contemporaneously with the delivery of the severance pay herein above set out, EMPLOYEE agrees to execute and deliver to EMPLOYER a release releasing EMPLOYER of all claims that EMPLOYEE may have against EMPLOYER. C. Notwithstanding paragraph (b) above, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under the provisions of paragraph (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a 180 Page 8 Revised 11.28.17 violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without affirmative action by EMPLOYER to terminate, initiate termination proceedings or request resignation. D. Any payment to the EMPLOYEE pursuant to this subsection 5.01 shall be fully reimbursed to the EMPLOYER if the EMPLOYEE is convicted of a crime involving an abuse of his office or position. ARTICLE VI MISCELLANEOUS Section 6.01. Form of Notices. Notices pursuant to this Contract shall be in writing given by deposit in the custody of the United State Postal Service, first class postage prepaid, addressed as follows; A. The City: Mayor and City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 B. EMPLOYEE: David Brandt City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Alternatively, notices required pursuant to this Contract may be personally served in the same manner as is applicable to civil judicial process. Notice shall be deemed given as of the date of personal service or as of the date three days after deposit of such written notice, postage prepaid, with the United States Postal Service. Section 6.02. Bonding. EMPLOYER shall bear the full cost of any fidelity or other bonds required of EMPLOYEE under any law or ordinance. Section 6.03 Indemnification. EMPLOYER shall defend, save harmless and indemnify EMPLOYEE against any tort, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the 181 Page 9 Revised 11.28.17 performance of EMPLOYEE's duties as City Manager. If EMPLOYER compromises or settles any such claim or suit, EMPLOYER shall pay the amount of any settlement, or if the claim results in a judgment against EMPLOYEE, EMPLOYER shall pay any such judgment. This indemnification does not apply to any act, action or omission arising out of the gross negligence, willful misconduct on the part of EMPLOYEE, or acts EMPLOYEE outside the scope of his duties. Section 6.04 General Provisions. A. The text herein shall constitute the entire Contract between the parties. B. This Contract shall be binding upon and insure to the benefit of the heirs at law and executors of EMPLOYEE. C. This Contract may only be modified upon the written consent of the EMPLOYER and EMPLOYEE. D. In any action to enforce the terms of this Contract the prevailing party shall be entitled to recover reasonable attorney's fees and court costs and other non-reimbursable litigation expenses, such as expert witness fees and investigation expenses. Section 6.05 Severability. If any provision thereof, contained in this Contract is held unconstitutional, invalid or unenforceable, the remainder of this Contract shall be deemed severable, shall not be affected, and shall remain in full force and effect. IN WITNESS WHEREOF, EMPLOYER has caused this Contract to be signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and EMPLOYEE has signed and executed this Contract, both in duplicate, the day and year first above written. EMPLOYEE: CITY OF CUPERTINO: CITY MANAGER MAYOR APPROVED AS TO FORM: _____________________________________ 182 Page 10 Revised 11.28.17 Rocio V. Fierro Assistant City Attorney Cupertino City Attorney’s Office ATTEST: ____________________ City Clerk 183