HomeMy WebLinkAbout092711 - Agenda Packet 092711 . yl
'a`$ i979CITY OF A TA SCA DERO
CITY COUNCIL
AGENDA
Tuesday, September 27, 2011
City Hall
Council Chambers
6907 EI Camino Real, Atascadero, California
City Council Closed Session: 5:00 p.m.
City Council Regular Session: Immediately upon the conclusion of
the Community Redevelopment
Agency of Atascadero meeting,
which begins at 6:00 p.m.
CITY COUNCIL CLOSED SESSION: 5:00 P.M.
1. CLOSED SESSION -- PUBLIC COMMENT
2. COUNCIL LEAVES CHAMBERS TO BEGIN CLOSED SESSION
3. CLOSED SESSION -- CALL TO ORDER
a. Conference with Legal Counsel — Anticipated Litigation
Initiation of litigation pursuant to Government Code Sec. 54956.9 (c)
One case — Millhollin Mine
b. Public Employee Appointment (Government Code Sec. 54954.5)
Title: Police Chief
4. CLOSED SESSION -- ADJOURNMENT
5. COUNCIL RETURNS TO CHAMBERS
6. CLOSED SESSION -- REPORT
REGULAR SESSION — CALL TO ORDER: Following the conclusion of the
Community Redevelopment Agency
of Atascadero meeting
PLEDGE OF ALLEGIANCE: Mayor Pro Tem Kelley
ROLL CALL: Mayor O'Malley
Mayor Pro Tem Kelley
Council Member Clay
Council Member Fonzi
Council Member Sturtevant
APPROVAL OF AGENDA: Roll Call
A. CONSENT CALENDAR: (All items on the consent calendar are considered to
be routine and non-controversial by City staff and will be approved by one motion
if no member of the Council or public wishes to comment or ask questions. If
comment or discussion is desired by anyone, the item will be removed from the
consent calendar and will be considered in the listed sequence with an
opportunity for any member of the public to address the Council concerning the
item before action is taken. DRAFT MINUTES: Council meeting draft minutes
are listed on the Consent Calendar for approval of the minutes. Should anyone
wish to request an amendment to draft minutes, the item will be removed from
the Consent Calendar and their suggestion will be considered by the City
Council. If anyone desires to express their opinion concerning issues included in
draft minutes, they should share their opinion during the Community Forum
portion of the meeting.)
1. City Council Draft Action Minutes — September 27, 2011
■ Recommendation: Council approve the City Council Draft Action
Minutes of September 27, 2011. [City Clerk]
2. Historic City Hall Project Bid Awards: ACH-20 Electrical Add Alternate
■ Fiscal Impact: The total fiscal impact of this award is $128,000 in
budgeted City Hall Project Funds, including funding from the Community
Redevelopment Agency of Atascadero.
■ Recommendations: Council:
1. Award Add Alternate 14 (Enhanced Lighting Plan) for the Historic
City Hall Project in the amount of$128,000 to Taft Electric; and,
2. Authorize the City Manager to execute an amendment to the contract
with Taft Electric. [Administrative Services]
UPDATES FROM THE CITY MANAGER: (The City Manager will give an oral report on
any current issues of concern to the City Council.)
COMMUNITY FORUM: (This portion of the meeting is reserved for persons wanting to
address the Council on any matter not on this agenda and over which the Council has
jurisdiction. Speakers are limited to three minutes. Please state your name for the
record before making your presentation. Comments made during Community Forum
will not be a subject of discussion. A maximum of 30 minutes will be allowed for
Community Forum, unless changed by the Council. Any members of the public who
have questions or need information, may contact the City Clerk's Office, between the
hours of 8:30 a.m. and 5:00 p.m. at 470-3400, or mtorgerson(a-)_atascadero.org.)
B. PUBLIC HEARINGS: None.
C. MANAGEMENT REPORTS:
1. Response to Grand Jury Report
■ Fiscal Impact: None.
■ Recommendation: Council approve the Response to Grand Jury Report.
[City Attorney]
2. Remittance Agreement Pursuant to California Health and Safety Code
Section 34194.2
■ Fiscal Impact: The fiscal impact to the City as a result of this Remittance
Agreement is that the City will receive tax increment from the Agency to
reimburse the City for the community remittance payments which will be
due on January 15, 2012 and May 15, 2012 in the total amount of
$1,516,774 and the City would also be reimbursed for community
remittance payments in the following years.
■ Recommendation: Council adopt Draft Resolution, approving the
Remittance Agreement pursuant to California Health and Safety Code
Section 34194.2 between Atascadero Community Redevelopment
Agency and the City of Atascadero. [Administrative Services]
3. Storm Water Regulations Update — NPDES Phase II
■ Fiscal Impact: The new regulations have the potential to increase City
General Fund expenditures by hundreds of thousands of dollars each
year in additional testing, monitoring, inspection, enforcement,
housekeeping and reporting duties to increase the control over
stormwater discharges of all types.
■ Recommendation: Council receive information on the latest
developments in State stormwater regulations, and the new NPDES
Phase II provisions being considered by the State Water Resources
Control Board. [Public Works]
COUNCIL ANNOUNCEMENTS AND REPORTS: (On their own initiative, Council
Members may make a brief announcement or a brief report on their own activities.
Council Members may ask a question for clarification, make a referral to staff or take
action to have staff place a matter of business on a future agenda. The Council may
take action on items listed on the Agenda.)
D. COMMITTEE REPORTS: (The following represent standing committees.
Informative status reports will be given, as felt necessary):
Mayor O'Malley
1. City / Schools Committee
2. County Mayors Round Table
3. Integrated Waste Management Authority (IWMA)
4. League of California Cities — CITIPAC Board Member
5. SLO Council of Governments (SLOCOG)
6. SLO Regional Transit Authority (SLORTA)
Mayor Pro Tem Kelley
1. Atascadero State Hospital Advisory Committee
2. Atascadero Youth Task Force
3. City of Atascadero Design Review Committee
4. City of Atascadero Finance Committee
5. Economic Vitality Corporation, Board of Directors (EVC)
6. Homeless Services Oversight Council
Council Member Fonzi
1. Air Pollution Control District
2. City of Atascadero Design Review Committee
3. City of Atascadero Finance Committee
4. SLO Local Agency Formation Commission (LAFCo) - alternate
Council Member Sturtevant
1. City / Schools Committee
2. Community Action Partnership of SLO County
3. League of California Cities — Council Liaison
E. INDIVIDUAL DETERMINATION AND / OR ACTION:
1. City Council
2. City Clerk
3. City Treasurer
4. City Attorney
a. Update on the status of ABX 1 26 and ABX 1 27.
5. City Manager
F. ADJOURNMENT:
Please note: Should anyone challenge any proposed development entitlement listed on this Agenda in court, that
person may be limited to raising those issues addressed at the public hearing described in this notice, or in written
correspondence delivered to the City Council at or prior to this public hearing. Correspondence submitted at this
public hearing will be distributed to the Council and available for review in the City Clerk's office.
I, Victoria Randall, Deputy City Clerk of the City of Atascadero, declare under the penalty of perjury that
the foregoing agenda for the September 27, 2011 Regular Session of the Atascadero City Council was
posted on September 20, 2011, at the Atascadero City Hall, 6907 EI Camino Real, Atascadero, CA
93422 and was available for public review in the Customer Service Center at that location.
Signed this 20th day of September, 2011, at Atascadero, California.
Victoria Randall, Deputy City Clerk
City of Atascadero
City of Atascadero
WELCOME TO THE ATA SCA DERO CITY COUNCIL MEETING
The City Council meets in regular session on the second and fourth Tuesday of each month at 6:00 p.m. unless there is a
Community Redevelopment Agency meeting commencing at 6:00 p.m. in which event the Council meeting will commence
immediately following the conclusion of the Community Redevelopment Agency meeting. Council meetings will be held at
the City Hall Council Chambers, 6907 EI Camino Real, Atascadero. Matters are considered by the Council in the order of
the printed Agenda. Regular Council meetings are televised live, audio recorded and videotaped for future playback.
Charter Communication customers may view the meetings on Charter Cable Channel 20 or via the City's website at
www.atascadero.org. Meetings are also broadcast on radio station KPRL AM 1230. Contact the City Clerk for more
information (470-3400).
Copies of the staff reports or other documentation relating to each item of business referred to on the Agenda are on file
in the office of the City Clerk and are available for public inspection during City Hall business hours at the Front Counter of
City Hall, 6907 EI Camino Real, Atascadero, and on our website, www.atascadero.org. An agenda packet is also
available for public review at the Atascadero Library, 6850 Morro Road. Contracts, Resolutions and Ordinances will be
allocated a number once they are approved by the City Council. The minutes of this meeting will reflect these numbers.
All documents submitted by the public during Council meetings that are either read into the record or referred to in their
statement will be noted in the minutes and available for review in the City Clerk's office.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City meeting
or other services offered by this City, please contact the City Manager's Office or the City Clerk's Office, both at (805)
470-3400. Notification at least 48 hours prior to the meeting or time when services are needed will assist the City staff in
assuring that reasonable arrangements can be made to provide accessibility to the meeting or service.
TO SPEAK ON SUBJECTS NOT LISTED ON THE AGENDA
Under Agenda item, "COMMUNITY FORUM", the Mayor will call for anyone from the audience having business with the
Council to approach the lectern and be recognized.
1. Give your name for the record (not required)
2. State the nature of your business.
3. All comments are limited to 3 minutes.
4. All comments should be made to the Mayor and Council.
5. No person shall be permitted to make slanderous, profane or negative personal remarks concerning any other
individual, absent or present
This is the time items not on the Agenda may be brought to the Council's attention. A maximum of 30 minutes will be
allowed for Community Forum (unless changed by the Council). If you wish to use a computer presentation to support
your comments, you must notify the City Clerk's office at least 24 hours prior to the meeting. Digital presentations must
be brought to the meeting on a USB drive or CD. You are required to submit to the City Clerk a printed copy of your
presentation for the record. Please check in with the City Clerk before the meeting begins to announce your presence
and turn in the printed copy.
TO SPEAK ON AGENDA ITEMS (from Title 2, Chapter 1 of the Atascadero Municipal Code)
Members of the audience may speak on any item on the agenda. The Mayor will identify the subject, staff will give their
report, and the Council will ask questions of staff. The Mayor will announce when the public comment period is open and
will request anyone interested to address the Council regarding the matter being considered to step up to the lectern. If
you wish to speak for, against or comment in any way:
1. You must approach the lectern and be recognized by the Mayor
2. Give your name (not required)
3. Make your statement
4. All comments should be made to the Mayor and Council
5. No person shall be permitted to make slanderous, profane or negative personal remarks concerning any other
individual, absent or present
6. All comments limited to 3 minutes
The Mayor will announce when the public comment period is closed, and thereafter, no further public comments will be
heard by the Council.
ITEM NUMBER: A- 1
DATE: 09/27/11
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\ CAD]Ro CI TY OF A TA SCA DERO
CITY COUNCIL
DRAFT ACTION MINUTES
Tuesday, September 13, 2011
City Hall
Council Chambers
6907 EI Camino Real, Atascadero, California
REGULAR SESSION — CALL TO ORDER: 6:00 P.M.
Mayor O'Malley called the meeting to order at 6:02 p.m. and led the Pledge of
Allegiance.
ROLL CALL:
Present: Council Members Clay, Fonzi, Sturtevant, Mayor Pro Tem Kelley
and Mayor O'Malley
Absent: None
Others Present: City Clerk / Assistant to City Manager Marcia McClure Torgerson
Staff Present: Assistant City Manager Jim Lewis, Administrative Services Director
Rachelle Rickard, Community Development Director Warren Frace,
Public Works Director Russ Thompson, Community Services
Director Brady Cherry, Acting Police Chief Steve Gesell, Fire Chief
Kurt Stone, and City Attorney Brian Pierik.
APPROVAL OF AGENDA: Roll Call
Mayor Pro Tem Kelley stated that he would like to remove the issue regarding the
Ferrocarrill gate from the agenda. He explained that he has received numerous calls
from residents in the area explaining why they want the gate to remain.
Draft CC Minutes
September 13, 2011
Page 1 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
MOTION: By Council Member Fonzi and seconded by Council Member
Sturtevant to approve the modified agenda.
Motion passed 5:0 by a roll-call vote.
PRESENTATIONS:
1. Employee Service Awards
Assistant City Manager Jim Lewis recognized each of the employees receiving a
recognition award:
Five Years
Gregg Meyer, Police Department Sergeant
Caleb Davis, Police Department Officer
Chris Horejsi, Public Works Department
Thomas Little, Fire Department Fire Engineer
Victoria Randall, City Manager's Office
Ten Years
Keith Aggson, Fire Department Captain
Jennifer Fanning, Community Services Recreation Supervisor
Twenty-five Years
Ann Jutras, Police Department Support Services Supervisor
2. Update on Disaster Response Trailer— PG&E Challenge Grant
Mayor O'Malley announced that Council Member Sturtevant will say a few words
about this Grant. PG&E representative Tom Jones and Matt Miranda from the
Fire Department also spoke about this Grant.
3. Presentation by Michael E. Manchak, President and CEO of the
Economic Vitality Corporation
Mr. Manchek gave a summary of the services provided by the Economic Vitality
Corporation.
County Supervisor Jim Patterson stated that the Board of Supervisors supports
the Economic Vitality Corporation's services.
Draft CC Minutes
September 13, 2011
Page 2 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
A. CONSENT CALENDAR:
1. City Council Draft Action Minutes — July 12, 2011
■ Recommendation: Council approve the City Council Draft Action
Minutes of July 12, 2011. [City Clerk]
2. City Council Draft Action Minutes — August 9, 2011
■ Recommendation: Council approve the City Council Draft Action
Minutes of August 9, 2011. [City Clerk]
3. City Council Special Meeting Draft Action Minutes — August 11, 2011
■ Recommendation: Council approve the City Council Special Meeting
Draft Action Minutes of August 11, 2011. [City Clerk]
4. City Council Special Meeting Draft Action Minutes — August 25, 2011
■ Recommendation: Council approve the City Council Special Meeting
Draft Action Minutes of August 25, 2011. [City Clerk]
5. June 2011 Investment Report
■ Fiscal Impact: None.
■ Recommendation: Council receive and file the City Treasurer's report
for quarter ending June 2011. [Administrative Services]
6. July 2011 Accounts Payable and Payroll
■ Fiscal Impact: $3,197,021 .83.
■ Recommendation: Council approve certified City accounts payable,
payroll and payroll vendor checks for July 2011 . [Administrative
Services]
7. Second Reading for Draft Regular Ordinance Pertaining to Compliance
with ABX1 27 Voluntary Alternative Redevelopment Program
■ Fiscal Impact: The estimated payments required of the City to
participate in the Alternative Voluntary Redevelopment Program are
$1,516,774.00 in FY 2011-12 and $400,000 per year in succeeding fiscal
years.
■ Recommendation: Council adopt on second reading, by title only, the
Draft Ordinance, determining to comply with the Alternative Voluntary
Redevelopment Program pursuant to Part 1.9 of Division 24 of the
California Health and Safety Code in order to permit the continued
existence and operation of the Atascadero Community Redevelopment
Agency. [City Attorney]
Citizen Mike Brennler pulled Item #A-6.
Draft CC Minutes
September 13, 2011
Page 3 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Fonzi to approve Items #A-1, 2, 3, 4, 5, & 7 of the Consent
Calendar.
Motion passed 5:0 by a roll-call vote. (Item #A-7: Ordinance
No. 557)
Item #A-6: Mr. Brennler asked for clarification on an entry in the report. Administrative
Services Director Rickard explained the entry.
MOTION: By Council Member Fonzi and seconded by Council Member
Sturtevant to approve Item #A-6 of the Consent Calendar.
Motion passed 5:0 by a roll-call vote.
UPDATES FROM THE CITY MANAGER:
City Manager Wade McKinney gave an update on projects and issues within the City.
COMMUNITY FORUM:
The following citizens spoke during Community Forum: David Broadwater (Exhibit A),
Barbara Landis, Felicia Hammond (Exhibit B), Bruce Boniface (Exhibit C), Rick Cook,
Susan Warren (Exhibit D), Mike Anderson, Lee Perkins, Mitch Paskin, Judy Gray, Mike
Brennler, Tom Comar, Richard Molroy, Jim Patterson, and Karyn Sturtevant.
Mayor O'Malley closed the COMMUNITY FORUM period.
B. PUBLIC HEARINGS: None.
C. MANAGEMENT REPORTS:
1. Confirming the Cost of Vegetative Growth and/or Refuse Abatement
■ Fiscal Impact: The City will receive $164,549.81 from the 2011/2012
property tax rolls in weed abatement / refuse abatement assessments.
■ Recommendation: Council adopt the Draft Resolution, confirming the
cost of vegetative growth (weeds) and/or refuse (rubbish) abatement.
[Fire]
Fire Chief Kurt Stone gave the staff report and answered questions from the Council.
PUBLIC COMMENT:
The following citizen spoke on this item: Mike Brennler.
Draft CC Minutes
September 13, 2011
Page 4 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
Mayor O'Malley closed the Public Comment period.
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Sturtevant to adopt the Draft Resolution, confirming the cost
of vegetative growth (weeds) and/or refuse (rubbish)
abatement.
Motion passed 5:0 by a roll-call vote. (Resolution No. 2011-
064)
2. Consideration of Continuation of Priority Redevelopment Agency
Projects by the City
■ Fiscal Impact: Fiscal impact and risk depends on the amount of funding
being spent during this interim time. Amounts range from $0 to
$716,800.
■ Recommendation: Council direct staff on whether or not to continue
certain priority redevelopment projects and activities on behalf of the
Redevelopment Agency during the period the Supreme Court of
California is reviewing legal challenges to ABX1 26 and 27. [City
Manager]
Assistant City Manager Jim Lewis gave the staff report and answered questions from
the Council.
The Council considered the following high priority redevelopment projects:
1. Olsen property purchase
2. Downtown pedestrian bridge
3. Centennial Plaza improvements
PUBLIC COMMENT:
The following citizens spoke on this item: Jim Wilkins, Al Fonzi, Frank Rimkus, Mike
Brennler, and Jack Doris.
Mayor O'Malley closed the Public Comment period.
MOTION: By Council Member Fonzi and seconded by Council Member
Clay to direct staff to continue the following redevelopment
projects and activities on behalf of the Redevelopment Agency
during the period the Supreme Court of California is reviewing
legal challenges to ABX1 26 and 27:
1. Olsen property purchase
2. Downtown pedestrian bridge
3. Centennial Plaza improvements
Motion passed 5:0 by a roll-call vote.
Draft CC Minutes
September 13, 2011
Page 5 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
The Council considered the following high priority redevelopment projects:
1. Office of Economic Development Activities
2. Economic Development Support from Staff
3. Enhanced Cleanup and Maintenance of Downtown
4. Graffiti Removal in the Redevelopment Area
PUBLIC COMMENT:
The following citizen spoke on this item: Mike Brennler
Mayor O'Malley closed the Public Comment period.
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Clay to direct staff to continue the following redevelopment
projects and activities on behalf of the Redevelopment Agency
during the period the Supreme Court of California is reviewing
legal challenges to ABX1 26 and 27:
1. Office of Economic Development Activities
2. Economic Development Support from Staff
3. Enhanced Cleanup and Maintenance of Downtown
4. Graffiti Removal in the Redevelopment Area
Motion passed 5:0 by a roll-call vote.
The Council considered the following high priority redevelopment projects:
1. Low/Moderate Income Housing Program
PUBLIC COMMENT: None.
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Sturtevant to direct staff to continue the following
redevelopment project on behalf of the Redevelopment
Agency during the period the Supreme Court of California is
reviewing legal challenges to ABX1 26 and 27.:
1. Low/Moderate Income Housing Program
Motion passed 5:0 by a roll-call vote.
The Council considered the following redevelopment projects:
1. Restaurant Stimulus Program
2. Permit Fee Waiver Program
3. Fagade Improvement Program/Signage
PUBLIC COMMENT:
The following citizens spoke on this item: Jack Doris, Frank Rimkus, Al Fonzi, and
Steve Martin.
Draft CC Minutes
September 13, 2011
Page 6 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
Mayor O'Malley closed the Public Comment period.
MOTION: By Council Member Fonzi and seconded by Council Member
Sturtevant to direct staff to continue the Restaurant Stimulus
Program redevelopment project on behalf of the
Redevelopment Agency during the period the Supreme Court
of California is reviewing legal challenges to ABX1 26 and 27.
Motion passed 5:0 by a roll-call vote.
MOTION: By Council Member Sturtevant and seconded by Council
Member Clay to direct staff to continue the Permit Fee Waiver
Program redevelopment project on behalf of the
Redevelopment Agency during the period the Supreme Court
of California is reviewing legal challenges to ABX1 26 and 27.
Motion passed 5:0 by a roll-call vote.
MOTION: By Council Member Sturtevant and seconded by Mayor Pro
Tem Kelley to direct staff to continue the Fagade Improvement
Program/Signage redevelopment project on behalf of the
Redevelopment Agency during the period the Supreme Court
of California is reviewing legal challenges to ABX1 26 and 27.
Motion passed 5:0 by a roll-call vote.
The Council considered the following redevelopment projects:
1. Marketing and Promotion of Community
2. Savor the Central Coast
3. Road Closure Fees
4. Park Rental Fees
PUBLIC COMMENT: None
MOTION: By Mayor O'Malley and seconded by Council Member Fonzi to
direct staff to continue the following redevelopment projects
and activities on behalf of the Redevelopment Agency during
the period the Supreme Court of California is reviewing legal
challenges to ABX1 26 and 27:
1. Marketing and Promotion of Community
2. Savor the Central Coast
3. Road Closure Fees
4. Park Rental Fees
Motion passed 5:0 by a roll-call vote.
The Council considered the following redevelopment projects:
1. Sunken Gardens Fountain
2. Sunken Gardens Holiday Enhancements
Draft CC Minutes
September 13, 2011
Page 7 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
PUBLIC COMMENT: None
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Fonzi to direct staff to continue the following redevelopment
projects and activities on behalf of the Redevelopment Agency
during the period the Supreme Court of California is reviewing
legal challenges to ABX1 26 and 27:
1. Sunken Gardens Fountain
2. Sunken Gardens Holiday Enhancements
Motion passed 5:0 by a roll-call vote.
3. Downtown Pedestrian Bridge and Centennial Plaza Design Award
■ Fiscal Impact: Approval of this agreement will result in the expenditure
of $95,983.00 previously budgeted Blight Elimination Funds for these
capital improvement projects. Staff will be bringing forward a conceptual
project design and budget at a future meeting.
■ Recommendation: Council authorize the City Manager to execute an
agreement with North Coast Engineering, Inc. in the amount of
$95,983.00 for engineering design to prepare working drawings, plans
and specifications for the Downtown Pedestrian Bridge and Centennial
Plaza projects. [Public Works]
Public Works Director Russ Thompson gave the staff report and answered questions
from the Council.
PUBLIC COMMENT:
The following citizens spoke on this item: Jim Wilkins, Tom Lewis, and Mike Brennler.
Mayor O'Malley closed the Public Comment period.
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Clay to authorize the City Manager to execute an agreement
with North Coast Engineering, Inc. in the amount of $95,983.00
for engineering design to prepare working drawings, plans and
specifications for the Downtown Pedestrian Bridge and
Centennial Plaza projects.
Motion passed 5:0 by a roll-call vote. (Contract No. 2011-035)
Mayor O'Malley recessed the meeting at 9.25 p.m.
Mayor O'Malley reconvened the meeting at 9:42 p.m.
Draft CC Minutes
September 13, 2011
Page 8 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
4. Angled Parking on EI Camino Real
■ Fiscal Impact: The construction cost for restriping EI Camino Real will
range from $30,000 to $40,000.
■ Recommendations: Council:
1. Direct Staff to install angled parking on EI Camino Real between Morro
Road and Traffic Way at the completion of Streetscape 3; and,
2. Provide Staff with any direction on modification of the extent of
proposed improvements. [Public Works]
Public Works Director Russ Thompson gave the staff report and answered questions
from the Council.
PUBLIC COMMENT:
The following citizen spoke on this item: David Broadwater
Mayor O'Malley closed the Public Comment period.
There was Council consensus to place this issue on hold at this time.
5. Reject Lake Park Sign and Frontage Improvement Project Bids (City
Bid No. 2011-012)
■ Fiscal Impact: The fiscal impact of rejecting the bids is minimal as all
plans, specifications and contracts have been developed. Minor staff
time and minimal advertisement costs will be the only proposed
expenses to re-bid the project.
■ Recommendations: Council:
1. Reject all bids for the Lake Park Sign and Frontage project; and,
2. Authorize the Public Works Director to re-bid the project. [Public
Works]
Public Works Director Russ Thompson gave the staff report and answered questions
from the Council.
PUBLIC COMMENT: None
MOTION: By Council Member Sturtevant and seconded by Council
Member Fonzi to:
1. Reject all bids for the Lake Park Sign and Frontage project;
and,
2. Authorize the Public Works Director to re-bid the project.
Motion passed 5:0 by a roll-call vote.
Draft CC Minutes
September 13, 2011
Page 9 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
6. Employee - Employer Relations Resolution
■ Fiscal Impact: None.
• Recommendation: Council adopt the Draft Resolution adopting a
framework for employee-employer relations. [City Manager]
Assistant City Manager Jim Lewis gave the staff report and answered questions from
the Council.
PUBLIC COMMENT:
The following citizens spoke on this item: David Broadwater, Judy Gray, and Mike
Brennler.
Mayor O'Malley closed the Public Comment period.
MOTION: By Mayor Pro Tem Kelley and seconded by Council Member
Sturtevant to adopt the Draft Resolution adopting a framework
for employee-employer relations.
Motion passed 5:0 by a roll-call vote. (Resolution No. 2011-
065)
COUNCIL ANNOUNCEMENTS AND REPORTS:
1. Mayor Tom O'Malley
IWMA — Proposed Ban of Plastic and Paper Bags
Mayor O'Malley announced at the August 9, 2011 City Council meeting
that the San Luis Obispo County Integrated Waste Management
Authority (IWMA) Board is considering a ban on all plastic and paper
bags. Mayor O'Malley asked that this issue be placed on this agenda so
that the Council and community could provide him with input on the
issue.
Mayor O'Malley explained that he is seeking input from the Council and the audience to
take with him to the IWMA Board meeting tomorrow.
MOTION: By Council Member Fonzi and seconded by Council Member
Sturtevant to continue the meeting past 11:00 p.m.
Motion passed 3:2 by a roll-call vote. (Clay & Kelley opposed)
PUBLIC COMMENT:
The following citizens spoke on this item: Judy Gray, Chuck Ward, Megan Farrell
(Exhibit E), Gordon Hensley, David Broadwater, Mike Brennler, and Jim Patterson
(Exhibit F).
Draft CC Minutes
September 13, 2011
Page 10 of 11
ITEM NUMBER: A- 1
DATE: 09/27/11
Mayor O'Malley closed the Public Comment period.
The City Council Members expressed their opinions on this issue.
2. Mayor Pro Tem Bob Kelley
Ferrocarrill Gate — Possible Public Safety Barrier
Mayor Pro Tem Kelley reported at the August 9, 2011 City Council
meeting that he is concerned about the gate on Ferrocarrill Road that
separates the neighborhood into two areas. He expressed concern with
the possible delay in emergency response times because of this gate
and wants the City Council to discuss the issue.
This item was removed by Council.
D. COMMITTEE REPORTS: None
E. INDIVIDUAL DETERMINATION AND / OR ACTION: None
F. ADJOURNMENT:
Mayor O'Malley adjourned the meeting at 11:31 p.m.
MINUTES PREPARED BY:
Marcia McClure Torgerson, C.M.C.
City Clerk / Assistant to the City Manager
The following exhibit is available for review in the City Clerk's office:
Exhibit A— Letter from David Broadwater, dated 9/13/11
Exhibit B— CERT flyer, submitted by Felicia Hammond
Exhibit C— Invitation to ALPS land dedication on 9/23/11, submitted by Bruce Boniface
Exhibit D — North County Connection invitation, submitted by Susan Warren
Exhibit E— Bag Math, submitted by Megan Farrell
Exhibit F—3 informational items supporting the banning of bags, submitted by Jim Patterson
Draft CC Minutes
September 13, 2011
Page 11 of 11
ITEM NUMBER: A- 2
DATE: 09/27/11
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Atascadero City Council
Staff Report — Administrative Services
Historic City Hall Project Bid Awards:
ACH-20 Electrical Add Alternate
RECOMMENDATIONS:
Council:
1. Award Add Alternate 14 (Enhanced Lighting Plan) for the Historic City Hall
Project in the amount of $128,000 to Taft Electric; and,
2. Authorize the City Manager to execute an amendment to the contract with Taft
Electric.
DISCUSSION:
Staff is bringing back ACH-20 Add Alternate 14 (Enhanced Lighting Plan), to be
awarded for the Historic City Hall Project. On June 28, 2011, Council awarded the
ACH-20 base bid. The ACH-20 bid package consisted of installation of a completely
new code-compliant electrical system, including an upgrade to the electrical main power
source, power distribution, telephone and data distribution, elevator power, fire alarm
systems, replacement of the building's main switchboard, and new wiring to all systems.
The Enhanced Lighting Plan, on the other hand, adds the installation of all new lighting
fixtures in the Historic City Hall that would bear a likeness to the original historic lighting.
As discussed at the June 28, 2011 Council meeting, the pricing for this add alternate
was higher than had originally been anticipated. Since then, staff has been working with
the contractor in an attempt to find more affordable options to the type of lighting
included in Add Alternate 14. It was thought that the least costly alternative would be to
replace the light fixtures with the least expensive, energy-efficient lighting. However,
after examining this option, staff realized that this would result in a savings of only about
$13,000. The Enhanced Lighting Plan includes new lighting that will provide more of a
historic feel than other lighting alternatives; these `historic-feeling' fixtures will also be
energy-efficient. Therefore, staff believes that the award of this add alternate will be the
best option for the project.
Meanwhile, the contractor has done some value engineering on the contracted base
scope of work. This has resulted in negative change orders totaling $53,167, which will
ITEM NUMBER: A- 2
DATE: 09/27/11
partially make up for the cost of the add alternate. In addition, further cost reductions
are being discussed, including the installation of old light fixtures in the basement. This
would utilize some of the better existing light fixtures, rather than purchasing new
lighting for the basement. Staff considers this to be the best alternative.
This work will fall under the "Other" category, and will be paid for with Redevelopment
Agency funds.
FISCAL IMPACT:
The total fiscal impact of this award is $128,000 in budgeted City Hall Project Funds,
including funding from the Community Redevelopment Agency of Atascadero.
The current projected uses and sources of funds for the Project are shown on the
following page.
ITEM NUMBER: A- 2
DATE: 09/27/11
PROJECTED FUNDING USES
Architecture and engineering $ 5,115,050
Construction costs:
ACH-2 Penthouse Demolition and Hazardous
Materials Abatement (awarded 2/22/11) 141,300
ACH-3 Basement Wall and Floor Demolition
(awarded 10/26/10) 178,000
ACH-4 Basement Electrical Demolition and
Temporary Power Installation (awarded 10/26/10) 73,980
ACH-5 Foundation Structural Stabilization
(awarded 2/22/11) 3,703,000
ACH-8 Historic Repair& Rehabilitation 10,564,669
ACH-11 Structural Steel and Miscellaneous
Metals 494,300
ACH-12 Rough Carpentry 277,920
ACH-16 Elevator 276,320
ACH-17 Fire Protection 259,841
ACH-18 Plumbing 403,000
ACH-19 Heating, Ventilation and Air
Conditioning 849,777
ACH-20 Electrical 762,457
Add Alternate 14 128,000
Remaining bid packages 448,372
Total construction costs 18,560,936
Construction management (Phase 1 awarded 4/27/10,and
Phase Il awarded 1/11/11) 3,642,003
General conditions, construction support, and
permitting
Pre-Construction activity 58,165
Deputy Inspection Services (awarded 1/11/11) 386,991
Hazardous Materials Investigation, Design and
Monitoring(Phase 1 awarded 3/23/10 and Phase II
awarded 1/11/11) 159,847
Other 914,417
Total testing, inpection, permitting and
construction support 1,519,420
Contingency 5,032,300
TOTAL PROJECTED FUNDING USES $3398695709
PROJECTED FUNDING SOURCES
Expected FEMA funding $20,059,190
Expected CalEMA funding 6,686,400
California Cultural Historic Endowment Grant 2,000,000
Redevelopment 2010 Bond Funds 13,000,000
TOTAL PROJECTED FUNDING SOURCES $41,745,590
FUNDING SURPLUS $ 7,875,881
ITEM NUMBER: A-2
DATE: 09/27/11
ITEM NUMBER: C - 1
DATE: 09/27/11
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Atascadero City Council
Staff Report - City Attorney's Office
Response to Grand Jury Report
RECOMMENDATION:
Council approve the Response to Grand Jury Report
DISCUSSION:
On January 7, 2011, The City and former Police Chief James Mulhall entered into a
Settlement Agreement. Pursuant to Section 4 (g) of the Settlement Agreement, as
required by law, the effective date of the Settlement Agreement was January 14, 2011.
On January 19, 2011, the City provided a copy of the Settlement Agreement to a party
who submitted a public records request and the City also issued a press release to
multiple members of the press with a copy of the Settlement Agreement, copy attached
to this Staff Report as Attachment 1.
On June 16, 2011, the Grand Jury transmitted a Report to the City of Atascadero, copy
attached to this Staff Report as Attachment 2.
On September 14, 2011, the City submitted a Response to Grand Jury Report, copy
attached to this Staff Report as Attachment 3.
FISCAL IMPACT:
Approval of the Response to the Grand Jury Report has no fiscal impact to the City.
ITEM NUMBER: C - 1
DATE: 09/27/11
ALTERNATIVE:
The Mayor may make separate comments in response to the Grand Jury Report and
the Council may modify the Response to the Grand Jury Report in such manner as the
Council may determine appropriate.
ATTACHMENT:
1. Press Release and Settlement Agreement
2. Grand Jury Report
3. Response to Grand Jury Report
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 1
January 19, 2011
Press Release
City of Atascadero `
6907 El Camino Real
Atascadero.CA 93422 `
8051470-3400
For Immediate release... ............................ ......Faxed January 19.2011
Contact: Brian Pwik,City Attorney 470-3400
James F. Mulhall resigned his position as Police Chief from the City of Atascadero. Attached is the
Settlement Agreement.
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 1
SE'T'TLEMENT AGREEMENT AND GENERAL.RELEASE
1. PARTIES
The parties to this Settlement Agreement and General Release(the"AGREEMENT*) are
James F. Mulhall ("MULHALL") and the City of Atascadero, a public entity (the "CITY")
(collectively,the"PARTIES").
2. RECITALS
2.1. MULHALL has been employed by the CITY since January 22, 2007.
MULHALL was originally appointed to the position of Police Lieutenant, and was promoted to
the position of Police Chief,an at-will position,on December 29,2007,and MULHALL currently
holds the position of Police Chief(-EMPLOYMENT").
2.2. MULHALL and the CITY entered into an employment agreement dated
December 29, 2007, which sets forth the terms and conditions of MULHALL'S employment,
including the fact that MUI,IIALL serves at the will of the City Manager ("EMPLOYMENT
AGRF.EMFNT').
2.3. Pursuant to Section 3.A.of the EMPLOYMENT AGREEMENT,the PARTIES
wish to mutually terminate MULI IALL'S EMPLOYME•N'r("TERMINATION').
2.4. The PARTIES wish to amicably resolve MULHALL'S EMPLOYMENT. Both
MULFIALL and the CITY desire to resolve issues of any kind between them, including, but not
limited to, all issues of every kind or nature arising out of or related to his EMPLOYMENT and
the EMPLOYMENT AGREEMENT. Neither MULHALL nor the CITY admits any wrongdoing,
and this AGREEMENT is in no way an admission of liability by any party or that any allegations
made by any party against another party have merit.
3. CONSIDERATION
3.1. In exchange for the promises and releases set forth herein, the CITY shall
provide MULHALL the gross sum of one hundred and twentysix thousand DOLLARS($126,000.00)
(the'-,ETCLEMENT PAYMENT"'). The SETTLEMENT PAYMENT shall be issued to MULIIALL
within five(5)business days of the EFFECTIVE DATT•.of this AGREEEMI NT on a check made
payable to"lames F. Mulhall." The PARTIES agree that the SETTLEMENT PAYMENT shall be
subject to all state and federal withholding requirements.
3.2. In further exchange for the releases and promises set forth herein, the CITY
agrees not to pursue a termination for cause under Section 3.13 of the EMPLOYMENT
AGREEMENT, and MULHALL agrees to waivc any and all rights he may have to notice and
appeal under Section 3.D of the EMPLOYMENT AGREEMENT or under any other law or basis_
3.3. The CI'T'Y agrees to provide MULHALL with a positive reference for future
employment,upon the request of MULHALL(the"REFERENCE").
LA 94M.8214.2722 v l
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Attachment 1
3.4. In exchange for the SETTLEMENT PAYML'NT, MULHALL agrees that his
signature on this AGREEMENT shall be deemed a voluntary resignation from his employment as a
Police Chief effective January 7,2011 ("RESIGNATION').
3.5. In addition,MULHALL hereby,and for his heirs, representatives,successors,and
assigns, releases. acquits, and forever discharges the CITY, its past and present employees, agents,
officers,representatives, insurers,and attorneys,and its predecessors,successors,and assigns,and all
persons acting by,through,under,or in concert with any of them,and each of them,from any and all
claims, charges, complaint.-,, liabilities, obligations, promises, benefits, agreements, controversies,
costs, losses, debts,expenses, damages, actions, causes of action, suits, rights, and demands of any
nature whatsoever,known or unknown,suspected or unsuspected('MULHALL'S CLAIMS'),which
MULHALL now has or may acquire in the future, which relate to or arise out of his
EMPLOYMENT, the EMPLOYMENT AGRFEMF;NT, the TERMINATION, the
RESIGNATION, the SETTLEMENT PAYMENT, the REFERENCE, the LEAVE PAYMENT, or
any act,omission, occurrence,condition,event, transaction,or thing which was done,omitted to be
done, occurred or was in effect at anytime from the beginning of time up to and including the
EFFECTIVE DATE,without regard to whether MUTLHALL'S CLAIMS arise under federal,state,or
local constitutions,statutes,rules,regulations,or common law, MULIIALL expressly acknowledges
that MULHALL'S CLAIMS forever barred by this AGREEMENT specifically include, but are not
limited to, claims based upon any alleged breach of CITY resolution, ordinance, or other policy,
claims based upon any alleged breach of EMPLOYMENT AGREEMENT, any demand for wages,
overtime, or benefits, any alleged breach of any duty arising out of contract or tort, any alleged
wrongful termination in violation of public policy, any alleged breach of any express or implied
contract for continued employment, any alleged harassment, any alleged retaliation, any alleged
employment discrimination or unlawful discriminatory act,or any claim or cause of action including,
but not limited to,any and all claims whether arising under any federal,state or local law prohibiting
breach of EMPLOYMENT AGREEMENT, wrongful termination, or employment discrimination
based upon age, race, color, sex, gender, sexual orientation, religion, creed, physical or mental
disability, medical oondition, national origin, veteran status, or any other protected category or
characteristic, and any and all rights or claims arising under the Labor Code, the Peace Officers
Procedural Bill of Rights,the Federal Fair Labor Standards Act.the California Fair Employment and
Housing Act,the Americans With Disabilities Act,Title VII of the Civil Rights Act of 1964,and any
other federal,state,or local civil rights,employment discrimination,or employee rights statute,rule,or
regulation.
3.6. Paid leave Benefits. As required by law and the EMPLOYMENT
AGREEMENT, the CITY will, within five (5) business days of the EFFF(:1'IVE DATE of this
AGREEMF,NT,shall cash out all unused paid administrative and vacation leave that has accrued from
MULHALL'S start of employment through January 7, 2011 ("LEAVE PAYMENT'). This payment
shall be subject to all federal and state withholdings and taxes. The PARTIES agree that there shall be
no cash out of any unused sick leave under Resolution No. 2009-048 because MULHALL does not
meet the minimum qualifications for that benefit.
4. SPECIFIC ACKNOWLEDGEMENT OF WAIVER OF CLAIMS UNDER THE
ADEA AND OWBPA
The Age Discrimination in Employment Act of 1967 ("ADEA") makes it illegal for an
employer to discharge any individual or otherwise discriminate with respect to the nature and
page 2 of 7
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ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 1
privileges of an individual's employment on the basis that the individual is age forty or older. The
Older Workers Benefit Protection Act("OWBPA",29 U.S.C.§§626,et.seg.,Pub L 101-433. 104
Stat.978(1990))further augments the ADEA and prohibits the waiver of any right or claim under
the ADEA unless the waiver is knowing and voluntary. By entering into this AGREEMENT,
MULHALL acknowledges that he is knowingly and voluntarily,for just compensation in addition
to anything of value to which MULHALL was already entitled,waiving and releasing any rights
he may have under the ADEA and/or OWBPA. MULHALL, further acknowledges that he has
boen advised and understands,pursuant to the provisions of the ADEA and OWBPA,that:
(a) this waiver/release is written in a manner understood by MULHALL;
(b) MULHALL,is aware of and has been advised of his rights under the ADEA
and OWBPA,and of the legal significance of his waiver of any possible claims he currently may
have under the ADEA,OWBPA,or similar age discrimination laws;
(c) MULHALL is entitled to a reasonable time of at least twenty-one(21)days
within which to review and consider this AGREEMENT,and the waiver and release of any rights
he may have under the ADEA,the OWBPA,or similar age discrimination laws,but he may,in the
exercise of his own discretion, sign or reject this AGREEMENT at any time before the expiration
of the twenty-one(2 1)days;
(d) the waivers and releases set forth in this AGREEMENT shall not apply to
any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE
of this AGREEMENT,
(e) MULHALL has been advised by this writing that he should consult with an
attorney prior to executing this AGRFEMEN'f;
(f) MULHALL is aware of his right to discuss this waiver and release with
legal counsel of choice and he does not need any additional time within which to review and
consider this AGREEMENT or engage in further discussions with said legal counsel;
(g) MULHALL has seven days following the parties' full and complete
execution of this AGREEMENT to revoke the AGREEMENT (the date of expiration of this
seven-day period shall be referred to as the "EFFEC:TIVE DATE"). The revocation must be in
writing and received by the CITY'S counsel,Kelly A.Trainer,Esq.,Burke,Williams&Sorensen,
LLP,2875 Michelle Drive,Suite 350,Irvine,California,92606,within the revocation period;and
(h) this AGREEMENT shall not be effective until the EFFECTIVE DATE.
S. UNKNOWN CLAIMS
MULHALL represents that it is his intention in executing this document that this
AGREEMENT shall be effective as a bar to each and every claim,demand, suit, action,cause of
action, debt, attorneys' fees and costs, and the claims hereinabove specified, whether known or
unknown, suspected or unsuspected; and in furtherance of this intention MULHALL, HEREBY
EXPRESSLY WAIVES ALL RIGHTS AND BENEFITS CONFERRED UPON HIM BY THE
price 3 of 7
LA 0484L%.8214.2728+I
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DATE: 09/27/11
Attachment 1
PROVISIONS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH
MULHALL UNDERSTANDS PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
TRE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TI.ME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Notwithstanding Section 1542 of the Civil Code of California,MULHALL expressly consents that
this AGREEMENT shall be given full force and effect according to each and all of its express
terms and provisions, including as well those relating to unknown and unspecified claims,
demands, suits,actions,causes of action and debts, if any,and those relating to any other claims,
demands.suits,actions,causes of action and debts hereinabove specified. This release and waiver
includes, among others, claims based on age discrimination arising under the federal Age
Discrimination in Employment Act and applicable state law,and attorneys' fees and costs.
6. WAIVER OF ADDITIONAL CLAIMS
MULHALL hereby waives any provisions of state or federal law that might require a more detailed
specification of the claims being released pursuant to the provisions of Paragraphs 3.4.and 5,above.
7. RFI'RFSFN'I'ATIONS AND WARRANTIES
Each of Ilse parties to this AGREEMENT represents and warrants to, and agrees with, each
other party as follows:
7.1. Advice of C2Z=l: Each party is aware of his or its right to roceive or has
received independent legal advice from its attorney(s) with respect to the advisability of making the
settlement provided for herein,with respect to the advisability of executing this AGREEMENT,and
with respect to the meaning of California Civil Code Section 1542.
7.2. No Fraud in Inducement: No party(nor any officer,agent,employee,representative,
or attorney of or for any party)has made any statement or representation or failed to make any statement
or rcprescntation to any other party regarding any fact relied upon in entering into this AGREEMENT,
and neither party relics upon any statement,representation,omission,or promise of any other party(or of
any officer, agent, employee, representative, or attorney of or for any party) in executing this
AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this
AGREEMENT. Each term of this AGREEMENT is contractual and not merely a recital.
7.3. Independent tnvestiaation: Each party to this AGREEMENT has made such
investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters
pertaining thereto,as it deems necessary.
7.4. Cumnmhensiona and Avthority: Each party or responsible officer thereof has read
this AGREEMENT and understands the contents hereof. Any of the employees executing this
AGREEMENT on behalf of the CITY arc empowered to do so and hereby bind the CITY.
page 4 of 7
LA 04940-8214-2728 v
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 1
7.5. Mistake Waived: In entering into this AGREEMENT and the settlement provided
for herein,each party assumes the risk of any misrepresentation,concealment,or mistake. If any party
should subsequently disoover that any fact relied upon by it in entering into this AGREEMENT was
untrue,or that any fact was concealed from it,or that its understanding of the facts or of the law was
incorrect, such party shall not be entitled to any relief in connection therewith, including without
limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this
AGREEMENT. This AGREEMENT is intended to be and is final and binding between the parties,
regardless of any claims of misrepresentation, promise made without the intent to perform,
concealment of fact,mistake of fact or law,or any other circumstance whatsoever.
7.6, La er Discovery: Each parry is aware that it may hereaRer discover claims or
facts in addition to or different from those it now knows or believes to be true with respect to the
matters related herein. Nevertheless, it is the intention of the parties to fully, finally, and forever
settle and release all such matters,and all claims relative thereto, which do now exist, may exist,or
have previously existed between MULHALL and the CITY. In furtherance of such intention, the
releases given by MULHALL here shall be and remain in effect as full and complete releases of all
such matters,notwithstanding the discovery or existence of any additional or different claims or facts
relative thereto.
7.7. Ownership of Claims: M. ULHALL represents and warrants as a material term of
this AGREEMENT that he has not heretofore assigned,transferred.released,or granted,or purported
to assign, transfer, release, or grant, any of the CLAIMS disposed of by this AGREEMENT. In
executing this AGREEMENT,MULHALL further warrants and represents that none of the CLAIMS
released by them hereunder will in the future be assigned,conveyed,or transferred in any fashion to
any other person and/or entity.
7.8. Indemnification: The parties agree to indemnify and hold harmless each other,
and their respective employees and agents, from, and against, any and all claims, damages, or
liabilities sustained by them as a direct result of the violation or breach of the covenants,warranties,
and representations undertaken pursuant to the provisions of this AGREEMENT.
7.9. Future Cooneratig. : The parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary, or desirable to carry out the provisions of
this AGREEMENT.
8. MISCELLANEOUS
8.1. No Admission. Nothing contained herein shall be construed as an admission by
the parties of any liability of any kind. Each of the panics hereto denies any liability in connection
with any claim and intends hereby solely to avoid litigation and buy its peace.
8.2. Goveminft Law: This AGREEMENT has been executed and delivered within the
State of California, and the rights and obligations of the parties shall be construed and enforced in
accordance with,and govcmed by,the laws of the Statc of California.
8.3. Full Integra'on: This AGREEMENT is the entire agreement between the panics
with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and
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LA*4$40-9214-2721 v1
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Attachment 1
written agreements and discussions. This AGREEMENT may be amended only by a further
agreement in writing,signed by the parties.
8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the
benefit of the parties,their respective agents,employees,representatives,officers,attorneys,insurers.
assigns,heirs,and successors in interest.
8.5. Joint Drafting: tach party has cooperated in the drafting and preparation of this
AGREEMENT and no party shall be deemed to have been the drafter of this AGREEMENT.
Hence,this AGREEMENT shall be construed within its fair meaning,and not against any party.
8.6. Severability: In the event that any term, covenant, condition, provision, or
agrccmcnt contained in this AGREEMENT is held to be invalid or void by any court of competent
jurisdiction,the invalidity of any such term,covenant,condition,provision,or agreement shall in no
way affect any other term, covenant,condition, provision, or agreement and the remainder of this
AGREEMENT shall still be in full force and effect.
8.7. ides: The titles included in this AGREEMhNT are for reference only and are
not part of the terms of this AGREEMENT. nor do they in any way modify the terms of this
AGRFEMFN'l'.
8.8. Counterparts: This AGREEMENT may be executed in counterparts,and when
each party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with other signed counterparts, shall constitute one
AGREEMENT, which shall be binding upon and ellective as to all parties as of the EFFECTIVE
DATE.
8.9. Non-Disva gmatent: MULHALL and the CITY agree that each shall not
disparage the other party, or any of the other party's employees,agents,officers, or attorneys,to
any other person or entity,verbally,in writing,or through any other form of communication. The
CITY agrees that this provision shall be binding upon its officers, managing agents, and
supervisors. MULHALL understands and agrees that this agreement not to disparage the CITY
may affect what he may state in future employment applications and interviews, in addition to
other contexts where he may be called upon to discuss the CITY and his relationship thereto.
MULHALL and the CITY agree, however,that this non-disparagement provision shall not apply
with regard to truthful testimony that is given in compliance with a subpoena,court order,or other
compulsory legal process. In the event that MULHALL or the CITY is subpoenaed or ordered by
the court or believes that the party may he compelled by legal process to give testimony that will
disparage the other party, such party shall immediately notify the other party in writing in
accordance with paragraph 8.10 so as to give the party the opportunity to object before the
appropriate court. MULHALL and the CITY acknowledge and agree that this non-disparagement
provision is a material element of the CITY'S,and MULI IALL'S agreement hereto.
8.10. Notice: Any and all notices given to any party under this AGREEMENT shall
be given as provided in this paragraph. All notices given to either party shall be made by certified
or registered United States mail, or personal delivery, at the noticing party's discretion, and
addressed to the parties as set forth below. Notices shall be deemed,for all purposes,to have been
page 6 of 7
LA#4PO.8214-2723 v
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 1
given on the date of personal service or three consecutive calendar days following deposit of the
same in the United States mail.
As to MULHALL:
James F.Mulhall
UNIEW
As to the CITY:
Wade McKinney And Kelly A.Trainer,Esq.
City Manager Burke,Williams&Sorensen,LLP
City of Atascadero 2875 Michelle Drive,Suite 350
6907 El Camino Real Irvine,California,92606
Atascadero,CA 93422
WHEREFORE,the parties hereto have consulted with their respective attorney%, read all of
the foregoing, understand the same,including the specific waiver of claims under the ADEA
and OWBPA,and agree to all of the provisions contained herein.
DATED: January 7, 2011
AMES F. MULHALL
DATED: January 7. 2011 CITY OF ATASCADERO
By:
WADE MCKINNF.Y,CfI"Y MAN GER
Approved as to Form:
None
Representative for James F.Mulhall
Kelly A.Trainer,Esq.
Burke,Williams&Sorensen,LLP
Counsel for the City of Atascadero
Page 7 of 7
LA 46840-8214.2nS Yt
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 1
given on the date of personal service or three consecutive calendar days following deposit of the
same in the United States mail.
As to MULHALL:
James F.Mulhall
As to the CITY:
Wade McKinney And Kelly A.Trainer,Esq.
City Manager Burke,Williams& Sorensen,LLP
City of Atascadero 2875 Michelle Drive,Suite 350
6907 EI Camino Real Irvine,California.,92606
Atascadero,CA 93422
WHEREFORE, the parties hereto have consulted with their respective attorneys, read all of
the foregoing, understand the same,including the specific waiver of claims under the AREA
and OWBPA,and agree to all of the provisions contained herein.
DATED:
JAMES F.MULHALL
DATED: CITY OF ATASCADERO
By:
WADE MCKINNEY,CITY MANAGER
Approved as to Form:
Representative for lames F.Mulhall
Kelly A.Triiner,Esq.
Burke,Williams&Sorensen,LLP
Counsel for the City of Ataxadero
page 7 or 7
LA*4W-8214-2728 v 1
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
1=
June 16,2011 GRAND JURY JUN 16 2011
Confidential
a
Mr Tom O'Malley Mayor ICE
City of Atascadero
6905 El Camino Real Suite 6
Atascadero,Ca 93422
Dcar Mr O'Malley
The San Luis Obispo County Grand Jury has completed the attached report titled "What's the
Deal Between The City of Atamadero and the Former Chief of Police?" This copy of the
rcport is bcing provided to you two days to advance of its public release, as required by
California Penal Code §933 05(f),which states
A grand jury shall provide to the affected agency a copy of the portion of the grand jury
report relating to that person or entity two working days prior to its public release and
after the approval of the presiding judge No officer agency, department, or governing
body of a public agency shall disclose any contents of the report prior to the public
release of the final report
Please check the last page of text of the report for the timing of your response.if any,as required
by the Penal Codc § Sections 933 through 933 05 of the Penal Code are attached for your
reference Also attached is a forst for your responses to its findings and recommendations
Please keep in mind that this report must be kept confidential until its public release by the
Grand Jury
ReRectfully,
Lee Stephens,Foreperson
2010/2011 Grand Jury
Enclosures
PRONE (805)781 5188 • F.Ax.(805)781 1156
PO Box 4910 • SAN Lets Osisi'o Ca1JFoRNIA 93403
www.slocourts.net
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
WHAT WAS THE DEAL BETWEEN THE CITY OF
ATASCADERO AND THE FORMER CHIEF OF POLICE?
AN INVESTIGATION INTO THE
RESIGNATION/TERMINATION SETTLEMENT AGREEMENT
INTRODUCTION
On January 8,2011,two San Luis Obispo County news outlets ran stories based on an
announcement from the City of Atascadero(the City)that its Chief of Police(Chief)had
resigned the previous day in order to spend more time with his family One story also quoted the
new Acting Chief of Police who stated,"It was a personal decision and we respect it."
On January 19,2011 and January 20,2011 respectively,these same two news outlets ran stones
based on an announcement from the City that the former Chief had entered into a settlement
agreement with the City,which stated that the parties"wish to mutually terminate"his
employment. The City concurrently released a copy of the Settlement Agreement. This was
done in response to a public records request for the Settlement Agreement.
Representatives of the City declined to comment further on the Settlement Agreement in
response to inquiries from the news outlets. Also,the former Chief provided no further
elaboration and insisted that he had resigned. These stories left the news outlets and citizens
wondering publicly whether he had resigned or was terminated. What exactly happened that
resulted in the former Chief leaving[us position with the City?
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
ORIGIN
This investigation onginatod from a citizen complaint. The complaint noted a discrepancy
between resignation and the mutual agreement to terminate employment statements given by the
former Chief and the City It also asserted a broader concern about the City's fiduciary
responsibility to taxpayers in malung a settlement payment to the former Chief. Dunng the
course of its investigation,the Grand Jury received information suggesting there was an
unwarranted pattern of settlement payments by the same City Manager to other police personnel
going back to 2004 The Grand Jury received two similar additional complaints,one anonymous
and one signed. The Grand Jury decidod to focus its investigation on the current controversy
with respect to the discrepant statements and the process of their release to the public,in order to
produce a timely report. It deferred a possible investigation into the broader question of the
City's fiduciary responsibility in this case or historically to a future Grand Jury
AUTHORITY
The Grand Jury's authority stems from California Penal Code Sections 925(a) Section 925(a)
states in relevant part" the grand Jury may investigate and report upon the operations,accounts
and records of the officers,departments,functions,and the method or system of performing the
duties of any such city[an incorporated city located in the county]or Joint powers agency and
make such recommendations as it may deem proper and fit."
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Attachment 2
METHOD
In conducting the investigation that resulted in this report,the Grand Jury did the fol lo�v ing:
• Interviewed the complainant.
• Interviewed representatives of City staff and the City Council.
• Revicwcd relevant news stories and blogs related to those stones
• Reviewed agendas,minutes,and video recordings of City Council meetings.
• Reviewed photocopied original documents suppliod by City Staff.particularly the
Employment Agreement,the Settlement Agreement and the personnel file of the former
Chief.'
• Reviewed statutes applicable to the conduct of City Council meetings and the permitted
disclosure of proceedings at closed sessions of the City Council.
• Consulted with County Counsel concerning the rights and obligations of the Grand Jury
in conducting and reporting on this investigation.
NARRATIVE
In responding to the Grand Jury investigation involving the resignation and/or mutual agreement
to terminate the employment of the former Chief of Police,the City of Atascadero stag readily
provided the Grand Jury with the former Chiefs Employment Agreement and the Settlement
Agreement. It should be noted that both of these are also public documents. To gain a better
understanding of the Employment Agreement,it is discussed at some length below
' California Penal Code Section 832.7(a),paraplvased,protects the confidentiality of personnel records of peace
officers maintained by any local agency,but this section does not apply to investigations or proceedings
concerning the conduct of peace officers or an agency or department that employs those officers conducted by a
Cry 1uy
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
Tho EmphMnwnt Agreement
The Chief was hired,effective December 29,2007 2 Section 2A of the Employment Agreement
states that the Chief shall serve at the will and pleasure of the City Manager and that the City
Manager may terminate the Chief as further provided in the Employment Agreement at any time
for any reason or no reason at all.
Section 3 of the Employment Agreement deals with the legal rights and remedies available to
both the Chief and the City with respect to the processes for ending his employment. Section 3
of the Employment Agreement describes five different methods of termination with the various
rights and remedies specified for each termination method. "These are paraphrased below-
1 The first method(Section 3A of the Employment Agreement)permits the City
Manager and the Chief to mutually agree in writing to terminate the employment of
the Chief. There is no specification as to the conditions and terms of a mutual
termination agreement or the amount of any severance or settlement payment.
2. The second allows the City to terminate the Chief at anytime without cause It allows
for severance compensation equal to six months of salary and henelits,and nothing
else.
3 The third allows the Chief to terminate his employment(i.e.,resign)for any reason
upon 30 days prior written notice. Under this method the Chief is entitled only to
accrued unused and other benefits under applicable City rules,stats and federal law,
but not to any severance pay or compensation.
4 The fourth allows for the City Manager to terminate the Chief for cause. Under this
method,the Chief is not entitled to any severance pay or compensation,other than
accrued unused vacation leave. Undcr this method,the Chief is entitled to prior
2 See Appendix A for a complete copy of the Employment Agreement.
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
written notification of the reasons for the tcmunation,supporting facts,copies of
those facts and investigations,and five days to respond,orally or in writing or both to
the City Manager,and he may ask,as a matter of right,for a new hearing of the facts
before the City Council. The City Council may reverse the City Manager,in which
case the City Manager may terminate the Chief without cause.
5 The fifth allows the City Manager to terminate the Chief if he has been disabled from
performing the functions of the position and it has been medically determined that he
is permancritly disabled from performing those functions. There is no statement as to
what the compensation might be for this kind of termination.
One other section of the Employment Agreement is worth noting. Section 5B provides that the
City Manager"SHALL"(emphasis added)review and evaluate the performance of the Chief of
Policeannually The Chief is entitled to a summary written statement of the evaluation and the
opportunity to discuss the evaluation with the City Manager Contrary to the requirement of the
Employment Agreement,the Grand Jury learned in an interview that there was only one written
review,done at the end of 2009
The Settlement Agreement
The Settlement Agreement was a mutual agreement to terminate employment between the City
Manager and the former Chief in accordance with section 3A of the Employment Agreement.
To gain a better understanding of the Settlement Agreement and the procc-s-s leading up to it,
some of its sections and tenns and their implications are discussed in sonic depth here
The Process Leading Up to the Settlement Agreement
Sometime in late 2010,the City Manager initiated a discussion with the Chief for the purpose of
achieving a mutual agreement to terminate his employment,as allowed for under the first
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
method(Section 3A)of his Employment Agreement.Thcsc discussions concluded with the
negotiated written Settlement Agreement that was signod by both parties on January 7,2011 3
A Focus on Some of the Sections and Terms of the Settlement Agreement
Section 3 of the Settlement Agreement and General Relcase described the various promises of
each party that will achieve their mutual wish to terminate the Chiefs employment_ Thcse arc
paraphrased below-
3 1 The City shall provide the Chief the gross sum of one hundred and twenty-six thousand
dollars(S126,000 000)(the"Settlement Payment") The Settlement Payment shall be issued
to the Chief within five(5)business days of the effective date of the agreement on a check
made payable to'James F Mulhall.' The partics agrcc that the Sciticmcnt Payment shall be
subject to all state and foderal withholding requirements.
3 4 The Chief agrees that his signature on this Agreement shall be deemed a voluntary
resignation from his employment as Police Chief effective January 7,2011 ("Resignation")
3 6 The City shall cash out all unused paid administrative leave and vacation Icavc that has
accrued from the Chiefs start of employment through January 7,2011,effective five(5)
business days of the effective date of the Agreement. This is subject to all state and federal
withholdings and taxes. The Chief docs not meet the minimum qualifications for the City to
cash out the Chiefs unused sick leave
The Grand Jury learned in an interview that the approximatc cash-out value of the former Chiefs
unused pard administrative leave and vacation leave was about$35,000
Undcr Section 4(g),the Chicf was given seven days to revoke the Settlement Agreement,so the
Effective Date of the Agreement was January 14,2011
' See Appendix B for the SETTLEMENT AGREEMENT AND GENERAL RELEASE
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
Implications of the Settlement Agreement Termination Without Cause
Had the Chief been terminated by the City without cause,he would have been entitled to six
months'salary and benefits. His base annual salary for fiscal year 2010 was approximately
$132.833' Six months'salary would have been approximately$66,414 The Grand Jury
learned in an interview that the City initially offered a settlement payment of$106,000 in
exchange for the mutual termination agreement and that this amount equaled six months'salary
and benefits.
Implications of the Settlement Agreement Resignation vs.Mutual Termination Agreement
A true resignation is not the same as a mutual termination agreement. Had the Chief resigned in
accordance with the terns of his Employment Agreement he would have given the City a 30-day
pnor written notice. He would have continued to receive his normal salary and to accrue his
normal benclits within this 30-day notice period. At the end of this 30-day pcnod,he would be
paid only for his accrued unused benefits. He would not have been entitled to any Settlement
Payment.
A mutual termination enables the City to transition smoothly from the former Chief of Police to a
new Acting Chief of Police It avoids the potential of a case going to court over diverse claims
each party may make,and the potential higher dollar costs associated with attorneys' fees and
other stresses associated with a court case
The Grand Jury does not know what the City may have saved in dollars as compared with what
dollar amount the Chief may have requested initially above and beyond what he was entitled to
under any provision of his Employment Agreement.
"City of Atascadem Compensation and Cost Information Calendar Year 2010;'p.1,
(httpltwwwAtascadero,org/Alcs/A&aOI oN.20Executivr9:20Salary°/*20and44200entfit%20[nfo%281%29.pdf:
accessed 04 May 2011)
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
Implications Transparency is Another Value to Consider in Evaluating the Deal
Transparency is not something that can be reduced essentially to dollars and cents. The way the
City disclosed this particular deal to the public engendered community frustration with the City
This is evinced by the assorted news stones and citizen complaints,including those made at the
Community Forum time of City Council meetings. The general question was whether the
Chiefs termination was truly a resignation so he could spend more time with his family or
something else entirely,such as a disguised termination for cause Citizens also expressed a
concern about the City's fiduciary accountability to taxpayers.
The Personnel File
The only documents in the Chief's personnel file sent to the Grand Jury by City staff relevant to
the Grand Jury's investigation were his Employment Agreement and his resignation letter
CONCLUSIONS
The Grand Jury determined that the way the City chose to disclose the story about the mutual
agreement to terminate the Chiefs employment led to public confusion and complaints of the
City being insufficiently transparent with respect to its expenditures.
The Grand Jury is satisfied that the negotiation process which resulted in the mutual agreement
method of termination was fair because under the Settlement Agreement the former Chief was
advised he had a right to the assistance of counsel before he signed it,which he waived. He also
had a right to revoke the Settlement Agreement before its cffcctive date,which he did not
invoke
The Grand Jury determined that the former Chief s Employment Agreement entitled him to an
annual written performance evaluation by the City Manager The Grand Jury learned in an
interview that the Chief received one written evaluation in 2009 The disparity between a
2010-2011 San Luis Obispo Grand Jury
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Attachment 2
required formal written annual performance evaluation and continuing a practice that does not
meet this standard warrants a further review by the City Council to determine what,if any risks,
it might present to the City in the future.
FINDINGS
1 There was no violation of law or other improper action by the City Manager of Atascadero in
negotiating and signing a mutual agreement to terminate the employment of the former Chief
in accordance with Section 3A of the former Chicf s Employment Agreement,
2 The City of Atascadero's announcement on January 7,2011 that the former Chief of Police
resigned his position in order to spend time with his family omitted any announcement of the
fact that the former Chief had at the same time signed a Settlement Agreement with a
Settlement Payment of S 126,000
3 The City Manager released the Settlement Agreement only in response to a public
information request.
4 The City's partial and sequential disclosure of the circumstances surrounding the mutual
agreement to temunate the employment of the former Chief exposed the City to media and
community complaints about a lack of transparency from the City
5 A disparity existed between Section 513 of the former Chier's Employment Agreement and
what the Grand Jury learned was the actual evaluation process the former Chicf rcccivcd.
2010-2011 San Luts Obispo Grand Jury
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Attachment 2
RECOMMENDATIONS
I The City of Atascadero should review and consider an appropriate revision to the process by
which its personnel decisions are disclosed to the public This recommendation relates to
Findings 2,3,and 4
2. The City Council should review the possible nsk it is exposed to by a disparity between an
Employment Agreement that requires the City Manager to provide a written annual review
and an actual practice that does not conform to this provision. This recommendation relates
to Finding 5
REQUIRED RESPONSES
The City of Atascadero is required to respond to Findings 1-5 and Recommendations 1-2. the
responses shall be submitted to the Presiding Judgc of the San Luis Obispo County Superior
Court by September 14,2011 Please provide a paper copy and an electronic version of all
responses to the Grand Jury
The mailing addresses for delivery are
Pmiding Judge Grand Jury
Presiding Judge Charles S Crandall
San Luis Obispo County Grand Jury
Superior Court of CaliforniaSan
O Box 4910
1050 Monterey Street
San Luis Obispo,CA 93408 San Luis Obispo,CA 93402
The email address for the Grand Jury is GrandJury(a-.co.slo.ca us
2010-2011 San Luis Obispo Grand Jury
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ITEM NUMBER: C - 1
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Attachment 2
APPENDICES
APPENDIX A. EMPLOYMENT AGREEMENT
APPENDIX B SETTLEMENT AGREEMENT AND GENERAL RELEASE
2010-2011 San Luis Obispo Grand Jury
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ITEM NUMBER: C - 1
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Attachment 2
APPENDIX A
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
EMPLOYMENT AGREEMENT
THIS AGREEMENT,(hereinafter referred to as the Agrocmeew")is made and entered uto this 29th day of Deccn.-lxr
2007,by and between the City of Aiasradcro,County of San Luis Obispo,State of California,a municipal corporation
(liesemaller referred to as the 'City")and Jam"F Mulhall(hereinafter referred to as 'Mulhall').
SUMON 1 EMPLOYMENT
A Tlie City agrees to and shall employ Mulball as the Chief of Police of the Coy of Atascadero Mulhall
agrees 10 perform the functions and duties of die Position Of Chief of Police of the City of Atascadero as described by
state law the Municipal Code of the City of Atascadero,the job descrtpllon of the position of Chief of Polme as
developed by the City Maruger of the Cmry and all other denies and functions as the City Manager of the City shall from
time to time assign
B Mulhall agrees to perform a0 such functions and dunes to the best of his abilities and in a competent sad
efficient manner Mulhall agrees to focus his full professional time,ability and attention to City business during the tam
of this Agreement and agrees Dot to enrage in any other business pursuits whatsoever or directly or indirectly render any
services of a business,commercial or professional nature to any other person or organization,whelhe►for compensation
or otherwise,without the prior written consent of the City Manager
SEC'170N 2 TERM
A Mulhall shall save at the will and pleasure of the City Manager Nothtng in this Agreement shall prevent,
limn or otherwise mierfere with the right of the City Manager to terminate the employment of Mulhall at any ttme and for
any reason,or for no reason,seibjeu only 10 the provisions specified in Section 3 of this Agreement.
B This Agreement 311211 become effective on December 29,200 i and unless otherwise lenninated under the
provisions of Section 3 shall remain in effect ndefinkely
c Nothing in this Section shall or is intended to prevent,limit or otherwise interfere with the ngfo of the City cr
Mulhall to terminnale the etriployiiiert of MUNII prior to the expiration of this Agreement,nr any extension thereof in
aceor6me with Section 3 of this Agreement
SECTION 3 TERMINATION
A The City Manager and MuIball may agree mutually in writing to terminate Mulhall s employment
B the City may terminate Mulball's employment at any time without cause. In the event that Mulhall is
terminated by the City and Mulhall is otherwise ready willing and able to perform his duties under this Agrtemat,lite
City shall pay Mulhall severance compensation equal to six(6)months of salary and benefits In consnderanon of thus
severance payment,Mulhall agrees that he slsall not be enttikel to any other payment or compensation of any kind from
the City in coruscLimn with the termination of his employmem.
C What]may termutate his employment at anytime for any reason by provtdang 30 days poor written notice
to the City Manager in the event that Mulhall provides such written notice,he shall be entitled to receive at die
termination of this empkiyment only such accrued unused and other such benefits as may be due and payable ender
applicable City rule,regulation or policy,andlor under applicable local,state or federal law Mulhall shall not,however
be entitled to any severance pay or other compensation at the termination of his employment_ Durm?the period
subsequent to Mulhall's submission of tits notice ternmmmg his employment.be shall continue to perform his duties as
Chief of Police pursuant to this Agreement unless removed from those dupe%andlor terminated by the City Manager
pu mu ml to the terms of this Agreement. Ilowever in the event that Mulhall is then removed from those duties an<Lor
terminated by the City Manger,Mulhall shall continue to receive compensation in Lite form of salary and benefits thrnugh
the completion of the 30(thirty)day nonoe period
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
D The City Manager may terminate Mulhall s employment for cause. In the event that Mulball is terminated
for cause,he shall not be entitled to the payment of any severance pay or compensation,other than the payment of
accrued unused vacation leave In the event that Mulhall is tennmated fat cause,Mulhall shah be entitled to prior written
notification of the reasons)(or the termination,the facts upon which such reason(s)are based,copies of all supporting
evidence and investigations regarding the facts and reason(s)for the termination,and the right to respond,orally or in
writing or bold, to the City Manager within five (5)wedring days of receipt of the notice of such termination
Furthermore,if requested by Mulhall,Mulhall shall have the right to a herring before the Cty ofAiascadero Crry Council
which shall be a hearing de novo In the event the decision to tennnate for cause is reversed by the City Council and the
City Manager terminates Mulhall s employment without cause,the terms of Subsection B hereof shall apply
E.The City Manager andror Mulhall may terminate this Agreement in the event that Mulball has been unable to
perform the essential functions of his position due to disability for a pciiod of three(3)months and it is medically
determined that Mulhall is permanently disabkd from performing the essentul functions of his position
I A determination that Mulball is permarmil ly disabled shall be made by the City Manger based upon
competent medical eviderace said evaluation and in accord with the applicable state and federal laws pertaining
to the protection of disabled persons, Any determination that Mulhall is permanently disabkd shall be made m
accnrd with the laws governing the city's membership in Cal PERS
2 In the event it is descrmmed by the City Manger that a question exists as to Mulhall s ability to
perform the essential fiinclinns of his position,based upon objcctive facts,the City Manager may rrquirr
Mulhall to undergo a fitness for duty elammatuon. Notning in this subsection s(aall obligate Mulhall to waive
his right to privacy under California Civil Code§56 10(c)(8),nor shall the City seek any report pursuant to this
subsection beyond that to which it would be entitled under California Civil Code§56 10(cx8).
SF.(_T1ON q SALARY AND COMPENSATION
A. Effective upon the comrncncemew of this Agteanent,the City shall pay to Mulhall a hate.%ahiry within
salary range Pn58 This salaryshall be paid un a pro rata burs in regular installments pursuant to ttc City's nomial
payroll procedures_
B The City Manager may set forth annually in writing certain goals consisting of duties and responsibiIitres
above arid beyond Mullul's ordinary duties and responsibilities In the evens that Mulhall achieves such goals,he may
be entitled to receive other compensation in addition to his regular salary and benefits. The City Manager shall set forth
the amount of addtioml compensation to which Mulhall would be entitled in the same wasting setting forth the annual
goals. Any such additional compensation will be at the discretion of the City Manager with the approval of the City
council if necessary
C The City shall deduct or vntthhold from Mulball s salary any and all sums as Mulhall may from time to false
direct,or as required by law including,but moa hmted in sums for the payment of federal,state and/or local income
taxes and retirement or pension plans.
D In addition to the compensation act forth in Sub-Section A above,Mulball shall be entitled to receive the
same benefits as are accorded all other and management employees except as herein provided. Mulhall that I be entitled
to the following benefits:
a. lin addition to benefits described herein,Mulhall shall be entitled to the same benctitY panted
to executive management employees.As used herein,benefits include,but are not limited to,vacation,
sick leave,holiday pay,retirement(PERS)benefits and payments,health insuranoe,dental insurance,
vision insurance,and life insurance Pad vacation leave accrual shall be baud upon completion of
seven yeas of service,after two additional years of service the accrual shall mcreau to 7 75 hrstpp
and afkr two more additional years(total of four years service)the accnial shall increase to 8 61
hrvpp
b. Eighty(80)hours of Admnnis"we L air a sell be Ranted per fiscal yea to be used
within that fiscal year
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
that party may he entitled
17 This Agreement shall be governed by and construed in accordance with the laws ol'the State of Callforn:a
fN WITNESS Wil[EkEOF the parties hereto have executed this agreemetu as ofthe date and year first wr men
above
CITY
j1a-uwsF"M-u[halJ
llial
AA
wade G �r
(`tfy h�atWgCJ
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
APPENDIX B
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
SETTLEMENT AGREEMENT AND GENERAL RELEASE
1. PAR
The parties to this Settlement Agreement and General Release(the"AGREEMENT)are
James F Mulhall ("MULHALL'7 and the City of Atascadero, a public entity (the "CITY')
(collectively,the"PARTIES").
2. RECITALS
2.1 MULHALL has been employed by the CITY since January 22, 2007
MULHALL was originally appointed to the position of Police Lieutenant, and was promoted to
the position of Police Chief,an at-will position,on December 29,2007,and MULI TALL currently
holds the position of Police Chief("EMPLOYMENT").
2.2. MULHALL. and the CITY entered into an employment agreement dated
December 29, 2007, which sets forth the terms and conditions of MULHALL'S employment,
including the fact that MULHALL serves at the will of the City Manager ("EMPLOYMENT
AGREEMENT'),
2.3 Pursuant to Section 3.A.of the EMPLOYMENT AGREEMENT,the PARTIES
wish to mutually terminate MULHALL'S EMPLOYMENT C TERMINATION').
24 The PARTIES wish to amicably resolve MULHALL'S EMPLOYMENT Both
MULHALL and the CITY desire to resolve issues of any hind between them. including,but not
limited to,all issues of every kind or nature arising out of or related to his EMPLOYMENT and
the EMPLOYMENT AGREEMENT Neither MULHALL nor the CITY admits any wrongdoing,
and this AGREEMENT is in no way an admission of liability by any party or that any allegations
made by any puny against another party have merit.
3. CONSSIDERATION
3 1 In exchange for the promises and releases set forth herein, the CITY "I
provide MULHALL the gross sum of one hundred and twentysix thousand DOLLARS(5126,000.00)
(the"SEI91EMENC PAYMENT). The SETTLEMENT PAYMENT shall be issued to MULHALL
within five(5)business days of the EFFECTIVE DATE of this AGREEEMENT on a check made
payable to"James F Mulhall." The PARTIES agree that the SETTLEMENT PAYMENT shall be
subject to all state acid federal withholding requirements.
3.2. In further exchange for the releases and promises set forth herein, the CITY
awes not to pursue a termination for cause under Section 3.D of the EMPLOYMENT
AGREEMENT, and MULHALL agrees to waive any and all rights he may have to notice and
appeal under Section 3.13 of the EMPLOYMENT AGREEMENT or under any other law or basis.
3.3 The CITY agrees to provide MULIIALL with a positive reference for future
employment,upon the request of MULHALL(the"REFERENCE").
LA 044042I1.2?U vi
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Attachment 2
34 In exchange for the SETTLEMENT PAYMENT, MUU MLL agrees that his
signature on this AGREEMENT shall be deemed a voluritary resignation from his employment as a
Police Chief effective January 7,2011("RESIGNATION").
3.5 In addition,MULHALL hereby,and for his heirs,representatives,successors,and
assigns, releases, acquits, and forever discharges the CITY, its past and pn:scnt employees, agents
officers,representatives,insurers,and attorneys,and its predecessors,successors,and assigns,and all
persons acting by,through,under,or in eoncrri with any of them,and each of them,froth any and all
claims, charges, complaints, liabilities, obligations, promises, benefits, agroements, controversies,
costs, losses, debts, expenses, damages, actions,calyses of action, suits, rights, and demands of any
nature whatsoever,known or u»krimm suspected or unsuspected("MULHALL'S CLAIMS'%which
MULHALL now has or may acquire in the future, which relate to or arise out of his
EMPLOYMENT, the EMPLOYMENT AGREEMENT, the TERMINATION, the
RESIGNATION, the SETII.EMENf PAYMENT,the REFERENCE,the LEAVE PAYMENT,or
any act. omission,occurrence,condition,event,transaction,or thing which was done,omitted to be
done, occurred or was in effect at anytime >iorn the beginning of tune up to and including the
EFFECTIVE DATE,without regard to whether MULHALL'S CLAIMS arise under federal,state,or
local eonstitudons,statutes,rules,regulations,or eontrion law MULHALL expressly acknowledges
that MULHALL'S CLAIMS forever barred by this AGREEMENT specifically include, but are not
limited to, claims based upon any alleged breach of CITY resolution, ordinance, or other policy,
claims based upon any alkged breach of EMPLOYMENT AGREENW%lT,any demand for wages,
overtime, or benefits, any alleged breach of any duty arising out of contract or tort, any alleged
wrongful termination in violation of public policy, any alleged breach of any express or implied
contract for continued employment, any alleged harassment, any alleged retaliation, any alleged
employment discrimination or unlawful discriminatory act,or any clatin or cause of action including,
but not limited to,any and all claims whether arising under any federal,state or local law prohibiting
breach of EMPLOYMENT AGREEMENT, wrongful termination, or employment discrimination
based upon age, race, color, sex, gender, sexual orientation, religion, creed, physical or mental
disability, medical conditym national origin, veteran status, or any other protected category or
charactemstic, and any and all rights or claims arising under the Labor Code, the Peace Officers
Procedural Bill of Rights,the Federal Fair Labor Standards Act,the California Fair Employment and
Housing Act,the Americans With Disabilities Act,Title VII of the Civil Rights Act of 1964,and any
other federal,state,or local civil rights,employment discrimination,or employee rights statute,rule,or
regulation.
3.6. Paid have Benefits. As required by law and the F,MPLOYMLTJT
AGREEMENT, the CCIY will, within five (5) business days of the EFFECTIVE DATE of this
AGREENCENT,shall cash out all unused paid administrative and vacation leave that has accrued from
MULHALL'S start of employment through January 7,2011 ("LEAVE PAYMENT'). This payment
shall be subject to all federal and state withholdings and taxes. The PARTIES ag=that there shall be
no cash out of any unused sick leave under Resolution No 2009-048 because MULHALL does not
meet the rninimuin qualifications for that benefit.
4. SPECIFIC ACKNOWLEDGEMENT OF WAIVER OF CLAIMS UNDER THE
ADEA AXD OWl3PA
The Age Discrimination in Employment Act of 1%7 ("AREA') mattes it illegal for an
employer to discharge any individual or otherwise discriminate with respect to the nature aid
page iof7
LA 1146M4214.2778 v 1
ITEM NUMBER: C - 1
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Attachment 2
privileges of an individual's employment on the basis that the individual is age forty or older The
Older Workers Benefit Protection Act("OWBPA",29 U.S C.§§626,et seq,Pub I.101-433, 104
Stat.978(1990))further augments the ADEA and prohibits the waiver of any right or claim under
the AREA unless the waiver is knowing and voluntary By entering into this AGREEMENT,
MULIIALL acknowledges that he is knowingly and voluntarily,for just compensation in addition
to anything of value to which MULHALL was already entitled,waiving and releasing any rights
he may have under the ADEA and/or OWBPA. MULHALL further acknowledges that he has-
been
asbeen advised and understands,pursuant to the provisions of the AREA and OWBPA,that:-
(a)
hat:(a) this waiver/release is written m a manner understood by MULHALL,
(b) MULHALL is aware of and has been advised of his rights under the ADEA
and OWBPA.and of the legal significance of his waiver of any possible claims he currently may
have under the ADEA,OWBPA,or similar age discrimination laws;
(c) MULHALL is entitled to a reasonable time of at least twenty-one(21)days
within which to review and consider this AGREEMENT,and the waiver and release of any rights
he may have under the ADEA,the OWBPA,or similar age discrimination laws,but he may,in the
exercise of his own discretion,sign or reject this AGREEMENT at any time before the expiration
of the twenty-one(2 1)days;
(d) the waivers and releases set forth in this AGREEMENT shall not apply to
any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE
of this AGREEMENT',
(e) MULHALL has been advised by this writing that he should consult with an
attorney prior to executing this AGREEMENT,
(f) MULHALL is aware of his right to discuss this waiver and release with
legal counsel of choice and he does not need any additional time within which to review and
consider this AGREEMENT or engage in further discussions with said legal counsel,
(g) MULHALL has seven days following the parties' full and complete
execution of this AGREEMENT to revoke the AGREEMENT (the date of expiration of this
seven-day period shall be referred to as die"EFFECTIVE DATE"). The revocation must be in
writing and received by the CITY'S counsel,Kelly A_Trainer,Esq.,Burke,Williams&Sorensen,
LLP.2875 Michelle Drive,Suite 350,Irvine,California,92606,within the revocation period,and
(h) this AGREEMENT shall not be effective until the EFFECTIVE DATE.
S. UNKNOWN CLAIMS
MULHALL represents that it is his intention in executing this document that this
AGREEMENT shall be effective as a bar to each and every claim,demand, suit, action,cause of
action, debt, attorneys' fees and costs, and the claims hereinabove specified, whether known or
unknown, suspected or unsuspected, and in firthcrance of this intention MULHALL HEREBY
EXPRESSLY WAIVES ALL RIGHTS AND BENEFITS CONFERRED UPON HIM BY THE
page]of 7
LA M4Er0.9214271E w i
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
PROVISIONS OF SECTION 1542 OF THE CIVIL CODE OF CAT.TFORNIA, WHICH
MULHALL UNDERSTANDS PROVIDES AS FOLLOWS
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Notwithstanding Section 1542 of the Civil Code of California,MULHALL expressly consents that
this AGREFNIENT shall be given full force and effect according to each and all of its express
terms and provisions, including as well those relating to unknown and unspecified claims,
demands, suits,actions,causes of action and debts,if any,and those relating to any other claims,
demands,suits,actions,causes of action and debts hereinabove specified. This release and waiver
includes, among others, claims based on age discrimination arising under the federal Age
Discrimination in Employment Act and applicable state law,and attorneys' fees and costs.
b. WAIVER OF ADDITIONAL C.LAIM.S
MULI LALL hereby waives any envisions of state or federal law that migh:recluire a more detailed
sptxrficaoon of the claims being released pwmw to the provisions of f'wagrapb 3,4,and 5,above.
7 REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represents and warrants to,and agrees with, each
other party as follows:
71 Advice of Counsel. Each party is aware of his or its right to receive or has
received independent legal advice from its attorney(s)with respect to the advisability of making the
seulemcnt provided for herein,with respect to the advisability of executing this AGREEMENT,and
with respect to the meaning of California Civil Code Section 1542.
7.2. Nu Fraud in Indwenunt: No party(nor any officer,agent,employee,representative,
or attorney of or for any party)has made any statement or representation or failed to make any statement
or mp esentation to any other party regarding any fact relied upon in entering into this AGREEMENT,
and neither party relics upon any statement,representation,omission,or promise of any other party(or of
any office:, agent, employee, mrmcnutive, or attorney of or for any party) in execti ing this
AGREEMENT, or in making the settlement provided for herein, except as expressly stated to this
AGRE-EM04 T Each term of this AGREEMENT is contractual and not merely a recital.
7.3 IDdc=dcnt Investigation: Each party to this AGREEMENT has mask: such
investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters
pertaining thereto,as it deems necessary
74 CompMhension and Authonty Each patty or responsible officer thereof has read
this AGREEMENT and understands the contents hereof. Any of the employees executing this
AGREEMENT on behalf of the CITY are empowered to do so and hereby bind the CITY
pnec 4 r.r 7
U+WWa11214-2728 A
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
7,5 Mistake Waived. In entering into this AGREEMENT and the settlement provided
for herein,each party assumes the risk of any misrepresentation,Concealment,or mistakm if any party
should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was
untrue,or that any fact was concealed from it,or that its understanding of the facts or of the law was
incorrect, such party shall not be entitled to any relief in connection therewith, including without
limitation ort the generality of the foregoing any alleged right or claim to set aside or rescind this
AGREEMENT This AGREEMENT is intended to be end is final and binding between the parties,
regardless of any claims of misrepresentation, promise made without the intent to perform,
concealment of fact,mistake of fact or law,or any other circumstance whatsoever
7.6. Later Discovery. Each party is aware that it may hereafter discover claims or
facts in addition to or different from those it now knows or believes to be true with respect to the
matters related herein. Nevertheless, it is the intention of the parties to fully, finally, and forever
settle and release all such matters,and all claims relative thereto,which do now exist,may exist,or
have previously existed between MULHALL and the CI1Y In furtherance of such intention, the
releases given by MULHALL here shall be and remain in effect as HI and complete releases of all
such matters,notwithstanding the discovery or existence of any addttiottal or different claims or facts
relative thereto
77 wnership of Claims: MULHALL represents and warrants as a material term of
this AGRL'F.MENT that he has not heretofore assigned,transferred,released,or granted,or purported
to assign, transfer, release, or grant, any of the CLAIMS disposed of by this AGREEMENT In
executing this AGREEMENT,MULIiALL further warrants and represents that none of the CLAIMS
released by therm hereunder will in the future be assigned,conveyed,or transferred Ln any fashion to
any other person andror entity
7.8 Jn4gnnification. The parties agree to indemnify and hold harrrtless each other,
and their respective employees and agents, from, and against, any and all claims, damages, or
liabilities sustained by them as a direct result of the violation or breach of the covenants,warranties,
and representations undertaken pui suant to the provisions of this AGREEMENT
7.9 Fut q CCsrDer�lli9�. The parties will execute all such further and additional
documents as shall be reasonable,convenient,necessary,or desirable to carry out the provisions of
this AGREEMENT
& MISCELLANEOUS
8.1 hk► admission. Nothing contained herein shall be construed as an admission by
the parties of any liability of any kind. Each of the parties hereto denies any liability in connection
with my claim and intends hereby solely to avoid litigation and buy its peace.
8.2. Crovc[Wl]a Law This AGREEMENT has been executed and delivered within the
Statc of California, and the rights and obligations of the parties shall be construed and enforced in
accordance with,and governed by,the laws of the State of California.
8.3 Eull irategM —
tion. "Ibis AGREEMENT is the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and
pegc S of 7
LA 048I0,V 14.1723 0
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
written agreements and discussions. This AGREEMENT may be amended only by a further
agreement in writing,signed by the parties.
8.4 Continuing Benefit: This AGREEMENT is binding upon and shall inure to the
benefit of the parties,their respective agents,employees,representatives,officers,attorneys,insurers,
assigns,heirs,and successors to interest.
8.5 Joint Urfljug: Each party has cooperated in the drafting and preparation of this
AGKEFNIENT and nu party shall be deemed to have been the drafter of this AGREEMENT
Hence,this AGREEMENT shall be construed within its fair meaning,and not against any party
8.6. Scvcrabilitr In the event that any term, covenant, condition, provision, or
agreement contained in this AGREEMENT is held to be invalid or void by any court of competent
jurisdiction,the invalidity of any such term,covenant,condition,provision,or agreement shall in no
way affect any other term,covenant, condition, provision,or agreement and the remainder of this
AGREEMENT shall still be in full force and effect.
8.7 idles. The titles included in this AGREEMENT are for reference only and arc
not part of the tenors of this AGREEMENT, nor do they in any way modify the terms of this
AGRFEMENT
8.8. Counterparts: This AGREEMENT may be executed in counterparts,and when
each party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original,and,when taken together with other signed counterparts,shall constitute one
AGREEMENT,which shall be binding upon and effective as to all patties as of the EFFECTIVE
DATE.
8.9 Non-Nsma MULHALL and the CITY agree that each shall not
disparage the other party,or any of the other party's employees, agents,officers,or attorneys,to
any other person or entity,verbally,in writing,or through any other form of communication. The
CITY agrees that this provision shall be binding upon its officers, managing agents, and
supervisors. MULHALL understands and agrees that this agreement not to disparage the CITY
may affect what he may state in future employment applications and interviews, in addition to
other contexts where he may be called upon to discuss the CITY and his relationship thereto
MULHALL and the CITY agree,however, that this non-disparagement provision shall not apply
with regard to truthful testimony that is given in compliance with a subpoena,court order,or other
compulsory legal process. In the event that MULHALL or the CITY is subpoenaed or ordered by
the court or believes that the party may be compelled by legal process to give testimony that will
disparage the other party, such party shall immediately notify the other party in writing in
accordance with paragraph 8.10 so as to give the party the opportunity to object before the
appropriate court. MULHALL and the CITY acknowledge and agree that this non-disparagement
provision is a material element of the CITY'S,and MULHALL'S agreement hereto
8 10 Notice: Any and all notices given to any party under this AGREEMENT shall
be given as provided in taus paragraph. All notices given to either party shall be made by certified
or registered United States trail, or personal delivery, at the noticing party's discretion, and
addressed to the parties as set forth below Notices shall be darned,for all purposes,to have been
page 6 or 7
LA 04140-12i,t.27211 v I
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
given on the date of personal service or three cnmccutive calendar days following deposit of the
same in the United States mail.
As to MULHALL
James F Mulhall
As to the CITY
Wade McKinney And Kelly A.'Trainer,Esq
City Manager Burke,Williams&Sorenwrt,LLP
City of Atascadcro 2875 Michelle Drive,Suite 350
6907 El Camino Real Irvine,California,92606
Atascadero,CA 93422
WHEREFORE,the parties hereto have consulted with their respective attorneys,read all of
the foregoing,understand the same,including the specific waiver of claims under the ADEA
and OWBPA,and agree to all of the provisions contained herein.
I1ATF.D' January 7, 2011
Ah`.ES F MULIIALL
DATFD. January 7, 2011 CITY OF ATASCADERO
By.
WADE MCKINNEY,CITY MAN GER
Approved as to Form.
None
Represcntative for lames F Mulhall
Kelly A.Trainer,Esq
Burke,Williams&Sorensen,LLP
Counsel for the City of Atascadero
pa@c 7 of 7
u A'41404214-Ml�1
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 2
given on the date of personal service or three consecutive calendar days following deposit of the
same in the United States mail.
As to MULHALL
James F Mulhall
As to the CITY
Wade McKinney And Kelly A.Trainer,Esq.
City Manager Burke,Williams&Sorensen,LLP
City of Atasoadero 2875 Michelle Drive,Suite 350
6907 El Camino Real Irvine,California,92606
Atascadero,CA 93422
WHEREFORE,the parties hereto have consulted with their respective attorneys, read all of
the foregoing,understand the same,including the specific waiver of claims under the AREA
and OWBPA,and agree to all of the provisions contained herein.
DATED
JAMES F MULHALL
DATED- CITY OF ATASCADERO
By
WADE MCKINNEY,CITY MANAGER
Approved as to Form
Representative for James F Mulhall
Kelly A.T finer,Esq.
Burke,William&Sorensen,LLP
Cotmsel for the City of Atascadero
pope 7 or 7
LA#464"214.2722 v I
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 3
Response to Grand Jury Report Form
Report Title: "WHAT WAS THE DEAL BETWEEN THE CITY OF ATASCADERO AND
THE FORMER POLICE CHIEF"
Report Date: The Grand Jury Report is undated, but was sent to the City by
correspondence from the Grand Jury dated June 16, 2011.
Response by: Wade McKinney Title: City Manager
FINDINGS
I (we) agree vAth the findings numbered: 1, 2 and 5
1 (we) disagree wholly or partially with the findings numbered. 3 and 4
(Attach a statement specifying any portions of the findings that are disputed, include
an explanation of the reasons.)
RECOMMENDATIONS
Recommendations numbered NIA have been implemented_
(Attach a summary describing the irnp!ernented actions.)
Recommendations numbered 1 and 2 have not yet been implerinted, but will be
implemented in the future.
(Attach a timeframe for the implementation)
Recommendations numbered NIA require further analysis.
(Attach an explanation and the scope and pararne!ers of an analysis or study.
and a timeframe for the matter to be prepared for discussion by the officer or
director of the agency or department being investigated or reviewed, including
the governing body of the public agency when applicable. This timeframe shall
not exceed six months from the date of publication of the grand jury report.)
Recommendations numbered NIA vrrll not be implernented because they are not
warranted or are not reasonable.
(Attach an explanation.)
Date: September 13, 2011 Signed-
Number
igned
Wade McKin ey, City M�a'n`aalger
Numher of pages attached 2 r
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 3
ATTACHMENT TO GRAND JURY REPORT FORM RESPONSE BY CITY OF ATASCADERO
FINDINGS
3. Finding: The City Manger released the Settlement Agreement only in response to a public
information request.
Response to Finding 3:
The City appreciates the fact that in Finding No. l the Grand Jury found there was no violation of
law or other improper action by the City Manager of Atascadero in negotiating and signing a mutual
agreemem to terminate the employment of the former Chief in accordance with Section 3A of the former
Chief's Employment Agreement. Finding 1 is significant and should be considered when evaluating
Findings 2 through 4 of the Grand Jury.
With regard to Finding No.3,this Finding is not complete on the subject of the release of the
Settlement Agreement by the City. The Settlement Agreement was executed by the City and James
Mulhall on January 7,2011. Under Section 4(g)of the Settlement Agreement,as required bylaw.James
Mulhall had seven days after January 7,2011 to revoke the Settlement Agreement which would make the
Settlement Agreement Effective Date Friday,January 14,2011. On January 18,2011,the City notified
James Mulhall that a copy of the Settlement Agreement was going to be released to the public by the City.
On January 19,2011,only two(2)business days following the Settlement Agreement Effective Date of
January 14,2011.the City provided a copy of the Settlement Agreement to the party who submitted the
public records request,and the City also provided a copy of the Settlement Agreement to all 19 members
of the press who received the press release which included:
Alison Reeder ali.sommder'akcay,cotn
Amer Gen Media(KZOZ,K-Jug,Q-104,The Krush)
ksignorelliruiamcricanacncralmcdia.com
Atas Chamber of Commerce i fixyatt►s�iersxhantlxc•urg
Bethany Tucker btuckcvk sby_com
KCET-Zack Barons newsdesk,u!kcct.ont
KCOY News I264kcoy.com
KEYT jbcckfu�cevt.com
KPRL reulajoa aprl.com
KSBY news@hby.com
KVEC news,W920kvec.com
KXDZ amyiJrr iocg1 tralcoast.com
Main Street atasms[sbcglobal.net
Matt Fountain Four inQ1n«vti_messlo.com
New Times calendar(anewtimesslo.com
Paso Press citv'd,,,Mrublcspress.com
Paula McCambridge neW(Aawwaderonews.ct7g
Santa Barbara News mcolefgthesbnn.com
The Tribune newsroom(a.thetribunenews.com
Tonya Strickland t_strickland(ii thetribunenews.coin
ITEM NUMBER: C - 1
DATE: 09/27/11
Attachment 3
Thus,the City did not limit the disclosure of the Settlement Agreement to only the party who
submitted the public records request.
4. Findine: The City's partial and sequential disclosure of the circumstances surrounding the mutual
agreement to terminate the employment of the former Chief exposed the City to media and community
complaints about a tack of transparency from the City.
sponse to Finding 4:
The Settlement Agreement was executed by the City and James Mulhall on January 7,2011.
Under Section 4(g)of the Settlement Agreement,as required by law,James Mulhall had seven days after
January 7,2011 to revoke the Settlement Agreement which would be until Friday January 14,2011 which
was designated as the Effective Date of the Settlement Agreement. On January 19,2011,only two(2)
business days following the Settlement Agreement Effective Date of January 14,2011,the City provided
a copy of the Settlement Agreement to the party who submitted the public records request and the City
also issued a press release as noted above to multiple media sources. The City respects the right to
privacy of its employees which must be considered in this process. The Settlement Agreement sets forth
in full the terms of the separation of James Mulhall from his employment with the City of Atascadero.
RECUM;NF NI)A'T'IONS
1. Recommendation: The City of Atascadero should review and consider an appropriate revision to
the process by which its personnel decisions are disclosed to the public. This recommendation relates to
Finding 2,3 and 4.
Response to Recommendation No.1:
The City will review and consider an appropriate revision to the process by which the City's
personnel decisions are disclosed to the public consistent with all applicable laws. In regard to time
frame,this review and consideration process is ongoing.
2. Recommendation: The City Council should review the possible tisk it is exposed to by a
disparity between an Employment Agreement that requires the City Manager to provide a written annual
review and an actual practice that does not conform to this provision. This recommendation relates to
Finding 5.
lkesWnse to 12eeommendation No.2:
The City is conducting a review of the Personnel Rules and Regulations which will include the
period performance review issue. We expect the Rules and Regulations will be presented to the City
Council for discussion and action during the Fall of 2011.
3
ITEM NUMBER: C - 2
DATE: 09/27/11
m mm m
f 1918 m 197e
r
Atascadero City Council
Staff Report - City Attorney's Office
Remittance Agreement Pursuant to California Health
and Safety Code Section 34194.2
RECOMMENDATION:
Council adopt Draft Resolution, approving the Remittance Agreement pursuant to
California Health and Safety Code Section 34194.2 between Atascadero Community
Redevelopment Agency and the City of Atascadero.
DISCUSSION:
This Agenda item arises from ABX 1 27. Pursuant to Health and Safety Code Section
34194.2, the City may enter into an agreement with the Agency, whereby the Agency
will transfer a portion of the taxes allocated to it pursuant to Health and Safety Code
Section 33670 ("Tax Increment") to the City, in an amount not to exceed the annual
remittance required that year pursuant to Chapter 3 of Part 1.9, for the purpose of
financing activities within the redevelopment area that are related to accomplishing
Agency project goals ("City Remittances").
Health and Safety Code Section 34194.2 reads as follows:
34194.2. In choosing to continue redevelopment pursuant to this part, a city or
county may enter into an agreement with the redevelopment agency in that
jurisdiction, whereby the redevelopment agency will transfer a portion of its tax
increment to the city or county, in an amount not to exceed the annual
remittance required that year pursuant to this chapter, for the purpose of
financing activities within the redevelopment area that are related to
accomplishing the redevelopment agency project goals.
ITEM NUMBER: C - 2
DATE: 09/27/11
The purpose of the Remittance Agreement is to provide for the foregoing transfer of Tax
Increment funds, should the Supreme Court uphold the validity of AB 26 and AB 27, in
this current fiscal year and forthcoming fiscal years, in amounts sufficient to pay the
annual City Remittances required by the Alternative Redevelopment Program and to
allow the City to undertake projects, programs and activities related to the Agency's
project goals, including the administrative costs of undertaking those projects,
programs, and activities.
FISCAL IMPACT:
The fiscal impact to the City as a result of this Remittance Agreement is that the City will
receive tax increment from the Agency to reimburse the City for the community
remittance payments which will be due on January 15, 2012 and May 15, 2012 in the
total amount of $1,516,774 and the City would also be reimbursed for community
remittance payments in the following years.
ALTERNATIVE:
The City could decide not to enter into the Remittance Agreement.
ATTACHMENT:
1. Remittance Agreement Pursuant to California Health and Safety Code Section
34194.2 between Atascadero Community Redevelopment Agency and the City of
Atascadero
2. Resolution Approving Remittance Agreement
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 1
REMITTANCE AGREEMENT
PURSUANT TO
CALIFORNIA HEALTH AND SAFETY CODE SECTION 34194.2
THIS REMITTANCE AGREEMENT (this "Agreement") is entered into this
27th day of September, 2011, by and between the CITY OF ATASCADERO, a general law city
and municipal corporation (the "City") and the ATASCADERO COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), with
reference to the following facts:
A. The Agency is responsible for implementing the Redevelopment Plan(s)
for the Atascadero Redevelopment Project(s) ("Redevelopment Plan(s)") covering certain
properties within the City("Project Area(s)").
B. Assembly Bill No. xl 26 ("AB 26") and Assembly Bill No. xl 27 ("AB
27") were passed by the State Legislature on June 15, 2011 and signed by the Governor on June
29, 2011.
C. AB 26 requires that each redevelopment agency be dissolved unless,
pursuant to AB 27 (to be codified as Part 1.9 of the California Health and Safety Code,
commencing with Section 34192), the community that created it enacts an ordinance committing
it to participate in what is commonly known as the voluntary alternative redevelopment program
and to make certain statutorily-specified payments described in Health and Safety Code Section
34194 to the County Auditor-Controller ("Alternative Redevelopment Program" or
"Program").
D. On August 9, 2011, The City Council of the City of Atascadero (the "City
Council") adopted an Urgency Ordinance No. 556 to comply with AB 27 and participate in the
Alternative Redevelopment Program. Also on August 9, 2011, the City held a first reading of a
regular Ordinance No. 557 and the second reading and adoption of the regular Ordinance
occurred on September 13, 2011. These two ordinances (i.e. the Urgency Ordinance and the
regular Ordinance) are collectively referred to herein as the "Ordinance".
E. An action challenging the constitutionality of AB 26 and AB 27 has
been filed on behalf of cities, counties and redevelopment agencies and is being litigated by
the League of California Cities and California Redevelopment Association, and the Supreme
Court of the State of California has stayed, in part, the effect of AB 26 and AB 27.
F. Pursuant to the Ordinance, the City has committed to make the remittances
required by the Alternative Redevelopment Program, to otherwise comply with the Program's
requirements and, in doing so, to authorize the continuation of the Agency after enactment of AB
26 and AB 27.
G. The City has committed to make the remittances under protest and without
prejudice to the City's right to recover such amounts and interest thereon in the event there is a
final determination by the Supreme Court that AB 26 and AB 27 are invalid.
3
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 1
H. Notwithstanding the Supreme Court's order staying the effectiveness
of AB 26 and AB 27, the City and Agency desire to prepare for the Supreme Court's
ultimate determination on the merits of the litigation and to be prepared for continued
operation of the Agency if AB 26 and AB 27 are found to be a valid exercise of the State
Legislature's power.
I. Execution of this Agreement will allow the City and Agency to
continue redevelopment activities immediately upon the Supreme Court's determination on
the merits of the litigation, or upon its lifting of the stay as to AB 26 and AB 27, should
either take place.
J. In the event the Supreme Court issues a final determination that AB 26
and AB 27 are invalid, this Agreement shall be null and void and of no further force or effect, as
the City has already determined that the Ordinance shall be deemed to be null and void and of no
further force or effect in such event.
K. Unless and until AB 26 and AB 27 are invalidated, the City, pursuant to
Section 34194.1, may use any available funds not otherwise obligated for other uses in making
remittances to the County Auditor-Controller pursuant to Section 34194 or 34194.5.
L. Pursuant to Section 34194.2, the City may enter into an agreement with
the Agency, whereby the Agency will transfer a portion of the taxes allocated to it pursuant to
Health and Safety Code Section 33670 ("Tax Increment") to the City, in an amount not to
exceed the annual remittance required that year pursuant to Chapter 3 of Part 1.9, for the purpose
of financing activities within the redevelopment area that are related to accomplishing Agency
project goals ("City Remittances").
M. The purpose of this Agreement is to provide for the foregoing transfer of
Tax Increment funds, should the Supreme Court uphold the validity of AB 26 and AB 27, in this
current fiscal year and forthcoming fiscal years, in amounts sufficient to pay the annual City
Remittances required by the Alternative Redevelopment Program and to allow the City to
undertake projects, programs and activities related to the Agency's project goals, including the
administrative costs of undertaking those projects,programs, and activities.
N. The obligations of the Agency under this Agreement shall constitute an
indebtedness of the Agency for the purpose of carrying out the Redevelopment Plan(s) for the
Project Area(s).
O. As further stated in the Ordinance, the City reserves the right, whether any
City Remittance has been paid,to challenge the legality of AB 26 and AB 27.
NOW, THEREFORE,the parties hereto do mutually agree as follows:
I. INTRODUCTORY PROVISIONS
The recitals above are an integral part of this Agreement and set forth the
intentions of the parties and the premises on which the parties have decided to enter into this
Agreement and said recitals are hereby incorporated into this Agreement.
4
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 1
II. OBLIGATIONS OF THE PARTIES
1. The Agency shall transfer to the City in a timely manner Tax Increment or
any other available funds in an amount sufficient for the City to make the City Remittances
required by the Alternative Redevelopment Program. The amount to be transferred to the City
shall equal the entire amount determined by the State Director of Finance to be the City's
obligation under the Program, subject to the City's right to appeal the amount of remittance to
the Director pursuant to the Program. The City and Agency agree that if Agency does not have
sufficient Tax Increment or other funds available to make the full City Remittance required in
any fiscal year, City shall have no obligation to use City funds for such purpose, in which case
the Agency may be deemed to be dissolved under Health and Safety Code Section 34195.
Notwithstanding the foregoing, Agency shall have no obligation to transfer any monies under
this Section 1 for the duration of the Supreme Court's stay.
2. Subject to the timely receipt from the Agency of Tax Increment or other
funds sufficient to make the annual City Remittances required by the Program, the City shall pay
to the San Luis Obispo County Auditor-Controller, no later than January 15 and May 15 of each
year, one-half of the City Remittance amount due for each fiscal year while this Agreement is in
effect. The City's obligation to make such City Remittance payments shall be a special limited
fund obligation of the City payable solely from Tax Increment or other available funds paid to
the City by the Agency pursuant to this Agreement. Nothing contained in this Agreement shall
be deemed to be a pledge of the City's general fund revenues or any other assets to pay the City
Remittances for any fiscal year. Notwithstanding the foregoing, City shall have no obligation to
transfer any monies under this Section 2 for the duration of the Supreme Court's stay.
III. TERMINATION
This Agreement shall be deemed null and void if AB 26 and AB 27 are determined by a
court of competent jurisdiction to be unconstitutional, illegal, invalid or otherwise unenforceable
or inapplicable, for any reason or in any manner. Notwithstanding the foregoing or any other
provision of this Agreement, either the City or the Agency may terminate this Agreement at any
time, for any reason or no reason,by written notice to the other party.
5
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 1
IV. LIABILITY AND INDEMNIFICATION
In contemplation of the provisions of California Government Code section 895.2
imposing certain tort liability jointly upon public entities solely by reason of such entities being
parties to an agreement as defined by Government Code section 895, the parties hereto, as
between themselves, pursuant to the authorization contained in Government Code sections 895.4
and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or
employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the
performance of this Agreement to the same extent that such liability would be imposed in the
absence of Government Code section 895.2. To achieve the above-stated purpose, each party
indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses
that may be incurred by such other party solely by reason of Government Code section 895.2.
V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS
I. This Agreement shall be executed in duplicate originals, each of which is
deemed to be an original. This Agreement constitutes the entire understanding and agreement of
the parties, and supersedes all negotiations or previous agreements between the parties with
respect to the subject matter of this Agreement.
2. This Agreement is intended solely for the benefit of the City and the
Agency. Notwithstanding any reference in this Agreement to persons or entities other than the
City and the Agency, there shall be no third party beneficiaries under this Agreement.
3. Any waiver or amendment of the provisions of this Agreement must be in
writing and signed by the authorized representatives of the parties.
4. As to the performance of any obligation under this Agreement of which
time is a component, the performance of such obligation within the time specified is of the
essence.
VI. SEVERABILITY
If any term, provision, covenant or condition of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions
shall continue in full force and effect unless the rights and obligations of the parties have been
materially altered or abridged by such invalidation, voiding or unenforceability.
VI. BINDING ON SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of all successors
and assigns of the parties, whether by agreement or operation of law. This Agreement shall
survive any full or partial merger of the City and the Agency and shall remain in effect and be
fully enforceable according to its terms.
[signatures next page]
6
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
CITY OF ATASCADERO
By:
Wade McKinney, City Manager
Attest:
By:
Marcia McClure Torgerson, City Clerk
Approved as to form:
By:
Brian A. Pierik, City Attorney
COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO
By:
Wade McKinney, Executive Director
Attest:
By:
Marcia McClure Torgerson, C.M.C., Agency Secretary
Approved as to form:
By:
Brian A. Pierik, Agency Counsel
7
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 2
DRAFT RESOLUTION
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ATASCADERO APPROVING AND AUTHORIZING EXECUTION OF A
REMITTANCE FUNDING AGREEMENT BETWEEN THE CITY OF
ATASCADERO AND THE ATASCADERO COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PURSUANT TO
HEALTH AND SAFETY CODE SECTION 34194.2
WHEREAS,pursuant to the California Community Redevelopment Law(Health and Safety Code
Sections 33000, et seq.) ("CRL"), the City Council ("City Council") of the City of Atascadero ("City")
created the Atascadero Community Redevelopment Agency ("Agency") to serve as the redevelopment
agency within the City; and
WHEREAS, the Agency is carrying out the Redevelopment Plan(s) ("Redevelopment Plan(s)")
for the Atascadero Redevelopment Project(s) consisting of certain areas within the City ("Project
Area(s)"); and
WHEREAS, as part of the 2011-12 State budget bill, the California Legislature enacted, and the
Governor signed: (i)ABX1 26, which prohibits agencies from taking numerous actions, effective
immediately and purportedly retroactively, and additionally provides that agencies are deemed to be
dissolved as of October 1, 2011; and (ii)ABX1 27, which provides that agencies do not have to cease
activities and do not have to dissolve, if the community creating the redevelopment agency enacts an
ordinance agreeing to comply with the alternative voluntary redevelopment program described in
Section 2 of ABX1 27 adding Part 1.9(commencing with section 34192) of Division 24 of the Health and
Safety Code(the"Alternative Redevelopment Program"); and
WHEREAS, on August 9., 2011, the City Council adopted Urgency Ordinance No. 556 and also
held a first reading of regular Ordinance No. 557 with a second reading and adoption on September 13,
2011, 2011, determining that the City would comply with the Alternative Redevelopment Program,
subject to certain terms and conditions, and has notified the State Department of Finance, the State
Controller and the San Luis Obispo County Auditor-Controller of such determination; and
WHEREAS, the Alternative Redevelopment Program requires the City to remit specific annual
payments to the county auditor-controller("City Remittance"); and
WHEREAS, pursuant to Section 34194.2 of the CRL, the City may enter into an agreement with
the Agency, whereby the Agency will transfer a portion of its tax increment to the City in a particular
fiscal year, in an amount not to exceed the amount of the City Remittance for such fiscal year, for the
purpose of financing activities within the Project Area(s)related to the Agency's goals; and
WHEREAS, a Petition for Writ of Mandate was filed in the Supreme Court of the State of
California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case
No. 5194861), challenging the constitutionality of ABX1 26 and ABX1 27 on behalf of cities, counties
and redevelopment agencies and requesting a stay of enforcement; and
WHEREAS, on August 11, 2011, the Supreme Court issued a partial stay on the effectiveness of
ABX1 26 and ABX1 27 until the Court can rule on the constitutionality of the two bills, which stay was
further modified by the Court on August 17,2011 (collectively,the"Stay"); and
}
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 2
WHEREAS, the Stay is unclear as to what actions an agency or city should be taking during
pendency of the Stay and, therefore, notwithstanding the pending litigation and the Stay, City adopted
Ordinances No.556 and 557 agreeing to comply with the Alternative Redevelopment Program, subject to
certain terms and conditions, and City and Agency wish to enter into a remittance agreement pursuant to
Section 34194.2 of the CRL in order to enable the City to make the annual City Remittance payments
required by ABX1 27 and enable the Agency to continue its activities necessary to carry out the goals and
objectives of the Plan, in the event ABX1 26 and ABX1 27 are upheld and the Stay is lifted;
NOW, THEREFORE,THE CITY COUNCIL OF THE CITY OF ATASCADERO DOES HEREBY
RESOLVE AS FOLLOWS:
1. The City Council hereby approves the Remittance Funding Agreement, substantially in the form
attached hereto as Exhibit A("Agreement"), and hereby authorizes and directs the City Manager to
execute the Agreement on behalf of the City, subject to such technical or clarifying revisions as are
reasonably determined necessary by the City Manager and approved by the City Attorney. The City
Council hereby further authorizes and directs the City Manager to take all actions and execute all
documents as necessary or appropriate to carry out the Agreement.
2. This resolution shall take effect immediately upon adoption.
}
ITEM NUMBER: C - 2
DATE: 09/27/11
Attachment 2
PASSED AND ADOPTED by the City Council of the City of Atascadero on the 27'h day of
September 2011,by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
CITY OF ATASCADERO
Tom O'Malley,Mayor
ATTEST:
Marcia McClure Torgerson, City Clerk
APPROVED AS TO FORM:
Brian A. Pierik, City Attorney
}
ITEM NUMBER: C - 3
DATE: 09/27/11
{ f
1918
Atascadero City Council
Staff Report — Public Works Department
Storm Water Regulations Update — NPDES Phase II
RECOMMENDATION:
City Council receive information on the latest developments in State stormwater
regulations, and the new NPDES Phase II provisions being considered by the State
Water Resources Control Board.
DISCUSSION:
The State Water Resources Control Board (State Water Board) has proposed far-
reaching and expensive requirements for an updated statewide municipal separate
storm sewer system (MS4) permit. This permit would impose extensive new regulations
on all future City construction projects and operations activities that far surpass what the
Federal government requires from cities under the Federal Clean Water Act. If
implemented, the draft permit would drain hundreds of thousands of dollars (perhaps
millions) in new mandated activities diverting funding from vital City functions without
demonstrating a proportionate benefit to the public or the environment.
Agencies throughout the State are opposing these proposed regulations, including:
• California State Association of Counties (CSAC)
• League of California Cities
• Regional Council of Rural Counties
Staff will update the City Council on recent City efforts to oppose the proposed
regulations, which have included:
• Membership in the Statewide Stormwater Coalition (48 public entities and
agencies) — See attached SSC Comment Letter
• Submission of Comment Letter to State Water Resources Control Board (see
attached)
• Actively involved in SLO County Storm Water Technical Advisory Committee
ITEM NUMBER: C - 3
DATE: 09/27/11
FISCAL IMPACT:
The new regulations have the potential to increase City General Fund expenditures by
hundreds of thousands of dollars each year in additional testing, monitoring, inspection,
enforcement, housekeeping and reporting duties to increase the control over
stormwater discharges of all types.
ATTACHMENTS:
1. City Response Letter dated August 19, 2011 .
2. Statewide Stormwater Coalition response letter dated September 8, 2011 .
3. CSAC/League of California Cities/RCRC response letter dated August 22, 2011 .
ITEM NUMBER: C - 3
DATE: 09/27/11
ATTACHMENT 1
CITY OF ATASCADERO
■ rt n e tip,,;
„„ ,a,;q PUBLIC WORKS DEPARTMENT
6907 EL CANIINO REAL,ATASC ADERO, CA 93421
.� Telephone(S05)461-5000
August 19. 2011
Ms. Jeanine Tov.nsend. Clerk to the Board
State Water Resources Control Board
P.O. Box 100. Sacramento, CA 95812-2000
Comment Letter— Phase II Small MS4 General Permit
Dear fids. To:.nsend.
The City of Atascadero has revie�,.ed the Draft Phase II Small MS4 General Permit (Draft
Permit.) The Draft Permit's minimum requirements have been expanded and ne.% control
measures have been added. The City believes that that it %All be unable to maintain
compliance -kith the Draft Permit's requirements because of a fundamental lack of human
and financial resources. In addition. the Draft Permit contains nev.,unfunded mandates that
the City cannot possibly afford. Therefore, the City has the following recommendations:
• Eliminate all nev, control measures from the Draft Permit until such time the economy
and local budgets recover to 2005 levels.
• Eliminate all unfunded mandates from the permit.
• Eliminate n&.,., requirements for the implementation of a nev., industrial commercial
runoff control program.
• Clarify that local agencies that are part of the Central Coast Regional Water Quality
Control Boards Joint Effort for hydromodification Control are exempted from all
hydromodification control requirements.
• Eliminate all nev, requirements that are above and beyond the six minimum control
measures as recommended by the United States Environmental Protection Agency.
The City of Atascadero (City) has :worked diligently to implement our current storm :,ater
program (Program) since adoption by the Central Coast Regional Water Quality Control
Board (Central Coast Water Board) in 2008. The City has ,.orked hard to implement our
Program in a cost efficient manner that produces positive. real ,vorld results. The City has
been successful to date. but it is clear that the State Board's Draft Permit .•,ill significantly
deter the City's present efforts. The City has evaluated the Draft Permit and does not
foresee ho%v the City could maintain compliance ::pith the expanded requirements or pay for
implementation. The Draft Permit %vill significantly escalate compliance costs and staff
,.vorkload .%hile providing no funding for implementation. In addition. the proposed permit is
loaded :vith unfunded mandates. transfers responsibilities from the State to the local level
and contains nev., hydromodification control requirements that conflict vith Central Coast
Water Board requirements. Lastly. the Draft Permit's ne>:, requirements are above and
beyond ,%,hat is recommended or required by the United States Environmental Protection
Agency (USEPA.)
ITEM NUMBER: C - 3
DATE: 09/27/11
Ms. To,•.nsend
September 8. 2011
Phase II Small NIS4 General Permit
The State Board's draft permit comes at a time .hen City staff have agreed to pay more
to,.-ards their retirement. have been laid off, have forgone raises over that last three years
and have had pay reductions to help balance the City budget. The City currently uses
S700.000 of reserves and $300.000 of staff savings to balance the City budget each year.
Therefore. the City currently only funds minimum service levels in order to make its
reserves last these difficult economic times. Ho: ever. our reserves are finite and the Draft
Permit,.°:ill have a major negative impact on them.
City staff estimates that the draft permit :,,ill require three fulltime persons and
approximately 5300.000 - $500.000 per year for implementation because of the increased
evaluation, monitoring. inspection. reporting and capital project requirements. The City's
current storm .,ater budget is S44.300 for the next t,-,o years. The Draft Permit ,.,ill force the
City to choose bet.veen basic public safety spending or regulatory compliance. The City
does not foresee a -,•ray to pay for these requirements other than using already scarce public
safety funds. This v,vould include shifting police and fire positions to the storm,.�ater program
and eliminating funding for a number of police and fire programs. Therefore, the City
recommends that all ne- : control measures be eliminated from the draft permit until such
time the economy and local budgets recover to 2005 levels.
The City is troubled by the sheer number of unfunded mandates contained in the Draft
Permit. The City has attempted to determine all of the unfunded mandates that are
contained vJthin the Draft Permit. ho%vever. more ,rill likely be discovered. The list Belo,-.
outlines %":,hat the City believes are unfunded mandates in the Draft Permit. This list is not
all inclusive and .ve reserve our right to bring up additional unfunded mandates as they are
discovered.
• Section EA.d. Ensure Adequate Resources to Comply ,.,ith Order —The Draft Permit
contains financial reporting. staffing. operations and maintenance requirements.
• Section E.S. Public Outreach and Education Program — The Draft Permit contains
requirements to implement Community Based Social Marketing, effectiveness
assessments, industrial and commercial outreach and other requirements.'programs.
• Section E.9.g N1aintenance of Storm Drain System — The Draft Permit contains
requirements for monitoring. cleaning. reporting and ,vaste disposal.
• Section E.9.i Incorporation of Water Quality and Habitat Enhancement Features in
Flood Management Facilities — The Draft Permit contains requirements for
retrofitting of existing facilities.
• E.10 Trash Reduction Program — The Draft Permit contains requirements for
retrofitting drainage facilities in commercial/industrial zones.
• E.11 Industrial 'Commercial Facility Runoff Control Program - The Draft Permit
transfers State responsibility for the industrial and commercial storm'v.'ater
enforcement and regulation to the City.
• E.13. Receiving Water Monitoring - The Draft Permit contains storm.°:ater monitoring
requirements of outfalls and other areas.
• Nev., Total Pvlaximum Daily Load Requirements - The Draft Permit contains ne,.'
requirements for TN1DL implementation.
2
ITEM NUMBER: C - 3
DATE: 09/27/11
Ms. To%vnsend
September 8. 2011
Phase II Small MS4 General Permit
The City is unclear ,-.,hy the State Board is transferring responsibility for industrial
storm,vrater oversight from the State to the City. The State has issued a standalone
Industrial Storm:,rater Permit that applies to industrial sites throughout the State. The
State's permit ,vas promulgated to regulate industrial facilities discharge prior to the
discharge leaving those sites. The City believes it is the States responsibility to regulate
separate industrial and commercial facilities that have the potential to pollute surface and
ground'. ater. In addition, this requirement appears to be an unfunded mandate since the
State is not providing resources for implementation. Therefore. . e recommend that this
provision be removed from the permit.
The City is currently participating :•,1th the Central Coast Water Board as part of the Joint
Effort for Hydromodification Control (Joint Effort.) The Joint Effort participants and the
Central Coast Water Board are •,orking on developing hydromodification control
requirements that recognize each local agencies unique geophysical setting. The Draft
Permit contains prescriptive requirements that ,:ill require the City to duplicate our
hydromodification control efforts .,.,hich ..!ill ,waste precious City resources. We request that
the State Board ackno,,1edge the Joint Effort and relieve the City from compliance .ith the
State Board's Draft Permit requirements. Relief from the requirements could be predicated
on participation in the Joint Effort.
Lastly, the Draft Permit greatly expands the minimum control measures that are required by
the USEPA. The USEPA has %„,eighed in on expanded requirements and has included
guidance in Title 40 of the Code of Federal Regulations. Section 122.34(e)(2) recommends
that no additional requirements beyond the minimum control measures be implemented
until after the USEPA evaluates its existing program (sometime after December 10, 2012.)
The USEPA also strongly recommends that ne%v requirements should not be implemented
1.".1ithout the agreement of the local agency. The City certainly does not agree ,<.ith the need
for expanded requirements. We recommend that the State Water Board consider the
USEPA guidance and remove the additional requirements until such time the USEPA has
evaluated the Storm-.eater Permit requirements.
The City appreciates the opportunity to provide comments to the State Water Board on this
very important issue. Please do not hesitate to call should you have any questions or
require any clarification.
Sincerely.
Russell S. Thompson
Public V%/orks Director
ITEM NUMBER: C - 3
DATE: 09/27/11
ATTACHMENT 2
City of Atascadero
City of Auburn STATEWIDE STORMWATER COALITION
City of Carmel by the Sea
City of Ceres
City of Davis
City of Del Rey Oaks
City of Lincoln September 8, 2011
City of Lodi
City of Lompoc Jeanine Townsend
City of Marina Clerk to the Board
City of Monterey State Water Resources Control Board
City of Morro Bay P.O. Box 100
City of Napa Sacramento, CA 95812-2000
City of Newman
City of Pacific Grove RE: COMMENT LETTER — DRAFT PHASE II SMALL MS4
City of Paso Robles GENERAL PERMIT
City of Patterson
City of Pismo Beach Dear Ms. Townsend:
City of Placerville
City of Riverbank The members of the Statewide Stormwater Coalition submit the
City of Rocklin following comments on the State Water Resources Control
City of Roseville Board's("Board") Draft Phase 11 Small Municipal Separate Storm
City of San Luis Obispo Sewer Systems(MS4s) General Permit("draft Permit"). The draft
City of Sand City Permit was released for public review and comment on June 7,
City of Santa Maria 2011.
City of Seaside
City of Sonoma Forty-eight public entities and public agency interest groups
City of Tracy throughout California have joined together as the Statewide
City of Watsonville Stormwater Coalition ("Coalition") to review and comment on the
City of Woodland draft Permit. The Coalition is supportive of efforts to improve
City of Yuba City and maintain water quality in California. Our goal is to partner
Town of Loomis with the Board to develop an effective and workable Phase Il
Town of Truckee
County of Butte Stormwater Permit that will allow Coalition members to
County of Monterey comply with and continue to advance our common objective
County of Placer of clean water.
County of San Bernardino
County of San Luis We are gravely concerned that MS4s and businesses cannot
Obispo afford to comply with the draft Permit. Many provisions of the draft
County of Sonoma Permit are neither effective nor workable. This letter details these
County of Santa Cruz Coalition concerns. A legal opinion on the draft Permit from Best
County of Shasta Best& Krieger is also provided as Attachment"A". Coalition
County of Stanistaus members will provide detailed jurisdiction-specific issues in
County of Yolo separate comment letters.
California Chapters of the
American Public Works The Coalition supports the comments sent separately Association pp p y b y:
California State
Association of Counties . California State Association of Counties. League of
League of California Cities California Cities and the Regional Council of Rural Counties
Regional Councll of Rural . California Stormwater Quality Association
Counties
Shasta County Water • Mayors of Monterey County
Agency
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 6,2011
• Monterey County Hospitality Association
• Monterey Regional Stormwater Program
• Napa Chamber of Commerce
• Placer Regional Stormwater Coordination Group
The Coalition has not had the opportunity to review all of its members' comments.
Omission of any Coalition member letters in the listing above in no way is meant to indicate
a lack of support for their individual comment letter(s).
The Coalition's number one concern: COST.
The draft Permit imposes substantial and unjustifiable new costs on permittees and
businesses at a time of widespread economic distress.
The draft Permit contains significant new requirements which are not included in the
Federal Clean Water Act's rules for small MS4s. Most Coalition members estimate their
costs to comply with the draft Permit will increase by more than three hundred
percent. Statements from Coalition members detailing anticipated impacts of the draft
Permit upon their agency are provided in Attachment"B".
MS4s will be forced to hire consultants and new staff to comply with the draft Permit. Many
will have to purchase costly equipment such as Vactor-type sewer maintenance trucks.
This new State demand for local agency spending comes at the same time local
governments are implementing furloughs and employee layoffs of municipal staff,
including police officers and firefighters, because they lack funds to pay salaries. Local
governments are also struggling to maintain existing infrastructure and equipment because
of declining revenue. Coalition members cannot afford to comply with the draft Permit.
Public entities have no practical way to raise funds to meet these costs.
Property and sales tax revenues have plummeted in recent years leaving public
agencies struggling to fund core, or in some instances, basic services. Theoretically,
public agencies can collect revenue through taxes, reimbursements or fees. Practically,
however, they are unlikely to obtain funds through these means due to the requirements
established in Propositions 218 and 26. It is nearly impossible to impose new or
increased taxes or property-based fees as the State Constitution requires majority or
super-majority vote of the people to approve any new taxes or fees. To make matters
worse, recent State actions aim to take tax-type funds away from local governments with
laws like Assembly Bills X1 26 and X1 27 (redevelopment fund raids).
Coalition members can have no reasonable expectation the State will agree to reimburse us
for imposed programs that are unfunded state mandates.
The State has strongly opposed local government claims to reimbursement for new
stormwater unfunded state mandates such as those advanced by the co-permittees on the
Phase I Permits issued in San Diego and Los Angeles Counties. Attachment "A" discusses
these practical barriers in detail.
Page 2
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 8,2011
Local businesses can't afford the cost to comply with the draft Permit..
The draft Permit would require existing businesses, industries and property owners
to make costly changes. These valuable community members are facing hard economic
times. Many have already cut back their operations and laid off employees in an effort to
survive.
The draft Permit would further burden a broad spectrum of established large and small
businesses with costly new requirements that are not linked to a proven need. New
requirements would include structural trash capture control retrofits and on-site
modifications for run-off retention. These and other overly broad and highly prescriptive
requirements will feed already existing economic distress and likely lead to litigation.
Worse, these burdensome regulations may cause businesses to close or leave California.
At a minimum, the State should delete retrofitting requirements from the draft Permit.
Redundancy with existing business regulatory programs should be examined and
eliminated and the scope of targeted businesses should be prioritized and significantly
scaled back.
The Coalition's number two concern: THE DRAFT PERMIT IS NOT FEASIBLE OR
REASONABLE.
The draft Permit includes excessive data gathering and unnecessary reporting
requirements.
An effective stormwater program spends money where it can best achieve the goal of
improving water quality. The draft Permit heavily emphasizes detailed documentation and
reporting. Coalition members have learned these and many requirements of the draft
Permit have little or no discernible connection to water quality outcomes! Diverting
scarce resources into unnecessary activities is an inappropriate use of the public monies we
are entrusted to use wisely. The Coalition has prepared Attachment "C," a matrix which
documents the wasteful provisions of the draft Permit.
The draft Permit is inconsistent and redundant.
Permittees need clarity and consistency in regulatory requirements. The draft Permit
contains numerous internal inconsistencies. incomplete information, ambiguities and
redundancies with existing regulatory programs. Clear, unambiguous language is an
absolute necessity in light of the recent Ninth Circuit Court case, Natural Resources
Defense Council, Inc. v. County of Los Angeles. The elimination of redundant programing
is necessary to use our limited resources as efficiently and effectively as possible to achieve
stormwater quality improvements. These problems, if they remain, will lead to confusion and
uncertainty about how to comply. They will render the final regulation unworkable.
Compliance challenges will require limited program resources to be spent on
justifying actions and fending off enforcement fines and third-party law suits.
Attachment"A" and comments from the California Stormwater Quality Association catalog
these problems in detail.
Page 3
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 8,2011
The draft Permit ignores basic fairness principles.
The draft Permit fails fairness tests. It substantially raises costs, ignores economic and
legal realities, and regulates inconsistently by failing to account for the vast difference in
circumstances between MS4s. It wastes precious funds on documentation and reporting. it
ignores the"grandfather' principle that regulators should leave existing legally operating
businesses alone. It lacks scientific justification for change. This point is further elaborated
in the CASQA comment letter.
The draft Permit requires local entities to provide front-line enforcement of the
State's industrial and construction stormwater permit requirements while the State is
collecting and retaining fees for this work. Local entities are willing to fill this role, or
partner with the State, if the State is willing to pay for it. A portion of the permit fees paid to
the State through the Construction General Permit and the Industrial General Permit which
is intended to fund inspections should be provided to local entities being regulated to do that
work.
The Coalition's request: A COMPLETE RE-DRAFT.
Coalition members want to comply and support good regulatory programs to clean up
stormwater.
Coalition members have worked hard to develop their stormwater programs and want
to continue to comply with federal regulations. Many states, including Maryland, North
Carolina and New Jersey, have good regulatory programs that actually clean up
stormwater. These states support their programs through proper funding such as a
stormwater utility. Coalition members support a smart, well-funded stormwater program
that wilt work in California. We want a program that allows us to comply: a program that
does not set us up for failure.
The Coalition members request a complete re-draft: one that includes stakeholder input
and a better public review process.
Coalition members request the Board prepare a new draft permit using a different
process. This time, the Board should invite stakeholders (MS4s and other regulated
entities, public interest groups, businesspeople, and enforcement agencies)to help with the
redraft, and should incorporate ample time for public review. The new version should also
be drafted to allow for a strict interpretation of its contents, as noted in the recent Ninth
Circuit Court case, Natural Resources Defense Council Inc. V. County of Los Angeles.
Coalition members are very willing to work with the Board to help examine
stormwater program costs, prioritize program elements and develop cost-effective
programs that protect water quality.
The Coalition members request a complete re-draft: one that considers cost implications to
permittees and to the business community.
Page 4
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 8,2011
The Board should prepare a new draft of the permit that considers the fiscal
implications to all entities regulated under the draft Permit including the business
community. A cost-benefit analysis of implementation requirements and a business case
evaluation should be prepared for any retrofitting requirements.
The Coalition members request a complete re-draft: one that includes practical solutions to
achieving stormwater compliance.
Coalition members understand their responsibility and role in achieving federal and
state goals for clean water. The Board must understand its responsibility to
establish regulations that are achievable. The draft Perrnit should adhere to the federal
Six Minimum Control Measures and find creative solutions for defining and prioritizing water
quality issues within the state.
Creative solutions we recommend the Board pursue include:
• Allow MS4s that are over 50,000 in population to replace dry weather outfall
monitoring with a Stormwater Wise House Call program as part of the Illicit
Discharge Detection and Elimination Element. MS4s would target high pollutant
potential discharges based upon information learned during the first permit term to
assist them in developing a simplified Facility Source Control Plan. This program
would be on-par-with Water Wise House Calls performed by water agency staff to
assist customers with water conservation efforts. The permit should also allow for
the possibility that MS4s could coordinate with their local water and wastewater
agencies to jointly conduct these type of programs (for example when water agency
staff conduct a Water Wise House Call or when a wastewater agency conducts a
Fats Oils and Grease inspection those staff could be trained to also evaluate and
educate customers on source control best management practices).
• Allow MS4s that are under 50,000 in population to replace dry weather outfall
monitoring with enhanced public outreach targeted to high pollutant potential sectors
of the business community as part of the Illicit Discharge Detection and Elimination
Element.
• Where MS4s work to develop agreements with cooperating agencies to perform
program elements, allot those MS4s additional time to comply. The additional time
is necessary in order to establish interagency agreements and develop and
implement training programs to ensure successful implementation.
• Move the responsibility of monitoring the quality of waters of the state from MS4s to
the State's Surface Water Ambient Monitoring Program (SWAMP). Provide
opportunity for MS4s to pay a to-be-agreed-upon amount above current annual fees
to support the SWAMP.
• Allow MS4s to continue to implement current stormwater programs consistent with
the federal Six Minimum Control Measures provided SWAMP monitoring does not
indicate demonstrable adverse stormwater impact. Where the SWAMP identifies
Page S
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 8,2011
waters of the state that are degrading and identifies the specific pollutants of concern
causing the degradation, then the local MS4s should develop programs to locate and
correct possible sources of the pollutants found by the State to be a problem.
• Work with Department of Consumer Affairs to include stormwater awareness
requirements in contractor, engineer, architect, landscape architect and geologist
licensing exams.
• Provide more program implementation tools for MS4s. For example, create a
website, or data base with a listing of all what the State identifies as successful
program elements (Public Education and Outreach, Public Involvement, Municipal
Operations and interagency, regional collaborative programs). This would allow
other MS4s to see what successful program elements look like regionally and
statewide; and then recreate or use those resources within their own jurisdiction.
This will be especially important for newly designated MS4s.
• Revise the Storm Water Multiple Application and Reporting Tracking System
(SMARTS) to allow MS4s to utilize that system in lieu of creating their own
databases and tracking systems. Data could be input"real-time". This would allow
for statewide consistency of information. State and Regional Board staff could run
their own reports and audits from SMARTS directly and not have to wait for MS4s to
submit costly annual reports that, from our experience, often are never reviewed by
enforcement staff.
In closing, and as indicated by our comments, the Coalition has significant concerns. We
request the Board craft an effective and workable permit that will allow MS4s to comply. We
reiterate our common objective and our interest in working with Board staff to improve water
quality and on creating a permit that will work for all of California's small MS4s and the
business community. Thank you for the opportunity to comment.
Sincerely,
Russel S. Thompson. PE John Goss William Marshall
Public Works Director Interim City Administrator City Engineer, Interim
City of Atascadero City of Carmel by the Sea City of Davis
All
Bernie Schroeder Chris Vierra Jerry Edelen
Director of Public Works Mayor Mayor
City of Auburn City of Ceres City of Del Rey Oaks
Page 6
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 8,2011
Jim Estep Jan Marx
City Manager Thomas Frutchey Mayor
C.ty of Lincoln City Manager City of San Luis Obispo
City of Pacific Grove
Konradt Bartlam T^T Richard G.Simonitch
City Manager Matt Thompson City Engineer
City of Lodi City of Sand City
Wastewater Resource Manager
City of Paso Robles ! l
Brad Wilkie for Larry Lavagnino
Laurel Barcelona Rod B. Butler Mayor
City Administrator City Manager City of Santa Maria
City of Lompoc City or Patterson
i
�3 N
Ray Corpuz
Shelly Higginbotham City Manager
Anthony Altfeld Mayor City of Seaside
City Manager City of Pismo Beach
City of Marina
h/,..wD, �tgQQ SgQa Linda Kelly
Chuck Della Sala M Cleve Morris City Manager
Mayor City Manager City of Sonoma
City of Monterey City of Placerville
Brent Ives
JO Hightower Mayor
Andrea Lueker Development Services Director City of Tracy
City Manager City of Riverbank
City of Morro Bay
Robert Ketley
George Magnuson Senior Utilities Engineer
Jill Techel Mayor City of Watsonville
Mayor y
City of Napa City of Rocklin
Garner R. Reynolds Pauline Roccucci Mark Deven
Director of Public Works Mayor City Manager
City of Newman City of Roseville City of Woodland
Page 7
ITEM NUMBER: C - 3
DATE: 09/27/11
SSC COMMENT LETTER
September 8,2011
Steve Jepsen Matt Rexroad
City Manager
City of Yuba City Granville 'Bow"Bowman Chair
Director of Pubt;c Works Yolo County Board of
County of San Bernardino Supervisors
County of Yolo
AA"f h"t—
Perry Beck Adam Hill,Chairman
Town Manager San Luis Obispo County Board Doug Fredericks
Town of Loomis of Supervisors Advocacy Chair
County of San Luis Obispo California Chapters of the
American Public Works
Association
Tony Lashbrook John Presleigh Karen Keene
Town Manager Director of Public Works Senior Legislative
Town of Truckee County of Santa Cruz Representative
California State Association of
Counties
Mike Crump Patrick J.Minturn
Director of Public Works Director Kyra Emanuels Ross
County of Butte Department Public Works Legislative Representative
County of Shasta League of California Cities
;4A 1� a4ffl� 44�44�
Thomas R, Harty for Reg Cullen Staci Heaton
Yazdan Emrani Senor Engineer Regulatory Affairs Advocate
Director of Public Works County of Sonoma Regional Council of Rural
County of Monterey Counties
all. Patrick J Minturn
Ken Grehm Matt Machado Chief Engineer
Director of Public Works Director of Public Works Snasta County Water Agency
County of Placer County of Stanislaus
Attachment A—Letter from Best Best& Krieger
Attachment B—Cost Impacts of the Draft Permit
Attachment C—Water Quality Matrix
CC:
Senator Thomas Berryhill
State Senator Sam Blakeslee
Senator Anthony Cannella
State Senator Noreen Evans
Senator Tony Strickland
State Senator Doug LaMalfa
- - Page 8 - -
ITEM NUMBER: C - 3
DATE: 09/27/11
ATTACHMENT 3
LEAGU E p0
1110""c Q"C
EN0:1 OF CALIFORNIA 'hWecontits.
CITIES
August 22, 201 1
Charles R. Hoppin, Chair
State Water Resources Control Board
P.O. Box 100, Sacramento, CA 95812-2000
Re: Comment Letter- Phase II Small MS4 General Permit
Dear Chair Hoppin:
On behalf of the California State Association of Counties (CSAC), the Regional Council of Rural
Counties (RCRC), and the League of California Cities (LCC), we appreciate the opportunity to
comment on the State Water Resources Control Board's (Board) Phase II Small 111S4 General
Permit (draft Phase II pernmit).
Collectively, our organizations represent all of Californias 483 cities and 58 counties_ As
representatives of local government, CSAC. RCRC and the LCC are in the somewhat unique
position of viewing stormwater regulation from two perspectives—first, as enforcers of local
water quality objectives and. secondly, as regulated dischargers. Cities and counties are
committed to helping the state achieve its water quality goals. and we want to work with the
state to adopt stormwater regulations that balance stormwater quality objectives with the
operational and economic realities of stormwater management in the public and private sectors.
We appreciate the Board's extension of the initial comment period as this draft represents a
significant departure from the previous version of the Phase 11 permit. Our organizations have
serious concerns with a number of the new requirements included in the draft Phase II permit,
and the overall fiscal impact this draft poses on the Phase II community.
Our overarching concern is related to the associated cost implications of the new permit. We
understand and support the need to move forward with an updated permit. However, we are
seriously concerned about the additional requirements included in this draft that go above and
beyond the previous version, including but not limited to the proposed inventory'tracking
requirements, trash reduction provisions and the public outreach component. We are also
apprehensive about the feasibility of the proposed draft because it is extremely inflexible.
preventing municipalities from structuring a program that meets their individual needs.
Significant additional funds and staffing will be needed to implement these new requirements.
Thus, the cost of implementing the new permit presents a significant burden to local
governments at a time when nearly every revenue stream (property tax. sales tax. and state
funding) have fallen precipitously, and almost every city and county has already implemented or
is strongly considering deep cuts and widespread layoffs. In addition, cities and counties must
comply with Proposition 218, which requires local governments to meet the two-thirds voter
approval requirement for increasing property-related fees. This presents a significant challenge
particularly in our current fiscal climate. where voter tolerance for increased fees is close to
zero. As a result. local governments will have to reach into their general funds and decide which
core services to cut in order to implement the new storm water permit. For this reason, we
believe the draft permit constitutes an unfunded mandate_
ITEM NUMBER: C - 3
DATE: 09/27/11
In addition, the Board has indicated that stormwater program fees will increase for the 2011-12
fiscal year by approximately 34.9 percent. almost a third of which is attributable to increases
needed to offset a projected revenue shortfall at the Board. Fee increases coupled with costs
associated with implementing the draft Phase II permit and our limited ability to raise revenue
for stormwater projects represent an untenable burden for cities and counties.
Finally, the proposed draft is extremely prescriptive compared to the current version of the
permit. Each municipality has its own structure and storm water program needs. Many
municipalities have crafted extremely successful storm water programs under the current
permit, and are seeing good results from their B1`1Ps and water quality improvement efforts. This
draft prevents municipalities from customizing their programs, and will even interfere with some
of the programs currently in place due to the costs of implementing new requirements.
It is for these reasons that we respectfully urge the Board to conduct a comprehensive cost
benefit analysis on the draft permit that includes feedback from regulated local governments
and business. That costs analysis will serve as a valuable tool to help the Board evaluate and
prioritize permit provisions that meet the highest water quality objectives using limited local
general fund resources wisely and with the highest benefit. We also recommend that the Board
direct staff to work with the regulated municipalities to craft a permit that will be feasible and still
achieve significant water quality benefits.
Finally, we also endorse the technical comments submitted by the California Stormwater Quality
Association (CASQA)_ CASQA is comprised of stormwater quality management organizations
and individuals, and includes cities and counties.
Local governments are committed to working with the Board to create a better permit that will
achieve water quality benefits for all Californians. We thank you for your consideration of our
input in this matter_ Please feel free to contact us if you have any questions.
Sincerely.
Karen Keene Staci Heaton
CSAC Senior Legislative Representative RCRC Regulatory Affairs Advocate
Kyra Ross
LCC Legislative Representative