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HomeMy WebLinkAbout2009-06-08 City Council Agenda Packet 1 06/08/09 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Agenda posted according to PAMC Section 2.04.070. A binder containing supporting materials is available in the Council Chambers on the Friday preceding the meeting. Special Meeting Council Chambers June 08, 2009 6:00 PM ROLL CALL CLOSED SESSION This item may occur during the recess or after the Regular Meeting. Public Comments: Members of the public may speak to the Closed Session item(s); three minutes per speaker. 1. CONFERENCE WITH LABOR NEGOTIATOR City Manager and his designees pursuant to Merit Rules and Regulations (James Keene, Kelly Morariu, Russ Carlsen, Lalo Perez, Sandra Blanch, Marcie Scott, Darrell Murray) Employee Organization: Local 521, Service Employees International Union (SEIU) Authority: Government Code Section 54957.6(a) 7:00 PM or as soon as possible thereafter STUDY SESSION 2. Status Update on the San Francisquito Creek Joint Powers Authority’s Initial Capital Project ATTACHMENT SPECIAL ORDERS OF THE DAY 06/08/09 2 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. 3. Adoption of a Resolution Expressing Appreciation to Gary Weinreich Upon His Retirement ATTACHMENT 4. Adoption of a Resolution Expressing Appreciation to Luz Cortes Upon Her Retirement ATTACHMENT CITY MANAGER COMMENTS ORAL COMMUNICATIONS Members of the public may speak to any item not on the agenda; three minutes per speaker. Council reserves the right to limit the duration or Oral Communications period to 30 minutes. CONSENT CALENDAR Items will be voted on in one motion unless removed from the calendar by two Council Members. 5. Approval of Amendment No. One to Agreement Between the San Francisquito Creek Joint Powers Authority and its Member Agencies with Respect to Roles and Responsibilities Regarding the Army Corps of Engineers’ Feasibility Cost Share Agreement CMR 268:09 and ATTACHMENTS 6. Approval of a Contract with Palo Alto Unified School District (PAUSD) in which the City of Palo Alto will provide Fiscal Services for the PAUSD Summer Enrichment Programs and Provide a Collaborative After- School Program CMR 265:09 and ATTACHMENTS AGENDA CHANGES, ADDITIONS, AND DELETIONS 06/08/09 3 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. HEARINGS REQUIRED BY LAW: Applications and/or appellants may have up to ten minutes at the outset of the public discussion to make their remarks and put up to three minutes for concluding remarks after other members of the public have spoken. OTHER AGENDA ITEMS: Public comments or testimony on agenda items other than Oral Communications shall be limited to a maximum of three minutes per speaker. PUBLIC HEARINGS 7. Public Hearing: (CMR: 280:09) Discussion of the Finance Committee Recommendation of the Adoption of the 2010 Budget, and In-Concept Budget for Fiscal Year 2011 and Adoption of a Budget Amendment Ordinance, including 1) Exhibit A – City Manager’s Fiscal Years 2010 and 2011 Proposed Budget; 2) Exhibit B – Amendments to the City Manager’s Fiscal Years 2010 and 2011 Proposed Budget; 3) Exhibit C – Fiscal Year Proposed Municipal Fee Schedule; 4) Exhibit D – Revised Pages in the Fiscal Years 2010 and 2011 Table of Organization; 5) Exhibit E – Amendments to the Fiscal Year 2010 Proposed Municipal Fee Schedule (a) The Finance Committee Recommends that the City Council Adopt the Fiscal Year 2010 Budget and Adopt in-concept the Fiscal Year 2011 Budget, Pertaining to the Police and Fire Department Budgets as Modified and the Portions of the CIP Relating to Stanford and the Ordinance Portions Related Thereto (b) The Finance Committee Recommends that the City Council Adopt Sections of the Community Services and Planning and Community Environment Department Fiscal Year 2010 Budgets and Adopt in- concept the Fiscal Year 2011 Budget, as Modified, Pertaining to Nonprofit Entities, Including Community Services Block Grant (CDBG) and Human Services Resource Allocation Process (HSRAP) and the Ordinance Portions Related Thereto (c) The Finance Committee Recommends the City Council Adopt the Remaining Items in the Fiscal Year 2010 Budget and Adopt in-concept the Fiscal Year 2011 Budget, as Modified and the Ordinance Portions and Resolutions Related Thereto Adoption of a Resolution Amending the Compensation Plan for Management and Professional Personnel and Council Appointees Adopted by Resolution No. 8844 to Change the Title of One Classification 06/08/09 4 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Adoption of a Resolution Amending the Compensation Plan for Classified Personnel (SEIU) Adopted by Resolution No. 8658 to Add Four Classifications and Change the Compensation for Two Existing SEIU Classifications CMR 280:09 and ATTACHMENTS 8. Consider Assessment for California Avenue Area Parking Bonds – Plan G: Fiscal Year 2010; Adoption of a Resolution Confirming Engineer’s Report and Assessment Roll, California Avenue Parking Project No. 92- 13 (for Fiscal Year 2010) CMR 274:09 and ATTACHMENTS 9. Adoption of an Ordinance Amending Section 16.28.080 (Specific Exemptions) of Title 16 (Building Regulations) of the Palo Alto Municipal Code to Require Excavation and Grading Permits for Basements and Below-grade Parking Structures CMR 258:09 and ATTACHMENTS COUNCIL MATTERS 10. Approval of Agreement with Sherry L. Lund Associates in an Amount of $27,250 for Completion of Annual Council Appointed Officer Performance Reviews ATTACHMENTS 11. Review and Consideration of Response to the Independent Police Auditor (IAP) Report on the Children’s Theatre Police Investigation COUNCIL COMMENTS, ANNOUNCEMENTS, AND REPORTS FROM CONFERENCES Members of the public may not speak to the item(s). 06/08/09 5 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. ADJOURNMENT Persons with disabilities who require auxiliary aids or services in using City facilities, services, or programs or who would like information on the City’s compliance with the Americans with Disabilities Act (ADA) of 1990, may contact 650-329-2550 (Voice) 24 hours in advance. TO: FROM: DATE: City of Palo Alto Memorandum HONORABLE CITY COUNCIL CITY MANAGER JUNE 8, 2009 REPORT TYPE: STUDY SESSION SUBJECT: Status Update on the San Francisquito Creek Joint Powers Authority's Initial Capital Project The San Francisquito Creek Joint Powers Authority (JPA) is working cooperatively with the US Army Corps of Engineers on a comprehensive flood damage reduction and ecosystem restoration project for San Francisquito Creek. This is a long-term project that will require several more years of study and design, as well as substantial amounts of federal and local funding. In an effort to provide some tangible benefits in the near future, the JP A has been pursuing the implementation of an Initial Capital Project that would provide incrementally improved flood protection to the communities in the watershed. The JP A has retained engineering consultant Philip Williams & Associates to assess the· feasibility of several Initial Capital Project alternatives for San Francisquito Creek. Specifically, the consultant was asked to study the feasibility of two types of potential projects: 1) providing increased flow capacity in the reach of creek downstream of Highway 101, and 2) detaining storm water runoff in the upper watershed in order to reduce flood flows in downstream reaches. The consultant presented their preliminary findings to the JP A Board at their May 28 meeting (see attached summary). This presentation was the beginning of a two-month process of outreach and discussion with the governing bodies of the JPA member agencies, neighborhood groups, and the community at-large regarding potential Initial Capital Projects to be implemented by the JP A. At this evening's study session, JP A Executive Director Len Materman will be presenting the consultant's findings on the project alternatives, with particular emphasis on potential impacts to City of Palo Alto residents, businesses and City-owned properties. The doWnstream flood control options would potentially affect the Palo Alto· Golf Course and the City-owned Faber-Laumeister Tract north of San Francisquito Creek. The upstream detention scenarios are located on Stanford University lands. Status Update -San Francisquito' Creek June 8,2009 Page 2 The study session will be an opportunity for JP A staff to provide information to the Council on the potential Initial Capital Project alternatives and to solicit comments and feedback. After a series of meetings with other stakeholders, staff and the JP A Executive Director will return to Council on July 20 with a recommendation to proceed with a specific project alternative. On July 23, the JPA Board is scheduled to approve the issuance of a Request for Proposals for a design professional to conduct the design and environmental review of a defined Initial Capital Project. Ienl~flJ; SIDl-=-ancisqUito JPA's Initial;: Projects -c 'GLENN S. ROBERTS JAMES KEENE Director of Public Works City Manager Options for the San Francisquito JPA's Initial Capital Projects Project Schedule in 2009 May 28: Complete Technical Feasibility June-July: Community Outreach August: JPA submits application for Federal credit September: Engineering Design and Environmental Planning begins April 2011: Construction begins Build capacity to detain water upstream, increase flow under Highway 101, and either create a bypass channel through I ~ A~IT'®®lllID®lIDtt §81nn lFIT'<1llnn~ll.§(ljJIlllilU:® Cm~elk J[®nllllli :fiI'®WeIrnl AIlllItIlli®ll'ii1£y $.umtdl Jlli~ Memmil1leIT' Aggellll~fie~ R®ne§ 311lID4:ll Re§]pl®lID§nil1lnllnttiie§ Reg311IT'4:llnlIDg 1rllil!l:: AJrmmy C®ll]»§ off 1ElIDgJlJIDeeIrnl9lFe311~nbilliitty C®§D: SJln311Jr® AgJr®emmenntt This Agreement ("Agreement") is made and entered into as ()f January 25,2007, by and am()ng the SAN fRANCIS QUITO CREEK JOINT POWERS AUTHORITY, a CalifOl1:llajoilitt powers authQrity ("AuthQrity"), the SAN MATEO COUNTY FLOOD CONTROL DISTRICT, a special district Qfthe State QfCalifornia ("'San Mateo"), the SANTA CLARA V ALLEY WATER DISTRICT, a special district of the State of Cali forma ("Water District "), the CITY OF EAST PALO ALTO, a municipal corporati()n ("East PallO AltQ"), the CITY Of MENLO PARK, a municipal cQrporatiQn ("MenlQ Park"), and the CITY OF PALO ALTO, a CalifQrnia charter city ("'PallO AltQ"), cQllectively referred tQ as Parties lOr individually as Party_ RIECITAlS A. San FrancisquitQ Creek has a histQry QfflQQding the cQmmunities in and arQund East PallO Alt(), Menl() Park and Palo AltQ. The latest and the most danwging fl()od Qccurred in 1998. B. FQllQwing the flQQd Qf 1998, East PallO AltQ, MenlQ Park, PallO AltQ, San MateQ and Water District fQrmed the San FrancisquitQ Creek JQint PlOwers AuthQrity on May 18, 1999. These entities are fun members of the AuthQrity_ The AuthQrity was authQrized to represent its member agencies as the IQcal SPQnsor fQr a U.S. Army CQrps of Engineers' ("CQrps") flQQd damage reductiQn and ecQsystem restQratiQn project IOn May 23, 2002. C. The CQrps, wQrking with the Authority as the IQcal sponsQr, completed a reconnaissance study fQr San Francisquito Creek in 2005. reconnaissance study indicated a Federal Interest in developing a flQQd damage reductiQn and ecosystem restQratiQn prQject fQr San Francisquito Creek. D. Based on the recQnnaissance study and extensive discussiQns between the CQrps and the AuthQrity, IOn November 17,2005, a Feasibility ClOst Share Agreement ("FCSA") was entered intQ between the CQrps and the AuthQrity fQr a flood damage reductiQn and eCQsystem restQration prQject feasibility study of San FrancisquitQ Creek and adjacent tidal areas ("Study"). The CQrps, pursuant tQ the FCSA, has agreed to initiate a project tQ evaluate flQQd protectiQn and ecQsystem restQratiQn alternatives within the San Francisquito Creek Watershed and tidal areas as defined within, in Santa Clara and San MateQ CQunties. The FCSA and its associated PrQject Management Plan is attached as Exhibit A. E. The FCSA requires the Authority, as the prQject IQcal SPQnSQr, to contribute tQ the Corps, in cash lOr in-kind services, fifty percent(50%) Qfthe ClOst Qfthe Study, as described in the FCSA, as the IQcal share. The FCSA alsQ requires the AuthQrity tQ fund lOne hundred percent (100%) Qfthe ClOst Qf other studies as may be required but nQt identified as funded by the Corps 921111-2 1 in the FCSA, including but not limited to the environmental review that may be required by the California Environmental Quality Act ("CEQA"). F. San Mateo and Water District agreed to provide up to $1.5 million each ($3 million total) to fund the local share of the Study pursuant to the Agreement for Funding a Feasibility Study for San Francisquito Creek Among the San Francisquito Creek Joint Powers Authority, the San Mateo County Flood Control District and the Santa Clara Valley Water District ("Funding Agreement"), which details the amount, method and timing of financial contributions from San Mateo and Water District to be applied towards the cost of conducting the fluvial portion of the Study, and is attached as Exhibit B. G. East Palo Alto agreed by City Council action on November 15,2005 to provide up to $33,000 toward the local share of the Study for the particular purpose of including Tidal Option], as described in the FCSA, in the Study. H. Menlo Park agreed by City Council action on November 8, 2005 to provide up to $32,500 toward the local share of the Study for the particular purpose of including Tidal Option 1, as described in the FCSA, in the Study. I. The FCSA allows the Authority to credit staff time as in-kind services up to $592,800 toward the local share of the Study. J. The Joint Powers Agreement between the Parties authorizes the Authority to enter into contracts with its member agencies to perform any of the duties and responsibilities of the Authority. NOW, THEREFORE, in consideration of the foregoing recitals, and the terms and conditions in the sections contained herein below, the Parties agree, as follows: I. PROJECT DESCRIPTION AND MUTUAL OBJECTIVES A. Project Description The project is to conduct the Study as described in the Project Management Plan ("PMP") of the FCSA for a Flood Damage Reduction and Ecosystem Restoration ("FDRER") project for San Francisquito Creek and adjacent tidal areas. The Study will investigate the opportunities to reduce both fluvial (creek) and tidal flooding, which threaten public safety, and to restore ecosystem quality and function, where possible. The geographical area of the Study includes the entire watershed of San Francisquito Creek and tidal areas extending from the northernmost bay-shore point in Menlo Park to the southernmost bay-shore point in Palo Alto. The proposed area of the Study is shown on the map, which is attached as Exhibit C. The Study will also consider potential impacts to, and without- project conditions of, adjacent areas of influence that may not be contained within the proposed area ofthe Study. 921111-2 2 The Study is the second phase within the planning process of a Corps FDRER project. The Study will evaluate project alternatives in regard to cost, feasibility and environmental impacts. Significant elements of the Study include, but are not limited to, the following: 1. Environmental Documents: One element of the Study is the production of an Environmental Impact Statement ("ElS") in accordance with the National Environmental Policy Act ("NEPA".) The corresponding Environmental Impact Report, ("EIR"), required by CEQA, will be developed by the Parties at their own expense. The ElR is expected to use much of the same supporting material as the ElS and may in fact be nearly the same document. 2. Alternatives and. Engineering Evaluation: Various alternatives will be identified and scoped through suggestions and input from the Corps, the Authority and its member agencies, the public and other stakeholders. The Corps, with input from the staff of the Authority and its member agencies, will evaluate the feasibility of the alternatives with regards to engineering, costs, environmental impacts and other aspects important to the community. 3. Public Participation: The FDRER project is intended to result in flood damage reduction and ecosystem restoration within the San Francisquito Creek watershed, adjacent tidal and wetland areas, and their areas of influence. The Corps, the Authority and its member agencies have agreed that the community that lives within the watershed, tidal areas, and areas of influence must be involved in the development of the alternatives and the environmental documents, and that public outreach and participation is an important element of the Study. B. Mutual Objectives The Parties mutually agree to the following objectives of the Study: • Develop the Study to-best incorporate and address the concerns of the Authority and its member and associate member agencies, the public, and other stakeholders. • Develop a wide range of alternatives within the Study and strive to identify the alternative, or combination of alternatives, that provides the best flood reduction for the most people at the most reasonable cost. • Preserve and restore the natural environment of the creek corridor and tidal area as a habitable resource for wildlife. • Improve habitat for steelhead trout. • Explore opportunities for one or more trails, compatible with the riparian and marshy natural setting that will accommodate a variety of trail users, with appropriate routing of paths, points, overlooks, vegetation and screening. • Protect and restore riparian and aquatic habitat along the creek corridor. 921111-2 3 II. SPECIFIC PROVISIONS A. Purpose The Funding Agreement provides for the members of the Authority to enter into an implementation agreement with the Authority defining the roles and responsibilities of the members during the Study. This Agreement is the implementation agreement required by the Funding Agreement. The provisions of this Agreement shall supercede and control over any conflicting provisions in the Funding Agreement. B. Contributions Water District shall contribute $74,100 toward the local share of the Study for the particular purpose of including Tidal Option 2, as described in the FCSA, in the Study. Upon written request for full or partial payment of the local share for the Tidal Option 2, as'described in the FCSA, Water District shall deposit the requested amount of money in an escrow account managed by Authority. This contribution is in addition to Water District's contribution under the Funding Agreement. Water District shall not receive any credit or reimbursement for its financial contribution to the inclusion of Tidal Option 2 in the Study, nor shall East Palo Alto or Menlo Park receive any credit or reimbursement for their financial contributions to the inclusion of Tidal Option 1 in the Study, as described in Recitals G and H above. C. Cooperation in FCSA Implementation Each Party shall cooperate with and assist the Authority in the implementation of the FCSA, including providing any reports, studies, data or other documents and information prepared or held by a Party that may be relevant to the completion of the Study. No credit, reimbursement or other entitlement shall be provided to a Party for this type of general assistance. D. Management of FCSA and Study Except as specifically provided by this Agreement, the Authority, in its sole discretion, shall be responsible for the performance of the Authority's obligations under the FCSA related to conducting and overseeing the Study. The other Parties to this Agreement shall have no rights or obligations under the FCSA to conduct or oversee the Study, except as provided in this Agreement. San Mateo, Water District, East Palo Alto, Menlo Park and Palo Alto staffs are designated as members of Authority'S project management team ("Management Team") that will consult with and provide advice to the Authority'S Executive Director ("Director") on the implementation of the FCSA. The Parties shall provide appropriate representatives to the Management Team and participate in Management Team meetings and activities. E. Consensus Approval of Work Products The Director shall strive to obtain consensus for acceptance or approval of documents developed by the Corps or its consultants or actions regarding the Study from the Management Team. The individual Management Team members shall support the Management Team and the Director by providing timely review of documents and issues, and by providing information and material that promotes Management Team's work 921111·2 4 F. Local Outreach Plan The Authority shall develop a local public outreach plan to supplement the Corps' outreach plan for the Study. Public meetings related to the local public outreach plan and the Corps' outreach plan shall be supported by the member representatives of the Management Team. Support shall be rendered in the form of materials, venue, attendance, and/or presentations. Funding for the costs associated with the local outreach plan shall be secured by the Authority, outside of this Agreement, either as part of its annual operating budget or through additional financial contributions from the Authority's member agencies. III. GENERAL PROVISIONS A. Additional or Advance Funding or In-Kind Contributions Any funding for the Study in addition to what is stipulated within this Agreement or the Funding Agreement, or any funding advanced by any of the Parties for the purpose of conducting the Study at a pace greater than annual Congressional appropriations provide for, or any inwkind services or contributions rendered towards the Study on behalf of the Authority by any Party, shall be agreed to by an addendum or amendment to this Agreement as provided below. The source, timing, manner oftransaction, and administration of contributions for future credit or reimbursement for any additional or advanced funding or inwkind contribution shall be described in the addendum or amendment. An addendum to this Agreement may be proposed by any of the Parties. An addendum may be used only for additional or advance funding or inwkind contributions towards tasks that (1) are of a technical or planning nature and (2) have a cost estimate of less than or equal to $100,000 per task identified in the PMP. An addendum shall be approved in the following manner: 1. The Party proposing the addendum shall first obtain the approval of the Management Team. An addendum may be proposed by more than one Party and may include multiple tasks. After such approval by the Management Team is obtained, the proposing Party shall prepare an addendum that describes the following: a. The scope of work for additional funding or in-kind services to be provided, or the list of tasks identified in the PMP to be accelerated by advance funding. b. The timetable for the additional services or inwkind contribution to be performed. c. The amount of additional or advance funding that will be contributed or in-kind services that will be performed. d. The method of credit or reimbursement to the proposing Party. 921111-2 5 2. The proposed addendum shall not become effective until it is approved by the chief executive officer of each of the Parties, the Board of the Authority and the project manager of the Corps. Any other additional or advance funding or in-kind contribution not meeting the limitations on addendums described above shall be approved only as an amendment to this Agreement that is approved by the governing body of each Party. For additional or advance funding or in-kind contributions provided by San Mateo or Water District as part of an addendum or amendment, the actual costs up to the dollar amount specified in the addendum or amendment shall be credited by the Corps, upon the Corps' acceptance of the funded or provided work, against the next cost share invoice under the Funding Agreement. For additional or advance funding or in-kind contributions provided by East Palo Alto, Menlo Park or Palo Alto, the credit or reimbursement shall be provided in the manner described in the approved addendum or amendment B. Mutual Hold Harmless 1. Each Party shall defend, hold harmless and indemnify the other Parties, and their elected and appointed officials, officers, directors and employees from any and all claims for injuries or damages which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of that Party, and its elected and appointed officials, officers, directors and employees. 2. In the event of concurrent intentional or unintentional misconduct, negligent acts or omissions by the Parties (or any of their respective elected and appointed officials, officers, directors and employees), then the liability for any and all claims for injuries or damages to persons and property which arise out of terms and conditions of this Agreement shall be apportioned according to the California law of comparative negligence. 3. The duties and obligations of each Party as set forth in this Section HI.B shall survive and continue in full force and effect after the respective termination of the FCSA and this Agreement. C. Retention of Records. Right to Monitor and Audit The authority shall maintain all records for three (3) years after the Study is terminated or completed. The records shall be subject to the examination and/or audit of San Mateo, Water District, East Palo Alto, Menlo Park, and Palo Alto. The Authority shall comply with all program and fiscal reporting requirements set forth under the FCSA and as required by this Agreement. D. Termination of Agreement This Agreement shall automatically terminate one hundred and eighty (180) days after the completion of the Study or the termination of the FCSA, whichever first occurs. 921111-2 6 E. Notices Any notice or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial courier that provides a receipt, and addressed to the Parties at the addresses stated below, or at such other address as a Party may hereafter notify the other Parties in writing: Authority: San Mateo: Water District: East Palo Alto: Menlo Park: Palo Alto: San Francisquito Creek Joint Powers Authority 701 Laurel Street Menlo Park, California 94025 Attention: Cynthia D'Agosta, Executive Director Facsimile No.: (650) 328-7935 San Mateo County Flood Control District 555 County Center, 5th Floor Redwood City, CA 94063 Attention: Director of Public Works Facsimile No.: (650) 361-8220 Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118-3614 Attention: Stanley Williams, Chief Executive Officer Facsimile No.: (408) 445-1435 City of East Palo Alto 2415 University Avenue East Palo Alto, CA 94303 Attention: Alvin James, City Manager Facsimile No: (650) 853 -3115 City of Menlo Park 701 Laurel Street Menlo Park, CA 94025 Attention: David Boesch, City Manager Facsimile No: (650) 328-7935 City of Palo Alto Department of Public Works 250 Hamilton A venue Palo Alto, CA 94301 Attention: Glenn Roberts, Director of Public Works Facsimile No: (650) 329-2299 Service of any such notice or other communications so made shall be deemed effective on the day of actual delivery (whether accepted or refused) as evidenced by: a) confirmed 921111-2 7 answerback if by facsimile (provided that if any notice or other communication to be delivered by facsimile is unable to be transmitted because of a problem affecting the receiving party's facsimile machine, the deadline for receiving such notice or other communication shall be extended through the next business day); b) as shown by the addressee's return receipt if by certified mail; and c) as confirmed by the courier service ifby courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non~ business day, then such notice or demand so made shall be deemed effective on the first business day immediately following the day of actual delivery. No communications via electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder. F. Severability In the event any portion of this Agreement is declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect as fully as though such invalid, illegal or unenforceable portion had never been part of this Agreement. G. Governing Law and Compliance with Laws The Parties agree that California law shall govern this Agreement. In the performance of this Agreement each Party shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and applicable local government. H. Venue In the event that suit shall be brought by any Party, the Parties agree that venue shall be exclusively vested in the state courts of either the County of Santa Clara or the County of San Mateo, or when appropriate, in the United States Court, for the Northern District of California, in either the San Francisco or San Jose branch. I. Assignability and Subcontracting A Party shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required under this Agreement without the prior written consent of the other Parties or except as approved by the Board of Directors of Authority. J. Ownership of Materials All reports, documents, or other materials developed or discovered by any Party or any other person engaged directly or indirectly by any Party to perform the services required hereunder shall be and remain the mutual property of all Parties without restriction or limitation upon their use. K. Entire Agreement This Agreement constitutes the entire agreement between all the Parties with respect to this subject matter and supersedes all prior offers and negotiations, oral and written. This 921111-2 8 Agreement may not be amended or modified in any respect whatsoever except by an instrument in writing signed by authorized representatives of all the Parties. JL. COlllnterparts This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument. [This Remaining Space Intentionally Left Blank; Signatures Begin On The Next Page] 921111-2 9 IN WITNESS WHEREOF, the Authority, San Mateo, Water District, East Palo Alto, Menlo Park, and Palo Alto have duly executed this Agreement as of the date and year first above written. Authority: Date: 921111-2 10 '121111-2 SA.1" MATEO COUNTY FLOOD CONll' ROIJ STRI CT BY:~~1~·~",;1<- Date: \..1 q ! 01 ---.,t4-.. ~ .. ~------. ~jfqt§..2tl1ati~ (GO\lemMf\m Code S~C;fion 251(0) U ~rt1fv th.'lt a OOP" 01 the origflla I <1OCUITH'3n~ flrtlld II the Offioo (If thIS C!~fk of the P~ard of Su~roiscl'S r San Mateo County l'Ia~ ~n da!!V9f€ld to thE! ~f~sjd~ of thE'! Bearci of Sl.!~rvi~orst '~¥~~JtjC~_ .. ," • ':)I)Ulv CIp,!'V. of the BorH0 o{ SUf)(,:rvisor? VED AS Trt~RM: vJ l/v-----1 District Counsel SANTA CLARA VALLEY WATER JD>JI§TRICT d ~ " / By:_~~~~~~---,/..fI!. Nai Hsueh. Acting Chief Executive Officer Date: 101 -,:1.,j. -dltPlJ 6, -=--- 921111-2 12 APPROVED AS TO FORM: eJITY OlF lEA§T PALO ALTO City Attorney By: Date:# ___ _ 921111-2 13 J1jPDT~ City Attorney BY:---v<--r=---f:?'- 921111-2 14 APPROVED AS TO FORM.: C]TV OF lP'AlLO ALTO (y~~{Tlt.·t-~. 1 ~, . Senior Assistant City Attorney By:_--"---'t'If-__ ---:--'''---' ___ _ Date: t I :z./2 ej()) 7 II 921111-2 15 EXHIBIT A AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY FOR THE SAN FRANCISQUITO CREEK THIS AGREEMENT is entered into this day, of __ , 20--, by and between the Department of the Anny (hereinafter the "Government"), represented by the District Engineer executing this Agreement, and the San Francisquito Creek Joint Powers Authority (hereinafter the "Sponsor"), WITNESSETH, that WHEREAS, the U.S. House of Representatives Committee on Transportation and Infrastructure has requested the Secretary of the Anny, in accordance with Section 4 of the Flood Control Act of 1941, P.L. 77-228, 55 Stat. 638 (July 24, 1941), to conduct a study of the Guadalupe River and Tributaries, California, to detennine whether flood damage reduction, environmental restoration and protection, stonn water retention, water conservation and supply, recreation and other allied purposes are advisable in the interest of the San Fransciquito Creek Watershed, including San Francisquito Creek, Santa Clara and San Mateo Counties, California, pursuant to Resolution, San Francisquito Creek Watershed, California, Docket 2649, May 22,2002; WHEREAS, the U.S. House of Representatives Committee on Public Works and Transportation is authorized to direct commission of this feasibility study by resolution pursuant to the Rivers and Harbors Act of 1913,33 U.S.C. § 542 (2005); WHEREAS, the U.S. Anny Corps of Engineers has conducted a reconnaissance study of San Francisquito Creek in the interest of flood damage reduction, environmental restoration and protection, stonn water retention, water conservation and supply, recreation and other allied purposes pursuant to this authority, and has detennined that further study in the nature of a "Feasibility Phase Study" (hereinafter the "Study") is required to fulfill the intent of the study authority and to assess the extent of the Federal interest in participating in a solution to the identified problem; and WHEREAS, Section 105 of the Water Resources Development Act of 1986 (Public Law 99-662, as amended) specifies the cost sharing requirements applicable to the Study; WHEREAS, the Sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in study cost sharing and financing in accordance with the tenns of this Agreement; and WHEREAS, the Sponsor and the Government understand that entering into this Agreement in no way obligates either party to implement a project and that whether the Government supports a project authorization and budgets it for implementation depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies and with the budget priorities of the Administration; 1 NOW THEREFORE, the parties agree as follows: ARTICLE I -DEFINITIONS F or the purposes of this Agreement: A. The term "Study Costs" shall mean all disbursements by the Government pursuant to this Agreement,from Federal appropriations or from funds made available to the Government by the Sponsor, and all negotiated costs of work performed by the Sponsor pursuant to this Agreement. Study Costs shall include, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of participation in Study Management and Coordination in accordance with Article IV of this Agreement; the costs of contracts with third parties, including termination or suspension charges; and any termination or suspension costs (ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement. B. The term "estimated Study Costs" shall mean the estimated cost of performing the Study as of the effective date of this Agreement, as specified in Article 1I1.A. ofthis Agreement. C .. The term "excess Study Costs" shall mean Study Costs that exceed the estimated Study Costs and that do not result from mutual agreement of the parties, a change in Federal law that increases the cost of the Study, or a change in the scope of the Study requested by the Sponsor. D. The term "study period" shall mean the time period for conducting the Study, commencing with the release to the U.S. Army Corps of Engineers San Francisco District of initial Federal feasibility funds following the execution of this Agreement and ending when the Assistant Secretary of the Army (Civil Works) submits the feasibility report to the Office of Management and Budget (OMB) for review for consistency with the policies and programs of the President. E. The term "PMP" shall mean the Project Management Plan, which is attached to this Agreement and which shall not be considered binding on either party and is subject to change by the Government, in consultation with the Sponsor. F. The term "negotiated costs" shall mean the costs ofin-kind services to be provided by the Sponsor in accordance with the PMP. G. The term "fiscal year" shall mean one fiscal year ofthe Government. The Government fiscal year begins on October 1 and ends on September 30. ARTICLE II -OBLIGATIONS OF PARTIES A. The Government, using funds and in-kind services provided by the Sponsor and funds appropriated by the Congress of the United States, shall expeditiously prosecute and complete the Study, in accordance with the provisions of this Agreement and Federal laws, regulations, and policies. 2 B. In accordance with this Article and Article lILA., III.B. and IILC. of this Agreement, the Sponsor shall contribute cash and in-kind services equal to fifty (50) percent of Study Costs other than excess Study Costs. The Sponsor may, consistent with applicable law and regulations, contribute up to 50 percent of Study Costs through the provision of in-kind services. The in- kind services to be provided by the Sponsor, the estimated negotiated costs for those services, and the estimated schedule under which those services are to be provided are specified in the PMP. Negotiated costs shall be subject to an audit by the Government to determine reasonableness, allocability, and allowability. C. The Sponsor shall pay a fifty (50) percent share of excess Study Costs in accordance with Article III.D. of this Agreement. D. The Sponsor understands that the schedule of work may require the Sponsor to provide cash or in-kind services at a rate that may result in the Sponsor temporarily diverging from the obligations concerning cash and in-kind services specified in paragraph B. of this Article. Such temporary divergences shall be identified in the quarterly reports provided for in Article III.A. of this Agreement and shall not alter the obligations concerning costs and services specified in paragraph B. of this Article or the obligations concerning payment specified in Article III of this Agreement. E. If, upon the award of any contract or the performance of any in-house work for the Study by the Government or the Sponsor, cumulative financial obligations of the Government and the Sponsor would result in excess Study Costs, the Government and the Sponsor agree to defer award of that and all subsequent contracts, and performance of that and all subsequent in-house work, for the Study until the Government and the Sponsor agree to proceed. Should the Government and the sponsor require time to arrive at a decision, the Agreement will be suspended in accordance with Article X., for a period of not to exceed six months. In the event the Government and the sponsor have not reached an agreement to proceed by the end of their 6 month period, the Agreement may be subject to termination in accordance with Article X. F. No Federal funds may be used to meet the Sponsor's share of Study Costs unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. G. The award and management of any contract with a third party in furtherance of this Agreement which obligates Federal appropriations shall be exclusively within the control of the Government. The award and management of any contract by the Sponsor with a third party in furtherance of this Agreement which obligates funds of the Sponsor and does not obligate Federal appropriations shall be exclusively within the control of the Sponsor, but shall be subject to applicable Federal laws and regulations. H. The Sponsor shall be responsible for the total cost of developing a response plan for addressing any hazardous substances regulated under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767, (codified at 42 U.S.C. Sections 9601-9675), as amended, existing in, on, or under any lands, easements or rights-of-way that the Government determines to be required for the construction, operation, and maintenance of the project. Such costs shall not be included in total study costs. 3 ARTICLE III -METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties, current projections of Study Costs, current projections of each party's share of Study Costs, and current projections of the amount of Study Costs that will result in excess Study Costs. At least quarterly, the Government shall provide the Sponsor a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are $7,463,100 and the Sponsor's share of estimated Study Costs is $3,731,550. In order to meet the Sponsor's cash payment requirements for its share of estimated Study Costs, the Sponsor must provide a cash contribution currently estimated to be $3,731,550. The dollar amounts set forth in this Article are based upon the Government's best estimates, which reflect the scope of the study described in the PMP, projected costs, price-level changes, and anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Sponsor. B., The Sponsor shall provide its cash contribution required under Article II.B. of this Agreement in accordance with the following provisions: 1. For purposes of budget planning, the Government shall notify the Sponsor by September 1 of each year of the estimated funds that will be required from the Sponsor to meet the Sponsor's share of Study Costs for the upcoming fiscal year. 2. No later than 60 calendar days prior to the scheduled date for the Government's issuance of the solicitation for the first contract for the Study or for the Government's anticipated first significant in-house expenditure for the Study, the Government shall notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for the first fiscal year of the Study. No later 30 calendar days thereafter, the Sponsor shall verify to the satisfaction of the Government that the Sponsor has deposited the required funds in an escrow or other account acceptable to the Government, with interest accruing to the Sponsor. 3. For the second and subsequent fiscal years of the Study, the Government shall, no later than 60 calendar days prior to the beginning of the fiscal year, notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for that fiscal year, taking into account any temporary divergences identified under Article II.D of this Agreement. No later than 30 calendar days prior to the beginning of the fiscal year, the Sponsor shall make the full amount of the required funds available to the Government through the funding mechanism specified in paragraph B.2. of this Article. 4. The Government shall draw from the escrow or other account provided by the Sponsor such sums as the Government deems necessary to cover the Sponsor's share of contractual and in.;;house fiscal obligations attributable to the Study as they are incurred. 5. In the event the Government determines that the Sponsor must provide additional funds to meet its share of Study Costs, the Government shall so notify the Sponsor in writing. No later than 60 calendar days after receipt of such notice, the Sponsor shall make the full amount of the additional required funds available through the funding mechanism specified in paragraph B.2. of this Article. 4 C. Within ninety (90) days after the conclusion of the Study Period or termination of this Agreement, the Government shall conduct a final accounting of Study Costs, including disbursements by the Government of Federal funds, cash contributions by the Sponsor, the amount of any excess Study Costs, and credits for the negotiated costs of the Sponsor, and shall furnish the Sponsor with the results of this accounting. Within thirty (30) days thereafter, the Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if any, of cash contributions and credits given over its required share of Study Costs, other than excess Study Costs, or the Sponsor shall provide the Government any cash contributions required for the Sponsor to meet its required share of Study Costs other than excess Study Costs. D. The Sponsor shall provide its cash contribution for excess Study Costs as required under Article II.C. of this Agreement by delivering a check payable to "FAO, USAED, SAN FRANCISCO" to the District Engineer as follows: 1. After the project that is the subject of this Study has been authorized for construction, no later than the date on which a Project Cooperation Agreement is entered into for the project; or 2. In the event the project that is the subject of this Study is not authorized for construction by a date that is no later than 5 years of the date of the final report of the Chief of Engineers concerning the project, or by a date that is no later than 2 years after the date of the termination of the study, the Sponsor shall pay its share of excess costs on that date (5 years after the date of the Chief of Engineers or 2 year after the date of the termination of the study). ARTICLE IV -STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the Sponsor and the Government shall appoint named senior representatives to an Executive Committee. The Executive Committee shall include from the government, the District Engineer, Deputy District Engineer for Project Management, and the Chief, Planning/Engineering Division, and from the Sponsor, the Director ofthe San Francisquito Creek Joint Powers Committee, the Public Works Director of the San Mateo County Flood Control District, and the Lower Peninsula Watershed Manager of the Santa Clara Valley Water District. Thereafter, the Executive Committee shall meet regularly until the end of the Study Period. B. Until the end of the Study Period, the Executive Committee shall generally oversee the Study consistently with the PMP. C. The Executive Committee may make recommendations that it deems warranted to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Government has the discretion to accept, reject, or modifY the Executive Committee!s recommendations. D. The Executive Committee shall appoint representatives to serve on a Study Management Team. The Study Management Team shall keep the Executive Committee informed of the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the PMP. 5 E. The costs of participation in the Executive Committee (including the cost to serve on the Study Management Team) shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE V -DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. Such costs shall not be included in Study Costs. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI -MAINTENANCE OF RECORDS A. Within 60 days of the effective date of this Agreement, the Government and thy Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect total Study Costs. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 C.F.R. Section 33.20. The Government and the Sponsor shall maintain such books, records, documents, and other evidence in accordance with these procedures for a minimum of three years after completion of the Study and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the Sponsor shall each allow the other to inspect such books, documents, records, and other evidence. B. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Sponsor is required to conduct under the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits shall be included in total Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VII -RELATIONSHIP OF PARTIES The Government and the Sponsor act in independent capacities in the performance of their respective rights a~d obligations under this Agreement, and neither is to be considered the officer, agent, or employee of the other. ARTICLE VIII -OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. 6 ARTICLE IX -FEDERAL AND STATE LA WS In the exercise of the Sponsor's rights and obligations under this Agreement, the Sponsor agrees to comply with all applicable Federal and State laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Directive 5500.11 issued pursuant thereto and published in 32 C.F.R. Part 195, as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army". AR TICLE X -TERMINATION OR SUSPENSION A. This Agreement shall terminate at the conclusion of the Study Period, and neither the Government nor the Sponsor shall have any further obligations hereunder, except as provided in Article IIlC.; provided, that prior to such time and upon thirty (30) days written notice, either party may terminate or suspend this Agreement. In addition, the Government shall terminate this Agreement immediately upon any failure of the parties to agree to extend the study under Article ILE. of this agreement, or upon the failure of the sponsor to fulfill its obligation under Article III. of this Agreement. In the event that either party elects to terminate this Agreement, both parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article III.C. and III.D. of this Agreement. Upon termination of this Agreement, all data and information generated as part of the Study shall be made available to both parties. B. Any termination of this Agreement shall not relieve the parties ofliability for any obligations previously incurred, including the costs of closing out or transferring any existing contracts. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps of Engineers, San Francisco District. BY=·~~~~~~~~~ __ Pliilip T. E Lieutenant Colonel, Corps of Engineers District Engineer San Francisco District EK JOINT POWERS 8 EXHIBIT B Agreement for Funding a Feasibility Study for San Francisquito Creek Among the San Francisquito Creek Joint Powers Authority, the San Mateo County Flood Control District and the Santa Clara Valley Water District This Agreement ("Agreement") is made and entered into as of _, 2005, by and among the SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY, a California joint powers authority ("Authority"), the SAN MATEO COUNTY FLOOD CONTROL DISTRICT, a special district of the State ofCa:lifornia ("San Mateo"), and the SANTA CLARA VALLEY WATER DISTRICT, a special district of the State of California ("Santa Clara"), collectively referred to as Parties, or individually as Party. RECITALS A. San Francisquito Creek has a history of flooding the communities in and around East Palo Alto, Menlo Park and Palo Alto. The latest and the most damaging flood occurred in 1998. B. Following the flood of 1998, the cities of East Palo Alto, Menlo Park and Palo Alto along with the San Mateo County Flood Control District and the Santa Clara Valley Water District formed the San Francisquito Creek Joint Powers Authority on May 18, 1999. These entities are full members of the Authority. The Authority was authorized to represent its member agencies as the sponsor for a U.S. Corps of Engineers' ("Corps") flood control project on May 23,2002. C. The Corps, working with the Authority, which is considered the local sponsor, has completed a reconnaissance study for San Francisquito Creek. The reconnaissance study results indicated a Federal Interest in developing a flood control project for San Francisquito Creek. Therefore, the Corps plans to progress to the feasibility study (the "Study") phase ofthe San Francisquito Creek Flood Damage Reduction and Ecosystem Project (the "Project") which requires a cost sharing agreement with a local sponsor. D. The Authority is proposing to enter into a Feasibility Cost Share Agreement (FCSA) with the U.S. Department of the Army, San Francisco District of the Corps for a flood control project feasibility study of San Francisquito Creek. The Corps, pursuant to the FCSA, has agreed to initiate a project to evaluate flood protection within the San Francisquito Creek Watershed in Santa Clara and San Mateo Counties. E. The FCSA requires the Authority, as the project sponsor, to contribute to the Corps, in cash or in-kind services, fifty percent (50%) of the cost of the Corps' evaluation of flood control protection as the local share of the Study Costs as defined in the FCSA (the "Study Costs"). F. San Mateo and Santa Clara, on behalf of themselves and the other members of the Authority within their respective jurisdictions, on July 23, 2001, agreed to provide up to $1.5 million each as the local share to fund the Study Costs and the Authority Costs. 856737vl 1 G. The Parties understand that there will be an implementation agreement between all members of the JP A that will identify roles and responsibilities for the members during the feasibility phase ofthe Project (the "Implementation Agreement"). NOW, THEREFORE, in consideration of the foregoing recitals, and the covenants and conditions in the sections contained herein below, the parties agree as follows: AGREEMENT 1. Funding Payment and Amount San Mateo and Santa Clara agree to contribute up to One Million Five Hundred Thousand Dollars ($1,500,000.00) each to fund the Authority's contribution to the Study Costs. In connection with the Study Costs, San Mateo and Santa Clara shall each deposit into an escrow account as described in Section 2 of this Agreement, the amount requested, within twenty (20) days of receiving a request for payment from the Authority. Authority will make requests for payment in accordance with estimated costs provided by the Corps to meet the sponsor's share of Corps' costs for the succeeding fiscal year. Requests for payment from San Mateo and Santa Clara shall be in equal amounts and at the same time. Requests for payments, however, shall not be issued until an escrow account has been established as described in Section 2. The amount, method and timing of any credit for any approved in-kind services provided by either San Mateo or Santa Clara shall be as provided for in the Implementation Agreement that will be entered into after the FCSA is approved and executed by the Authority and the Corps. 2. Escrow Account The Authority shall establish an independent interest bearing escrow account to receive the cash contributions required for Study Costs. The escrow account shall be segregated from any Authority accounts. Escrow instructions for the escrow account must be approved by both San Mateo and Santa Clara before the escrow account is established. Any escrow account fees or charges shall be deducted equally from the cash contribution amount deposited by San Mateo and Santa Clara The escrow account shall be overseen by the Authority subject to disbursement as herein provided. Interest shall accrue and be held for the benefit of San Mateo and Santa Clara and shall be paid annually to San Mateo and Santa Clara. 3. Disbursement of Funds. The Authority shall review all requests for payment under the FCSA submitted by the Corps. Upon determining that a request for payment or portion of a request for payment is deemed appropriate and justified by Authority's Executive Director, Authority shall promptly issue escrow instructions to disburse funds from the escrow account to the payee. The Authority shall not disburse funds from the escrow account except in accordance with this Section. 856737vl 2 The Authority shall provide semi-annual reports to the participating JPA members of receipts and expenditures made to and from the escrow account. 4. Management of FCSA and Study. The Authority, in its sole discretion, shall be responsible for the performance ofthe Authority's obligations under the FCSA related to conducting and overseeing the Study. San Mateo and Santa Clara shall have no rights or obligations under the FCSA to conduct or oversee the Study, except as provided in this Agreement or as may be provided in the Implementation Agreement. San Mateo and Santa Clara are members of the Authority's project management team that will consult with and provide advice to the Executive Director on the implementation of the FCSA. 5. Mutual Hold Harmless. A. The Authority shall defend, hold harmless and indemnifY San Mateo and Santa Clara, their officers, directors and employees from any and all claims for injuries or damages which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of Authority, its officers, directors and/or employees. B. San Mateo shall defend, hold harmless, and indemnifY Santa Clara and the Authority, its officers, directors and employees from any and all claims for injuries or damages to persons and/or property which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of San Mateo, their officers, directors and/or employees. C. Santa Clara shall defend, hold harmless, and indemnifY San Mateo and the Authority, its officers, directors and employees from any and all claims for injuries or damage to persons and/or property which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of Santa Clara, their officers, directors and/or employees. D. In the event of concurrent intentional or unintentional misconduct, negligent acts or omissions by San Mateo, Santa Clara and the Authority (or each of their respective officers, directors and/or employees), then the liability for any and all claims for injuries or damages to persons and/or property which arise out of terms and conditions of this Agreement shall be apportioned according to the California law of comparative negligence. E. The duties and obligations of this Section 5 shall survive and continue in full force and effect after the termination of the FCSA and this Agreement. 6. Retention of Records, Right to Monitor and Audit The Authority shall maintain all records for three (3) years after the Study is terminated or completed. The records shall be subject to the examination and/or audit of San Mateo and Santa Clara. Each year on January 2, or on a date mutually agreed to by the Parties and prior to termination and upon termination, the Authority shall submit to San Mateo and Santa Clara a 856737vl 3 statement of activities and balances for the escrow account to each party. The Authority shall comply with all program and fiscal reporting requirements set forth under the FCSA and as required by this Agreement. 7. Termination of Agreement. This Agreement shall automatically terminate one hundred and eighty (180) days after the completion of the Study or termination of the FCSA. 8. Refund of Undisbursed Funds. Undisbursed funds and interest shall be returned to San Mateo and Santa Clara within ninety (90) days of the completion of the Study or the termination of the FCSA and payment of all financial obligations of the Authority to the Corps under the FCSA. All undisbursed funds in the escrow account, including any interest earned thereon, shall be divided equally between San Mateo and Santa Clara. 9. Notices. Any notice or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other parties in writing: Authority: San Mateo: Santa Clara: San Francisquito Creek Joint Powers Authority 701 Laurel Street Menlo Park, California 94025 Attention: Cynthia D' Agosta, Executive Director Facsimile No.: (650) 328-7935 San Mateo County Flood Control District 555 County Center, 5th Floor Redwood City, CA 94063 Attention: Director of Public Works Facsimile No.: (650) 361-8220 Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118-3614 Attention: Stanley Williams, Chief Executive Officer Facsimile No.: (408) 445-1435 Service of any such notice or other communications so made shall be deemed effective on the day of actual delivery (whether accepted or refused) as evidenced by: a) confirmed answerback ifby facsimile (provided that ifany notice or other communication to be delivered 856737vl 4 by facsimile is unable to be transmitted because of a problem affecting the receiving party's facsimile machine, the deadline for receiving such notice or other communication shall be extended through the next business day), b) as shown by the addressee's return receipt ifby certified mail, and c) as confirmed by the courier service if by courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non-business day, then such notice or demand so made shall be deemed effective on the first business day immediately following the day of actual delivery. No communications via electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder. 10. Severability. In the event any portion of this Agreement is declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect as fully as though such invalid, illegal or unenforceable portion had never been part of this Agreement. 11. Governing Law and Compliance with Laws The parties agree that California law shall govern this Agreement. In the performance of this Agreement each party shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and applicable local government. 12. Venue In the event that suit shall be brought by any party to this contract, the parties agree that venue shall be exclusively vested in the state courts of either the County of Santa Clara, or the County of San Mateo or where otherwise appropriate, exclusively in the United States Court, Northern District of California, in either Redwood City or San Jose, California. 13. Assignability and Subcontracting. Parties shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required under this Agreement without the prior written consent of the other parties. Notwithstanding, Authority may contract with an accounting firm or an escrow company to fulfill its obligations under Section 2. 14. Ownership of Materials All reports, documents, or other materials developed or discovered by any Party or any other person engaged directly or indirectly by any Party to perform the services required hereunder shall be and remain the mutual property of all Parties without restriction or limitation upon their use. 15. Entire Agreement This Agreement constitutes the entire agreement between the Authority, San Mateo and 856737vl 5 Santa Clara with respect to the subject matter hereof and supersedes all prior offers and negotiations, oral and written. This Agreement may not be amended or modified in any respect whatsoever except by an instrument in writing signed by authorized representatives of the Authority, San Mateo and Santa Clara. 16. Further Actions. The Authority, San Mateo and Santa Clara agree to execute all instruments and documents, and to take all actions, as may be reasonably required to consummate the transaction contemplated by this Agreement. This agreement shall be in full force and effect only upon execution of the FCSA by the Authority. 17. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument. [This Remaining Space Intentionally Left Blank; Signatures Begin On The Next Page] 856737vl 6 ( ( IN WITNESS WHEREOF, the Authority, San Mateo and Santa Clara have executed this , . Funding Agreement as of the date and year first above written. Authority: APPROVED AS TO FORM: General Counsel ATTEST: 856737vl ......---.-.,.,:0 CREEK JOINT POWERS SAN MATEO COUNTY FLOOD CONTROL DISTRICT By: _/);t,---,--'~!/ ·dt----\-- Richard Gordon President, Board of Supervisors Date: \\ -2 -D6 SANTA CLARA VALLEY WATER CONTROL DISTRICT Stanle Chief Date: __ I/ dt-z-4tt_v_( ___ _ 7 RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO EXPRESSING APPRECIATION TO GARY WEINREICH UPON HIS RETIREMENT WHEREAS, Gary Weinreich has served the City of Palo Alto from February 21, 1978 to June 19, 2009, as Engineer for the Public Works Department; and WHEREAS, Gary Weinreich has enhanced the quality of life for the citizens of this community by managing capital improvement projects; reviewing private development projects for grading, drainage and flood zone issues; and issuing permits for work performed in the public right-of-way; and WHEREAS, Gary Weinreich has provided his expertise and guidance to the developers and citizens of Palo Alto, as well as to his fellow employees, in a careful, courteous and professional manner; and WHEREAS, the City of Palo Alto desires to recognize the meritorious service of Gary Weinreich. NOW, THEREFORE, BE IT RESOLVED, that the Council of the City of Palo Alto hereby commends the outstanding public service of Gary Weinreich and records its appreciation as well as the appreciation of the citizens of this community for the service and contribution rendered during his 31 years of employment with the City. INTRODUCED AND PASSED: JUNE 8, 2009 ATTEST: APPROVED: ____________________ ______________________ City Clerk Mayor APPROVED AS TO FORM: ____________________ ______________________ City Attorney City Manager RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO EXPRESSING APPRECIATION TO LUZ CORTES UPON HER RETIREMENT WHEREAS, Luz Cortes has served the City of Palo Alto from October 3, 1977, to May 28, 2009, as Engineering Technician III for the Public Works Department; and WHEREAS, Luz Cortes has enhanced the quality of life for the citizens of this community by reviewing private development projects for mapping, grading, drainage and flood zone issues, issuing permits to contractors for work performed in the public right-of-way, and issuing permits for special events, such as the annual art festival and the farmer’s market; and WHEREAS, Luz Cortes has provided her expertise and guidance to the developers and citizens of Palo Alto, as well as to her fellow employees, in a friendly, courteous and professional manner; and WHEREAS, the City of Palo Alto desires to recognize the meritorious service of Luz Cortes. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Palo Alto hereby commends the outstanding public service of Luz Cortes and records its appreciation as well as the appreciation of the citizens of this community for the service and contribution rendered during her 31 years of employment with the City. INTRODUCED AND PASSED: JUNE 8, 2009 ATTEST: APPROVED: ____________________ ______________________ City Clerk Mayor APPROVED AS TO FORM: ____________________ ______________________ City Attorney City Manager TO: FROM: DATE: City of Palo Alto Memorandum HONORABLE CITY COUNCIL CITY MANAGER JUNE 8, 2009 REPORT TYPE: STUDY SESSION SUBJECT: Status Update on the San Francisquito Creek Joint Powers Authority's Initial Capital Project The San Francisquito Creek Joint Powers Authority (JPA) is working cooperatively with the US Army Corps of Engineers on a comprehensive flood damage reduction and ecosystem restoration project for San Francisquito Creek. This is a long-term project that will require several more years of study and design, as well as substantial amounts of federal and local funding. In an effort to provide some tangible benefits in the near future, the JP A has been pursuing the implementation of an Initial Capital Project that would provide incrementally improved flood protection to the communities in the watershed. The JP A has retained engineering consultant Philip Williams & Associates to assess the· feasibility of several Initial Capital Project alternatives for San Francisquito Creek. Specifically, the consultant was asked to study the feasibility of two types of potential projects: 1) providing increased flow capacity in the reach of creek downstream of Highway 101, and 2) detaining storm water runoff in the upper watershed in order to reduce flood flows in downstream reaches. The consultant presented their preliminary findings to the JP A Board at their May 28 meeting (see attached summary). This presentation was the beginning of a two-month process of outreach and discussion with the governing bodies of the JPA member agencies, neighborhood groups, and the community at-large regarding potential Initial Capital Projects to be implemented by the JP A. At this evening's study session, JP A Executive Director Len Materman will be presenting the consultant's findings on the project alternatives, with particular emphasis on potential impacts to City of Palo Alto residents, businesses and City-owned properties. The doWnstream flood control options would potentially affect the Palo Alto· Golf Course and the City-owned Faber-Laumeister Tract north of San Francisquito Creek. The upstream detention scenarios are located on Stanford University lands. Status Update -San Francisquito' Creek June 8,2009 Page 2 The study session will be an opportunity for JP A staff to provide information to the Council on the potential Initial Capital Project alternatives and to solicit comments and feedback. After a series of meetings with other stakeholders, staff and the JP A Executive Director will return to Council on July 20 with a recommendation to proceed with a specific project alternative. On July 23, the JPA Board is scheduled to approve the issuance of a Request for Proposals for a design professional to conduct the design and environmental review of a defined Initial Capital Project. Ienl~flJ; SIDl-=-ancisqUito JPA's Initial;: Projects -c 'GLENN S. ROBERTS JAMES KEENE Director of Public Works City Manager Options for the San Francisquito JPA's Initial Capital Projects Project Schedule in 2009 May 28: Complete Technical Feasibility June-July: Community Outreach August: JPA submits application for Federal credit September: Engineering Design and Environmental Planning begins April 2011: Construction begins Build capacity to detain water upstream, increase flow under Highway 101, and either create a bypass channel through I ~ A~IT'®®lllID®lIDtt §81nn lFIT'<1llnn~ll.§(ljJIlllilU:® Cm~elk J[®nllllli :fiI'®WeIrnl AIlllItIlli®ll'ii1£y $.umtdl Jlli~ Memmil1leIT' Aggellll~fie~ R®ne§ 311lID4:ll Re§]pl®lID§nil1lnllnttiie§ Reg311IT'4:llnlIDg 1rllil!l:: AJrmmy C®ll]»§ off 1ElIDgJlJIDeeIrnl9lFe311~nbilliitty C®§D: SJln311Jr® AgJr®emmenntt This Agreement ("Agreement") is made and entered into as ()f January 25,2007, by and am()ng the SAN fRANCIS QUITO CREEK JOINT POWERS AUTHORITY, a CalifOl1:llajoilitt powers authQrity ("AuthQrity"), the SAN MATEO COUNTY FLOOD CONTROL DISTRICT, a special district Qfthe State QfCalifornia ("'San Mateo"), the SANTA CLARA V ALLEY WATER DISTRICT, a special district of the State of Cali forma ("Water District "), the CITY OF EAST PALO ALTO, a municipal corporati()n ("East PallO AltQ"), the CITY Of MENLO PARK, a municipal cQrporatiQn ("MenlQ Park"), and the CITY OF PALO ALTO, a CalifQrnia charter city ("'PallO AltQ"), cQllectively referred tQ as Parties lOr individually as Party_ RIECITAlS A. San FrancisquitQ Creek has a histQry QfflQQding the cQmmunities in and arQund East PallO Alt(), Menl() Park and Palo AltQ. The latest and the most danwging fl()od Qccurred in 1998. B. FQllQwing the flQQd Qf 1998, East PallO AltQ, MenlQ Park, PallO AltQ, San MateQ and Water District fQrmed the San FrancisquitQ Creek JQint PlOwers AuthQrity on May 18, 1999. These entities are fun members of the AuthQrity_ The AuthQrity was authQrized to represent its member agencies as the IQcal SPQnsor fQr a U.S. Army CQrps of Engineers' ("CQrps") flQQd damage reductiQn and ecQsystem restQratiQn project IOn May 23, 2002. C. The CQrps, wQrking with the Authority as the IQcal sponsQr, completed a reconnaissance study fQr San Francisquito Creek in 2005. reconnaissance study indicated a Federal Interest in developing a flQQd damage reductiQn and ecosystem restQratiQn prQject fQr San Francisquito Creek. D. Based on the recQnnaissance study and extensive discussiQns between the CQrps and the AuthQrity, IOn November 17,2005, a Feasibility ClOst Share Agreement ("FCSA") was entered intQ between the CQrps and the AuthQrity fQr a flood damage reductiQn and eCQsystem restQration prQject feasibility study of San FrancisquitQ Creek and adjacent tidal areas ("Study"). The CQrps, pursuant tQ the FCSA, has agreed to initiate a project tQ evaluate flQQd protectiQn and ecQsystem restQratiQn alternatives within the San Francisquito Creek Watershed and tidal areas as defined within, in Santa Clara and San MateQ CQunties. The FCSA and its associated PrQject Management Plan is attached as Exhibit A. E. The FCSA requires the Authority, as the prQject IQcal SPQnSQr, to contribute tQ the Corps, in cash lOr in-kind services, fifty percent(50%) Qfthe ClOst Qfthe Study, as described in the FCSA, as the IQcal share. The FCSA alsQ requires the AuthQrity tQ fund lOne hundred percent (100%) Qfthe ClOst Qf other studies as may be required but nQt identified as funded by the Corps 921111-2 1 in the FCSA, including but not limited to the environmental review that may be required by the California Environmental Quality Act ("CEQA"). F. San Mateo and Water District agreed to provide up to $1.5 million each ($3 million total) to fund the local share of the Study pursuant to the Agreement for Funding a Feasibility Study for San Francisquito Creek Among the San Francisquito Creek Joint Powers Authority, the San Mateo County Flood Control District and the Santa Clara Valley Water District ("Funding Agreement"), which details the amount, method and timing of financial contributions from San Mateo and Water District to be applied towards the cost of conducting the fluvial portion of the Study, and is attached as Exhibit B. G. East Palo Alto agreed by City Council action on November 15,2005 to provide up to $33,000 toward the local share of the Study for the particular purpose of including Tidal Option], as described in the FCSA, in the Study. H. Menlo Park agreed by City Council action on November 8, 2005 to provide up to $32,500 toward the local share of the Study for the particular purpose of including Tidal Option 1, as described in the FCSA, in the Study. I. The FCSA allows the Authority to credit staff time as in-kind services up to $592,800 toward the local share of the Study. J. The Joint Powers Agreement between the Parties authorizes the Authority to enter into contracts with its member agencies to perform any of the duties and responsibilities of the Authority. NOW, THEREFORE, in consideration of the foregoing recitals, and the terms and conditions in the sections contained herein below, the Parties agree, as follows: I. PROJECT DESCRIPTION AND MUTUAL OBJECTIVES A. Project Description The project is to conduct the Study as described in the Project Management Plan ("PMP") of the FCSA for a Flood Damage Reduction and Ecosystem Restoration ("FDRER") project for San Francisquito Creek and adjacent tidal areas. The Study will investigate the opportunities to reduce both fluvial (creek) and tidal flooding, which threaten public safety, and to restore ecosystem quality and function, where possible. The geographical area of the Study includes the entire watershed of San Francisquito Creek and tidal areas extending from the northernmost bay-shore point in Menlo Park to the southernmost bay-shore point in Palo Alto. The proposed area of the Study is shown on the map, which is attached as Exhibit C. The Study will also consider potential impacts to, and without- project conditions of, adjacent areas of influence that may not be contained within the proposed area ofthe Study. 921111-2 2 The Study is the second phase within the planning process of a Corps FDRER project. The Study will evaluate project alternatives in regard to cost, feasibility and environmental impacts. Significant elements of the Study include, but are not limited to, the following: 1. Environmental Documents: One element of the Study is the production of an Environmental Impact Statement ("ElS") in accordance with the National Environmental Policy Act ("NEPA".) The corresponding Environmental Impact Report, ("EIR"), required by CEQA, will be developed by the Parties at their own expense. The ElR is expected to use much of the same supporting material as the ElS and may in fact be nearly the same document. 2. Alternatives and. Engineering Evaluation: Various alternatives will be identified and scoped through suggestions and input from the Corps, the Authority and its member agencies, the public and other stakeholders. The Corps, with input from the staff of the Authority and its member agencies, will evaluate the feasibility of the alternatives with regards to engineering, costs, environmental impacts and other aspects important to the community. 3. Public Participation: The FDRER project is intended to result in flood damage reduction and ecosystem restoration within the San Francisquito Creek watershed, adjacent tidal and wetland areas, and their areas of influence. The Corps, the Authority and its member agencies have agreed that the community that lives within the watershed, tidal areas, and areas of influence must be involved in the development of the alternatives and the environmental documents, and that public outreach and participation is an important element of the Study. B. Mutual Objectives The Parties mutually agree to the following objectives of the Study: • Develop the Study to-best incorporate and address the concerns of the Authority and its member and associate member agencies, the public, and other stakeholders. • Develop a wide range of alternatives within the Study and strive to identify the alternative, or combination of alternatives, that provides the best flood reduction for the most people at the most reasonable cost. • Preserve and restore the natural environment of the creek corridor and tidal area as a habitable resource for wildlife. • Improve habitat for steelhead trout. • Explore opportunities for one or more trails, compatible with the riparian and marshy natural setting that will accommodate a variety of trail users, with appropriate routing of paths, points, overlooks, vegetation and screening. • Protect and restore riparian and aquatic habitat along the creek corridor. 921111-2 3 II. SPECIFIC PROVISIONS A. Purpose The Funding Agreement provides for the members of the Authority to enter into an implementation agreement with the Authority defining the roles and responsibilities of the members during the Study. This Agreement is the implementation agreement required by the Funding Agreement. The provisions of this Agreement shall supercede and control over any conflicting provisions in the Funding Agreement. B. Contributions Water District shall contribute $74,100 toward the local share of the Study for the particular purpose of including Tidal Option 2, as described in the FCSA, in the Study. Upon written request for full or partial payment of the local share for the Tidal Option 2, as'described in the FCSA, Water District shall deposit the requested amount of money in an escrow account managed by Authority. This contribution is in addition to Water District's contribution under the Funding Agreement. Water District shall not receive any credit or reimbursement for its financial contribution to the inclusion of Tidal Option 2 in the Study, nor shall East Palo Alto or Menlo Park receive any credit or reimbursement for their financial contributions to the inclusion of Tidal Option 1 in the Study, as described in Recitals G and H above. C. Cooperation in FCSA Implementation Each Party shall cooperate with and assist the Authority in the implementation of the FCSA, including providing any reports, studies, data or other documents and information prepared or held by a Party that may be relevant to the completion of the Study. No credit, reimbursement or other entitlement shall be provided to a Party for this type of general assistance. D. Management of FCSA and Study Except as specifically provided by this Agreement, the Authority, in its sole discretion, shall be responsible for the performance of the Authority's obligations under the FCSA related to conducting and overseeing the Study. The other Parties to this Agreement shall have no rights or obligations under the FCSA to conduct or oversee the Study, except as provided in this Agreement. San Mateo, Water District, East Palo Alto, Menlo Park and Palo Alto staffs are designated as members of Authority'S project management team ("Management Team") that will consult with and provide advice to the Authority'S Executive Director ("Director") on the implementation of the FCSA. The Parties shall provide appropriate representatives to the Management Team and participate in Management Team meetings and activities. E. Consensus Approval of Work Products The Director shall strive to obtain consensus for acceptance or approval of documents developed by the Corps or its consultants or actions regarding the Study from the Management Team. The individual Management Team members shall support the Management Team and the Director by providing timely review of documents and issues, and by providing information and material that promotes Management Team's work 921111·2 4 F. Local Outreach Plan The Authority shall develop a local public outreach plan to supplement the Corps' outreach plan for the Study. Public meetings related to the local public outreach plan and the Corps' outreach plan shall be supported by the member representatives of the Management Team. Support shall be rendered in the form of materials, venue, attendance, and/or presentations. Funding for the costs associated with the local outreach plan shall be secured by the Authority, outside of this Agreement, either as part of its annual operating budget or through additional financial contributions from the Authority's member agencies. III. GENERAL PROVISIONS A. Additional or Advance Funding or In-Kind Contributions Any funding for the Study in addition to what is stipulated within this Agreement or the Funding Agreement, or any funding advanced by any of the Parties for the purpose of conducting the Study at a pace greater than annual Congressional appropriations provide for, or any inwkind services or contributions rendered towards the Study on behalf of the Authority by any Party, shall be agreed to by an addendum or amendment to this Agreement as provided below. The source, timing, manner oftransaction, and administration of contributions for future credit or reimbursement for any additional or advanced funding or inwkind contribution shall be described in the addendum or amendment. An addendum to this Agreement may be proposed by any of the Parties. An addendum may be used only for additional or advance funding or inwkind contributions towards tasks that (1) are of a technical or planning nature and (2) have a cost estimate of less than or equal to $100,000 per task identified in the PMP. An addendum shall be approved in the following manner: 1. The Party proposing the addendum shall first obtain the approval of the Management Team. An addendum may be proposed by more than one Party and may include multiple tasks. After such approval by the Management Team is obtained, the proposing Party shall prepare an addendum that describes the following: a. The scope of work for additional funding or in-kind services to be provided, or the list of tasks identified in the PMP to be accelerated by advance funding. b. The timetable for the additional services or inwkind contribution to be performed. c. The amount of additional or advance funding that will be contributed or in-kind services that will be performed. d. The method of credit or reimbursement to the proposing Party. 921111-2 5 2. The proposed addendum shall not become effective until it is approved by the chief executive officer of each of the Parties, the Board of the Authority and the project manager of the Corps. Any other additional or advance funding or in-kind contribution not meeting the limitations on addendums described above shall be approved only as an amendment to this Agreement that is approved by the governing body of each Party. For additional or advance funding or in-kind contributions provided by San Mateo or Water District as part of an addendum or amendment, the actual costs up to the dollar amount specified in the addendum or amendment shall be credited by the Corps, upon the Corps' acceptance of the funded or provided work, against the next cost share invoice under the Funding Agreement. For additional or advance funding or in-kind contributions provided by East Palo Alto, Menlo Park or Palo Alto, the credit or reimbursement shall be provided in the manner described in the approved addendum or amendment B. Mutual Hold Harmless 1. Each Party shall defend, hold harmless and indemnify the other Parties, and their elected and appointed officials, officers, directors and employees from any and all claims for injuries or damages which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of that Party, and its elected and appointed officials, officers, directors and employees. 2. In the event of concurrent intentional or unintentional misconduct, negligent acts or omissions by the Parties (or any of their respective elected and appointed officials, officers, directors and employees), then the liability for any and all claims for injuries or damages to persons and property which arise out of terms and conditions of this Agreement shall be apportioned according to the California law of comparative negligence. 3. The duties and obligations of each Party as set forth in this Section HI.B shall survive and continue in full force and effect after the respective termination of the FCSA and this Agreement. C. Retention of Records. Right to Monitor and Audit The authority shall maintain all records for three (3) years after the Study is terminated or completed. The records shall be subject to the examination and/or audit of San Mateo, Water District, East Palo Alto, Menlo Park, and Palo Alto. The Authority shall comply with all program and fiscal reporting requirements set forth under the FCSA and as required by this Agreement. D. Termination of Agreement This Agreement shall automatically terminate one hundred and eighty (180) days after the completion of the Study or the termination of the FCSA, whichever first occurs. 921111-2 6 E. Notices Any notice or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial courier that provides a receipt, and addressed to the Parties at the addresses stated below, or at such other address as a Party may hereafter notify the other Parties in writing: Authority: San Mateo: Water District: East Palo Alto: Menlo Park: Palo Alto: San Francisquito Creek Joint Powers Authority 701 Laurel Street Menlo Park, California 94025 Attention: Cynthia D'Agosta, Executive Director Facsimile No.: (650) 328-7935 San Mateo County Flood Control District 555 County Center, 5th Floor Redwood City, CA 94063 Attention: Director of Public Works Facsimile No.: (650) 361-8220 Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118-3614 Attention: Stanley Williams, Chief Executive Officer Facsimile No.: (408) 445-1435 City of East Palo Alto 2415 University Avenue East Palo Alto, CA 94303 Attention: Alvin James, City Manager Facsimile No: (650) 853 -3115 City of Menlo Park 701 Laurel Street Menlo Park, CA 94025 Attention: David Boesch, City Manager Facsimile No: (650) 328-7935 City of Palo Alto Department of Public Works 250 Hamilton A venue Palo Alto, CA 94301 Attention: Glenn Roberts, Director of Public Works Facsimile No: (650) 329-2299 Service of any such notice or other communications so made shall be deemed effective on the day of actual delivery (whether accepted or refused) as evidenced by: a) confirmed 921111-2 7 answerback if by facsimile (provided that if any notice or other communication to be delivered by facsimile is unable to be transmitted because of a problem affecting the receiving party's facsimile machine, the deadline for receiving such notice or other communication shall be extended through the next business day); b) as shown by the addressee's return receipt if by certified mail; and c) as confirmed by the courier service ifby courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non~ business day, then such notice or demand so made shall be deemed effective on the first business day immediately following the day of actual delivery. No communications via electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder. F. Severability In the event any portion of this Agreement is declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect as fully as though such invalid, illegal or unenforceable portion had never been part of this Agreement. G. Governing Law and Compliance with Laws The Parties agree that California law shall govern this Agreement. In the performance of this Agreement each Party shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and applicable local government. H. Venue In the event that suit shall be brought by any Party, the Parties agree that venue shall be exclusively vested in the state courts of either the County of Santa Clara or the County of San Mateo, or when appropriate, in the United States Court, for the Northern District of California, in either the San Francisco or San Jose branch. I. Assignability and Subcontracting A Party shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required under this Agreement without the prior written consent of the other Parties or except as approved by the Board of Directors of Authority. J. Ownership of Materials All reports, documents, or other materials developed or discovered by any Party or any other person engaged directly or indirectly by any Party to perform the services required hereunder shall be and remain the mutual property of all Parties without restriction or limitation upon their use. K. Entire Agreement This Agreement constitutes the entire agreement between all the Parties with respect to this subject matter and supersedes all prior offers and negotiations, oral and written. This 921111-2 8 Agreement may not be amended or modified in any respect whatsoever except by an instrument in writing signed by authorized representatives of all the Parties. JL. COlllnterparts This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument. [This Remaining Space Intentionally Left Blank; Signatures Begin On The Next Page] 921111-2 9 IN WITNESS WHEREOF, the Authority, San Mateo, Water District, East Palo Alto, Menlo Park, and Palo Alto have duly executed this Agreement as of the date and year first above written. Authority: Date: 921111-2 10 '121111-2 SA.1" MATEO COUNTY FLOOD CONll' ROIJ STRI CT BY:~~1~·~",;1<- Date: \..1 q ! 01 ---.,t4-.. ~ .. ~------. ~jfqt§..2tl1ati~ (GO\lemMf\m Code S~C;fion 251(0) U ~rt1fv th.'lt a OOP" 01 the origflla I <1OCUITH'3n~ flrtlld II the Offioo (If thIS C!~fk of the P~ard of Su~roiscl'S r San Mateo County l'Ia~ ~n da!!V9f€ld to thE! ~f~sjd~ of thE'! Bearci of Sl.!~rvi~orst '~¥~~JtjC~_ .. ," • ':)I)Ulv CIp,!'V. of the BorH0 o{ SUf)(,:rvisor? VED AS Trt~RM: vJ l/v-----1 District Counsel SANTA CLARA VALLEY WATER JD>JI§TRICT d ~ " / By:_~~~~~~---,/..fI!. Nai Hsueh. Acting Chief Executive Officer Date: 101 -,:1.,j. -dltPlJ 6, -=--- 921111-2 12 APPROVED AS TO FORM: eJITY OlF lEA§T PALO ALTO City Attorney By: Date:# ___ _ 921111-2 13 J1jPDT~ City Attorney BY:---v<--r=---f:?'- 921111-2 14 APPROVED AS TO FORM.: C]TV OF lP'AlLO ALTO (y~~{Tlt.·t-~. 1 ~, . Senior Assistant City Attorney By:_--"---'t'If-__ ---:--'''---' ___ _ Date: t I :z./2 ej()) 7 II 921111-2 15 EXHIBIT A AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY FOR THE SAN FRANCISQUITO CREEK THIS AGREEMENT is entered into this day, of __ , 20--, by and between the Department of the Anny (hereinafter the "Government"), represented by the District Engineer executing this Agreement, and the San Francisquito Creek Joint Powers Authority (hereinafter the "Sponsor"), WITNESSETH, that WHEREAS, the U.S. House of Representatives Committee on Transportation and Infrastructure has requested the Secretary of the Anny, in accordance with Section 4 of the Flood Control Act of 1941, P.L. 77-228, 55 Stat. 638 (July 24, 1941), to conduct a study of the Guadalupe River and Tributaries, California, to detennine whether flood damage reduction, environmental restoration and protection, stonn water retention, water conservation and supply, recreation and other allied purposes are advisable in the interest of the San Fransciquito Creek Watershed, including San Francisquito Creek, Santa Clara and San Mateo Counties, California, pursuant to Resolution, San Francisquito Creek Watershed, California, Docket 2649, May 22,2002; WHEREAS, the U.S. House of Representatives Committee on Public Works and Transportation is authorized to direct commission of this feasibility study by resolution pursuant to the Rivers and Harbors Act of 1913,33 U.S.C. § 542 (2005); WHEREAS, the U.S. Anny Corps of Engineers has conducted a reconnaissance study of San Francisquito Creek in the interest of flood damage reduction, environmental restoration and protection, stonn water retention, water conservation and supply, recreation and other allied purposes pursuant to this authority, and has detennined that further study in the nature of a "Feasibility Phase Study" (hereinafter the "Study") is required to fulfill the intent of the study authority and to assess the extent of the Federal interest in participating in a solution to the identified problem; and WHEREAS, Section 105 of the Water Resources Development Act of 1986 (Public Law 99-662, as amended) specifies the cost sharing requirements applicable to the Study; WHEREAS, the Sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in study cost sharing and financing in accordance with the tenns of this Agreement; and WHEREAS, the Sponsor and the Government understand that entering into this Agreement in no way obligates either party to implement a project and that whether the Government supports a project authorization and budgets it for implementation depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies and with the budget priorities of the Administration; 1 NOW THEREFORE, the parties agree as follows: ARTICLE I -DEFINITIONS F or the purposes of this Agreement: A. The term "Study Costs" shall mean all disbursements by the Government pursuant to this Agreement,from Federal appropriations or from funds made available to the Government by the Sponsor, and all negotiated costs of work performed by the Sponsor pursuant to this Agreement. Study Costs shall include, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of participation in Study Management and Coordination in accordance with Article IV of this Agreement; the costs of contracts with third parties, including termination or suspension charges; and any termination or suspension costs (ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement. B. The term "estimated Study Costs" shall mean the estimated cost of performing the Study as of the effective date of this Agreement, as specified in Article 1I1.A. ofthis Agreement. C .. The term "excess Study Costs" shall mean Study Costs that exceed the estimated Study Costs and that do not result from mutual agreement of the parties, a change in Federal law that increases the cost of the Study, or a change in the scope of the Study requested by the Sponsor. D. The term "study period" shall mean the time period for conducting the Study, commencing with the release to the U.S. Army Corps of Engineers San Francisco District of initial Federal feasibility funds following the execution of this Agreement and ending when the Assistant Secretary of the Army (Civil Works) submits the feasibility report to the Office of Management and Budget (OMB) for review for consistency with the policies and programs of the President. E. The term "PMP" shall mean the Project Management Plan, which is attached to this Agreement and which shall not be considered binding on either party and is subject to change by the Government, in consultation with the Sponsor. F. The term "negotiated costs" shall mean the costs ofin-kind services to be provided by the Sponsor in accordance with the PMP. G. The term "fiscal year" shall mean one fiscal year ofthe Government. The Government fiscal year begins on October 1 and ends on September 30. ARTICLE II -OBLIGATIONS OF PARTIES A. The Government, using funds and in-kind services provided by the Sponsor and funds appropriated by the Congress of the United States, shall expeditiously prosecute and complete the Study, in accordance with the provisions of this Agreement and Federal laws, regulations, and policies. 2 B. In accordance with this Article and Article lILA., III.B. and IILC. of this Agreement, the Sponsor shall contribute cash and in-kind services equal to fifty (50) percent of Study Costs other than excess Study Costs. The Sponsor may, consistent with applicable law and regulations, contribute up to 50 percent of Study Costs through the provision of in-kind services. The in- kind services to be provided by the Sponsor, the estimated negotiated costs for those services, and the estimated schedule under which those services are to be provided are specified in the PMP. Negotiated costs shall be subject to an audit by the Government to determine reasonableness, allocability, and allowability. C. The Sponsor shall pay a fifty (50) percent share of excess Study Costs in accordance with Article III.D. of this Agreement. D. The Sponsor understands that the schedule of work may require the Sponsor to provide cash or in-kind services at a rate that may result in the Sponsor temporarily diverging from the obligations concerning cash and in-kind services specified in paragraph B. of this Article. Such temporary divergences shall be identified in the quarterly reports provided for in Article III.A. of this Agreement and shall not alter the obligations concerning costs and services specified in paragraph B. of this Article or the obligations concerning payment specified in Article III of this Agreement. E. If, upon the award of any contract or the performance of any in-house work for the Study by the Government or the Sponsor, cumulative financial obligations of the Government and the Sponsor would result in excess Study Costs, the Government and the Sponsor agree to defer award of that and all subsequent contracts, and performance of that and all subsequent in-house work, for the Study until the Government and the Sponsor agree to proceed. Should the Government and the sponsor require time to arrive at a decision, the Agreement will be suspended in accordance with Article X., for a period of not to exceed six months. In the event the Government and the sponsor have not reached an agreement to proceed by the end of their 6 month period, the Agreement may be subject to termination in accordance with Article X. F. No Federal funds may be used to meet the Sponsor's share of Study Costs unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. G. The award and management of any contract with a third party in furtherance of this Agreement which obligates Federal appropriations shall be exclusively within the control of the Government. The award and management of any contract by the Sponsor with a third party in furtherance of this Agreement which obligates funds of the Sponsor and does not obligate Federal appropriations shall be exclusively within the control of the Sponsor, but shall be subject to applicable Federal laws and regulations. H. The Sponsor shall be responsible for the total cost of developing a response plan for addressing any hazardous substances regulated under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767, (codified at 42 U.S.C. Sections 9601-9675), as amended, existing in, on, or under any lands, easements or rights-of-way that the Government determines to be required for the construction, operation, and maintenance of the project. Such costs shall not be included in total study costs. 3 ARTICLE III -METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties, current projections of Study Costs, current projections of each party's share of Study Costs, and current projections of the amount of Study Costs that will result in excess Study Costs. At least quarterly, the Government shall provide the Sponsor a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are $7,463,100 and the Sponsor's share of estimated Study Costs is $3,731,550. In order to meet the Sponsor's cash payment requirements for its share of estimated Study Costs, the Sponsor must provide a cash contribution currently estimated to be $3,731,550. The dollar amounts set forth in this Article are based upon the Government's best estimates, which reflect the scope of the study described in the PMP, projected costs, price-level changes, and anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Sponsor. B., The Sponsor shall provide its cash contribution required under Article II.B. of this Agreement in accordance with the following provisions: 1. For purposes of budget planning, the Government shall notify the Sponsor by September 1 of each year of the estimated funds that will be required from the Sponsor to meet the Sponsor's share of Study Costs for the upcoming fiscal year. 2. No later than 60 calendar days prior to the scheduled date for the Government's issuance of the solicitation for the first contract for the Study or for the Government's anticipated first significant in-house expenditure for the Study, the Government shall notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for the first fiscal year of the Study. No later 30 calendar days thereafter, the Sponsor shall verify to the satisfaction of the Government that the Sponsor has deposited the required funds in an escrow or other account acceptable to the Government, with interest accruing to the Sponsor. 3. For the second and subsequent fiscal years of the Study, the Government shall, no later than 60 calendar days prior to the beginning of the fiscal year, notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for that fiscal year, taking into account any temporary divergences identified under Article II.D of this Agreement. No later than 30 calendar days prior to the beginning of the fiscal year, the Sponsor shall make the full amount of the required funds available to the Government through the funding mechanism specified in paragraph B.2. of this Article. 4. The Government shall draw from the escrow or other account provided by the Sponsor such sums as the Government deems necessary to cover the Sponsor's share of contractual and in.;;house fiscal obligations attributable to the Study as they are incurred. 5. In the event the Government determines that the Sponsor must provide additional funds to meet its share of Study Costs, the Government shall so notify the Sponsor in writing. No later than 60 calendar days after receipt of such notice, the Sponsor shall make the full amount of the additional required funds available through the funding mechanism specified in paragraph B.2. of this Article. 4 C. Within ninety (90) days after the conclusion of the Study Period or termination of this Agreement, the Government shall conduct a final accounting of Study Costs, including disbursements by the Government of Federal funds, cash contributions by the Sponsor, the amount of any excess Study Costs, and credits for the negotiated costs of the Sponsor, and shall furnish the Sponsor with the results of this accounting. Within thirty (30) days thereafter, the Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if any, of cash contributions and credits given over its required share of Study Costs, other than excess Study Costs, or the Sponsor shall provide the Government any cash contributions required for the Sponsor to meet its required share of Study Costs other than excess Study Costs. D. The Sponsor shall provide its cash contribution for excess Study Costs as required under Article II.C. of this Agreement by delivering a check payable to "FAO, USAED, SAN FRANCISCO" to the District Engineer as follows: 1. After the project that is the subject of this Study has been authorized for construction, no later than the date on which a Project Cooperation Agreement is entered into for the project; or 2. In the event the project that is the subject of this Study is not authorized for construction by a date that is no later than 5 years of the date of the final report of the Chief of Engineers concerning the project, or by a date that is no later than 2 years after the date of the termination of the study, the Sponsor shall pay its share of excess costs on that date (5 years after the date of the Chief of Engineers or 2 year after the date of the termination of the study). ARTICLE IV -STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the Sponsor and the Government shall appoint named senior representatives to an Executive Committee. The Executive Committee shall include from the government, the District Engineer, Deputy District Engineer for Project Management, and the Chief, Planning/Engineering Division, and from the Sponsor, the Director ofthe San Francisquito Creek Joint Powers Committee, the Public Works Director of the San Mateo County Flood Control District, and the Lower Peninsula Watershed Manager of the Santa Clara Valley Water District. Thereafter, the Executive Committee shall meet regularly until the end of the Study Period. B. Until the end of the Study Period, the Executive Committee shall generally oversee the Study consistently with the PMP. C. The Executive Committee may make recommendations that it deems warranted to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Government has the discretion to accept, reject, or modifY the Executive Committee!s recommendations. D. The Executive Committee shall appoint representatives to serve on a Study Management Team. The Study Management Team shall keep the Executive Committee informed of the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the PMP. 5 E. The costs of participation in the Executive Committee (including the cost to serve on the Study Management Team) shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE V -DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. Such costs shall not be included in Study Costs. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI -MAINTENANCE OF RECORDS A. Within 60 days of the effective date of this Agreement, the Government and thy Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect total Study Costs. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 C.F.R. Section 33.20. The Government and the Sponsor shall maintain such books, records, documents, and other evidence in accordance with these procedures for a minimum of three years after completion of the Study and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the Sponsor shall each allow the other to inspect such books, documents, records, and other evidence. B. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Sponsor is required to conduct under the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits shall be included in total Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VII -RELATIONSHIP OF PARTIES The Government and the Sponsor act in independent capacities in the performance of their respective rights a~d obligations under this Agreement, and neither is to be considered the officer, agent, or employee of the other. ARTICLE VIII -OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. 6 ARTICLE IX -FEDERAL AND STATE LA WS In the exercise of the Sponsor's rights and obligations under this Agreement, the Sponsor agrees to comply with all applicable Federal and State laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Directive 5500.11 issued pursuant thereto and published in 32 C.F.R. Part 195, as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army". AR TICLE X -TERMINATION OR SUSPENSION A. This Agreement shall terminate at the conclusion of the Study Period, and neither the Government nor the Sponsor shall have any further obligations hereunder, except as provided in Article IIlC.; provided, that prior to such time and upon thirty (30) days written notice, either party may terminate or suspend this Agreement. In addition, the Government shall terminate this Agreement immediately upon any failure of the parties to agree to extend the study under Article ILE. of this agreement, or upon the failure of the sponsor to fulfill its obligation under Article III. of this Agreement. In the event that either party elects to terminate this Agreement, both parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article III.C. and III.D. of this Agreement. Upon termination of this Agreement, all data and information generated as part of the Study shall be made available to both parties. B. Any termination of this Agreement shall not relieve the parties ofliability for any obligations previously incurred, including the costs of closing out or transferring any existing contracts. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps of Engineers, San Francisco District. BY=·~~~~~~~~~ __ Pliilip T. E Lieutenant Colonel, Corps of Engineers District Engineer San Francisco District EK JOINT POWERS 8 EXHIBIT B Agreement for Funding a Feasibility Study for San Francisquito Creek Among the San Francisquito Creek Joint Powers Authority, the San Mateo County Flood Control District and the Santa Clara Valley Water District This Agreement ("Agreement") is made and entered into as of _, 2005, by and among the SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY, a California joint powers authority ("Authority"), the SAN MATEO COUNTY FLOOD CONTROL DISTRICT, a special district of the State ofCa:lifornia ("San Mateo"), and the SANTA CLARA VALLEY WATER DISTRICT, a special district of the State of California ("Santa Clara"), collectively referred to as Parties, or individually as Party. RECITALS A. San Francisquito Creek has a history of flooding the communities in and around East Palo Alto, Menlo Park and Palo Alto. The latest and the most damaging flood occurred in 1998. B. Following the flood of 1998, the cities of East Palo Alto, Menlo Park and Palo Alto along with the San Mateo County Flood Control District and the Santa Clara Valley Water District formed the San Francisquito Creek Joint Powers Authority on May 18, 1999. These entities are full members of the Authority. The Authority was authorized to represent its member agencies as the sponsor for a U.S. Corps of Engineers' ("Corps") flood control project on May 23,2002. C. The Corps, working with the Authority, which is considered the local sponsor, has completed a reconnaissance study for San Francisquito Creek. The reconnaissance study results indicated a Federal Interest in developing a flood control project for San Francisquito Creek. Therefore, the Corps plans to progress to the feasibility study (the "Study") phase ofthe San Francisquito Creek Flood Damage Reduction and Ecosystem Project (the "Project") which requires a cost sharing agreement with a local sponsor. D. The Authority is proposing to enter into a Feasibility Cost Share Agreement (FCSA) with the U.S. Department of the Army, San Francisco District of the Corps for a flood control project feasibility study of San Francisquito Creek. The Corps, pursuant to the FCSA, has agreed to initiate a project to evaluate flood protection within the San Francisquito Creek Watershed in Santa Clara and San Mateo Counties. E. The FCSA requires the Authority, as the project sponsor, to contribute to the Corps, in cash or in-kind services, fifty percent (50%) of the cost of the Corps' evaluation of flood control protection as the local share of the Study Costs as defined in the FCSA (the "Study Costs"). F. San Mateo and Santa Clara, on behalf of themselves and the other members of the Authority within their respective jurisdictions, on July 23, 2001, agreed to provide up to $1.5 million each as the local share to fund the Study Costs and the Authority Costs. 856737vl 1 G. The Parties understand that there will be an implementation agreement between all members of the JP A that will identify roles and responsibilities for the members during the feasibility phase ofthe Project (the "Implementation Agreement"). NOW, THEREFORE, in consideration of the foregoing recitals, and the covenants and conditions in the sections contained herein below, the parties agree as follows: AGREEMENT 1. Funding Payment and Amount San Mateo and Santa Clara agree to contribute up to One Million Five Hundred Thousand Dollars ($1,500,000.00) each to fund the Authority's contribution to the Study Costs. In connection with the Study Costs, San Mateo and Santa Clara shall each deposit into an escrow account as described in Section 2 of this Agreement, the amount requested, within twenty (20) days of receiving a request for payment from the Authority. Authority will make requests for payment in accordance with estimated costs provided by the Corps to meet the sponsor's share of Corps' costs for the succeeding fiscal year. Requests for payment from San Mateo and Santa Clara shall be in equal amounts and at the same time. Requests for payments, however, shall not be issued until an escrow account has been established as described in Section 2. The amount, method and timing of any credit for any approved in-kind services provided by either San Mateo or Santa Clara shall be as provided for in the Implementation Agreement that will be entered into after the FCSA is approved and executed by the Authority and the Corps. 2. Escrow Account The Authority shall establish an independent interest bearing escrow account to receive the cash contributions required for Study Costs. The escrow account shall be segregated from any Authority accounts. Escrow instructions for the escrow account must be approved by both San Mateo and Santa Clara before the escrow account is established. Any escrow account fees or charges shall be deducted equally from the cash contribution amount deposited by San Mateo and Santa Clara The escrow account shall be overseen by the Authority subject to disbursement as herein provided. Interest shall accrue and be held for the benefit of San Mateo and Santa Clara and shall be paid annually to San Mateo and Santa Clara. 3. Disbursement of Funds. The Authority shall review all requests for payment under the FCSA submitted by the Corps. Upon determining that a request for payment or portion of a request for payment is deemed appropriate and justified by Authority's Executive Director, Authority shall promptly issue escrow instructions to disburse funds from the escrow account to the payee. The Authority shall not disburse funds from the escrow account except in accordance with this Section. 856737vl 2 The Authority shall provide semi-annual reports to the participating JPA members of receipts and expenditures made to and from the escrow account. 4. Management of FCSA and Study. The Authority, in its sole discretion, shall be responsible for the performance ofthe Authority's obligations under the FCSA related to conducting and overseeing the Study. San Mateo and Santa Clara shall have no rights or obligations under the FCSA to conduct or oversee the Study, except as provided in this Agreement or as may be provided in the Implementation Agreement. San Mateo and Santa Clara are members of the Authority's project management team that will consult with and provide advice to the Executive Director on the implementation of the FCSA. 5. Mutual Hold Harmless. A. The Authority shall defend, hold harmless and indemnifY San Mateo and Santa Clara, their officers, directors and employees from any and all claims for injuries or damages which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of Authority, its officers, directors and/or employees. B. San Mateo shall defend, hold harmless, and indemnifY Santa Clara and the Authority, its officers, directors and employees from any and all claims for injuries or damages to persons and/or property which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of San Mateo, their officers, directors and/or employees. C. Santa Clara shall defend, hold harmless, and indemnifY San Mateo and the Authority, its officers, directors and employees from any and all claims for injuries or damage to persons and/or property which arise out of the terms and conditions of this Agreement and which result from the intentional or unintentional misconduct, negligent acts or omissions of Santa Clara, their officers, directors and/or employees. D. In the event of concurrent intentional or unintentional misconduct, negligent acts or omissions by San Mateo, Santa Clara and the Authority (or each of their respective officers, directors and/or employees), then the liability for any and all claims for injuries or damages to persons and/or property which arise out of terms and conditions of this Agreement shall be apportioned according to the California law of comparative negligence. E. The duties and obligations of this Section 5 shall survive and continue in full force and effect after the termination of the FCSA and this Agreement. 6. Retention of Records, Right to Monitor and Audit The Authority shall maintain all records for three (3) years after the Study is terminated or completed. The records shall be subject to the examination and/or audit of San Mateo and Santa Clara. Each year on January 2, or on a date mutually agreed to by the Parties and prior to termination and upon termination, the Authority shall submit to San Mateo and Santa Clara a 856737vl 3 statement of activities and balances for the escrow account to each party. The Authority shall comply with all program and fiscal reporting requirements set forth under the FCSA and as required by this Agreement. 7. Termination of Agreement. This Agreement shall automatically terminate one hundred and eighty (180) days after the completion of the Study or termination of the FCSA. 8. Refund of Undisbursed Funds. Undisbursed funds and interest shall be returned to San Mateo and Santa Clara within ninety (90) days of the completion of the Study or the termination of the FCSA and payment of all financial obligations of the Authority to the Corps under the FCSA. All undisbursed funds in the escrow account, including any interest earned thereon, shall be divided equally between San Mateo and Santa Clara. 9. Notices. Any notice or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other parties in writing: Authority: San Mateo: Santa Clara: San Francisquito Creek Joint Powers Authority 701 Laurel Street Menlo Park, California 94025 Attention: Cynthia D' Agosta, Executive Director Facsimile No.: (650) 328-7935 San Mateo County Flood Control District 555 County Center, 5th Floor Redwood City, CA 94063 Attention: Director of Public Works Facsimile No.: (650) 361-8220 Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118-3614 Attention: Stanley Williams, Chief Executive Officer Facsimile No.: (408) 445-1435 Service of any such notice or other communications so made shall be deemed effective on the day of actual delivery (whether accepted or refused) as evidenced by: a) confirmed answerback ifby facsimile (provided that ifany notice or other communication to be delivered 856737vl 4 by facsimile is unable to be transmitted because of a problem affecting the receiving party's facsimile machine, the deadline for receiving such notice or other communication shall be extended through the next business day), b) as shown by the addressee's return receipt ifby certified mail, and c) as confirmed by the courier service if by courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non-business day, then such notice or demand so made shall be deemed effective on the first business day immediately following the day of actual delivery. No communications via electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder. 10. Severability. In the event any portion of this Agreement is declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect as fully as though such invalid, illegal or unenforceable portion had never been part of this Agreement. 11. Governing Law and Compliance with Laws The parties agree that California law shall govern this Agreement. In the performance of this Agreement each party shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and applicable local government. 12. Venue In the event that suit shall be brought by any party to this contract, the parties agree that venue shall be exclusively vested in the state courts of either the County of Santa Clara, or the County of San Mateo or where otherwise appropriate, exclusively in the United States Court, Northern District of California, in either Redwood City or San Jose, California. 13. Assignability and Subcontracting. Parties shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required under this Agreement without the prior written consent of the other parties. Notwithstanding, Authority may contract with an accounting firm or an escrow company to fulfill its obligations under Section 2. 14. Ownership of Materials All reports, documents, or other materials developed or discovered by any Party or any other person engaged directly or indirectly by any Party to perform the services required hereunder shall be and remain the mutual property of all Parties without restriction or limitation upon their use. 15. Entire Agreement This Agreement constitutes the entire agreement between the Authority, San Mateo and 856737vl 5 Santa Clara with respect to the subject matter hereof and supersedes all prior offers and negotiations, oral and written. This Agreement may not be amended or modified in any respect whatsoever except by an instrument in writing signed by authorized representatives of the Authority, San Mateo and Santa Clara. 16. Further Actions. The Authority, San Mateo and Santa Clara agree to execute all instruments and documents, and to take all actions, as may be reasonably required to consummate the transaction contemplated by this Agreement. This agreement shall be in full force and effect only upon execution of the FCSA by the Authority. 17. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument. [This Remaining Space Intentionally Left Blank; Signatures Begin On The Next Page] 856737vl 6 ( ( IN WITNESS WHEREOF, the Authority, San Mateo and Santa Clara have executed this , . Funding Agreement as of the date and year first above written. Authority: APPROVED AS TO FORM: General Counsel ATTEST: 856737vl ......---.-.,.,:0 CREEK JOINT POWERS SAN MATEO COUNTY FLOOD CONTROL DISTRICT By: _/);t,---,--'~!/ ·dt----\-- Richard Gordon President, Board of Supervisors Date: \\ -2 -D6 SANTA CLARA VALLEY WATER CONTROL DISTRICT Stanle Chief Date: __ I/ dt-z-4tt_v_( ___ _ 7 TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: COMMUNITY SERVICES DATE: JUNE 8, 2009 CMR: 265:09 REPORT TYPE: CONSENT SUBJECT: Approval of Contract with Palo Alto Unified School District (PAUSD) in which the City of Palo Alto will Provide Fiscal Services for the PAUSD Summer Enrichment Programs and Provide a Collaborative After-School Program RECOMMENDA TION Staff recommends that Council approve and authorize the City Manager or designee to execute the attached contract with the Palo Alto Unified School District (PAUSD) authorizing the City of Palo Alto to act as fiscal agent for PAUSD's summer enrichment program; and, working in collaboration with PAUSD, provide an after-school camp program and a variety of other summer programs on P AUSD sites. DISCUSSION In 2001, it was agreed that the City and PAUSD collaborate in order to facilitate summer enrichment programs for P AUSD students. The collaboration is evaluated annually and continues to be very successful. The terms and conditions under this new contract are the same as the previous three year contract and will also have a three year term 2009-11. The City will act as a fiscal agent for PAUSD's summer enrichment classes at selected schools. PAUSD will collect the checks and credit card forms made payable to the City and deliver them to the City. The City will deposit the checks and credit card charges into the General Fund, and return 92 percent of the revenue collected to PAUSD, while retaining the remaining 8 percent as administrative fees for its fiscal services. In 2008 the City processed $558,490 for PAUSD's summer enrichment classes for approximately 1,400 participants. Similar summer enrichment enrollment is expected in 2009-11. In addition to the City acting as the fiscal agent for PAUSD's summer enrichment classes PAUSD and the City's Recreation Division will again work collaborative1y to provide a summer enrichment/recreation camp during the summer school period. The 2009 summer enrichmentlrecreation _camp is titled "Coastal Adventures" This two-week ca.IllP-is~ CMR: 265:09 Page 1 of2 introduction to the concepts of marine science, including biology, oceanography, and ecology. Students will have a hands-on exploration of California's coastal marine life, by examining invertebrates, plants, fish, plankton, birds and mammals in varied underwater and coastal environments. Students will start each day in the classroom and then will embark on several exciting and educational field trips including the Coastal Baylands, Monterey Bay Aquarium, Seymour Marine Discovery Center and Half Moon Bay in the afternoon. We expect approximately 50 participants over two sessions of camp. Participant fees for the summer enrichment/recreation camp will be used to cover all P AUSD and City expenses and any net income will be distributed evenly between PAUSD and the City. RESOURCE IMPACT The contract will generate sufficient revenues to offset the expense of providing this service. The current budget has the revenue and expense in its base, and therefore a Budget Amendment Ordinance is not required. POLICY IMPLICATIONS The recommendation in this report is consistent with current City policies. ENVIRONMENTAL REVIEW This contract is not a project as defined by the California Environmental Quality Act (CEQA) and is not subject to CEQA requirements. ATTACHMENTS Attachment A: PREP ARED BY: Contract DEPARTMENT HEAD: CITY MANAGER APPROVAL: CMR: 265:09 / ROBDEGEUS Division Manager, Recreation & Golf GREG BETTS Interim Director of Community Services 20f2 AGREEMENT ANNUAL SUMMERENIDCHMENT PROGRAM BETWEEN THE CITY OF PALO ALTO AND THE PALO ALTO UNIFIED SCHOOL DISTRICT This Agreement ("Agreement") is entered into , 2009, by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("CITY") and the PALO ALTO UNIFIED SCHOOL DISTRICT, a unified school district of the State of California, with offices at 25 Churchill Avenue, Palo Alto, California 94306 ("DISTRlCT"). RECITALS WHEREAS, CITY and DISTRICT will be providing a summer enrichment program at various schools within the CITY, including DISTRICT elementary, middle and high schools on an ongoing basis; and WHEREAS, CITY and DISTRICT have agreed to work collaboratively on a program, whereby CITY will sponsor an after school program in conjunction with the summer enrichment school program; and WHEREAS, DISTRICT students have an opportunity for an enriching learning experience during the summer months and CITY residents have the opportunity to participate in recreational and learning activities. NOW, THEREFORE, in consideration of the following covenants, terms, and conditions, the parties agree as follows: 1. DISTRICT shall provide summer enrichment classes in accordance with, and subject to all applicable standards and obligations required of a public school district, at the DISTRICT elementary, middle and high schools. 2. This Agreement shall have a term ofthree years commencing June 15, 2009, that shall be renewed upon the anniversary date of the effective date of this Agreement, unless otherwise agreed to by the parties. 3. At the start of each contract year and prior to offering any classes to the public, DISTRICT and CITY shall agree in writing as to the summer enrichment classes to be offered and in the start and end dates of each summer enrichment program to be offered that year. 4. In addition, DISTRICT and CITY shall from time to time offer new summer enrichment camps. DISTRICT and CITY shall agree in writing which camps it will provide and the dates the camps will be held prior to offering camps to the pUblic. DISTRICT shall provide summer enrichment classes which shall be scheduled from 8:30 a.m. to 12:30 p.m., Monday through Friday. CITY's Recreation and Golf Services Division shall provide after summer _-enri~Am~t camp activ~t~_~~wipants a~ding camps from 12:JO.p.m. to 5:30 p.m. The -_ ....... _-- 090408 jb 0073145 activities will include a variety of recreation programs and field trips. The program will be held at various DISTRICT sites within the CITY to be agreed upon by the parties. 5. DISTRICT shall provide six (6) classrooms for the camps and classes, at no cost to the CITY beyond the administrative fee payable pursuant to paragraph 6 while summer costs for camps and classes held while DISTRICT summer school is not in session. All CITY camps held at DISTRICT sites will end on the last Friday of July. unless otherwise agreed by the parties. 6. DISTRICT shall collect the checks, and credit card forms made in payment for the summer enrichment classes, excluding any camps at various DISTRICT school sites, which will be made payable to the CITY, and deliver them to CITY in a manner approved by the CITY's Revenue Collections Division. CITY will deposit checks, and credit card payments into the CITY's General Fund. CITY shall prepare and provide to DISTRICT an accounting of the deposits, and shall return 92% of the total to DISTRICT, and shall retain the remaining eight percent (8%) as an administrative fee for its fiscal services. All supporting documentation relating to CITY's role as fiscal agent for DISTRICT will be available for review by DISTRICT upon request. CITY will directly collect and handle all fees for its after school programs. Participants enrolling in any summer enrichment camps will sign up through CITY's registration process. CITY will deposit checks into the CITY's General Fund. CITY shall prepare and provide to DISTRICT an accounting of all revenues and expenses for all camps. Revenue will be used to cover all camp expenses and any net income will be distributed evenly between the DISTRICT and CITY's Recreation Division. 7. DISTRICT agrees to indemnify, defend and hold harmless CITY and its council members, officers, employees, and board and commission members from and against any and all loss, damage, claim or liability (including, without limitation, reasonable attorneys' fees) arising or alleged to arise out of DISTRICT's negligent acts, errors or omissions under this Agreement. DISTRICT will obtain and maintain, in fuJI force and effect during the term of this Agreement, the insurance coverage described in Exhibit "A," insuring not only DISTRICT and its contractors, if any, but also, with the exception of workers' compensation and employer's liability, naming CITY as an additional insured concerning DISTRICT's obligations under this Agreement. 8. CITY agrees to indemnify, defend and hold harmless DISTRICT and its' officers, employees, and board and commission members from and against any and all loss, damage, claim or liability (including, without limitation, reasonable attorneys' fees) arising or alleged to arise out of CITY's negligent acts, errors or omissions under this Agreement. CITY will obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit "B/' with the exception of workers' compensation and employer's liability, naming DISTRICT as an additional insured concerning CITY'S obligations under this Agreement. Evidence of adequate self·insurance shall be acceptable compl iance with this requirement. 9. All notices shall be submitted, in writing, and sent by the United States mail, certified and postase-prepaid by private express delivery iervice, by facsimile transmission 090408 Jb 0073145 2 followed by delivery of hard copy, or by any other process mutually acceptable to the parties to the addl'esses stated below or to any other address noticed in writing. To CITY: With a copy to: To DISTRICT: Office of the City Clerk City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 Recreation Division Manager 1305 Middlefield Rd. Palo Alto, CA 9430 I Superintendent Palo Alto Unified School District 25 Churchill Avenue Palo Alto, CA 94306 10. This Agreement shall be governed by and construed in accordance with the laws of the State of California. J I. Either Party may terminate this agreement upon 120 days notice, with or without cause by providing written notice to the other party of its intent to terminate this agreement. 12. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. 13. This Agreement constitutes the entire agreement between the parties concerning its subject matter, and there are no other oral or written agreements between the parties not incorporated in this agreement. 14. This Agreement shall not be modified, unless the parties first agree to and approve of such modification in writing through a duly authorized amendment. 15. If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the unaffected provisions of this Agreement shall remain in effect. 16. The prevailing party in any action brought to enforce the terms of this Agreement may recover from the other party its reasonable costs and attorney's fees expended in connection with such an action. 17. Both parties shall give their personal attention to the faithful performance of this Agreement and shall not assign, transfer, convey, or otherwise dispose of this Agreement or any right, title or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may required. A consent to one assignment shall not be deemed to be such a consent to any subsequent -assignments. Any assignmont without such approval shall void and, at the option of the other party;snarrtermInate thIS Agreemimt ana anylicenseor privilege granted herein. fhis 090408 jb 0073145 3 Agreement and any interest herein shall not be assigned by operation of law without the prior written consent of the other party. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. APPROVED AS TO FORM: Senior Asst. City Attorney APPROVED: Director of Administrative Services Risk Manager CITY OF PALO ALTO City Manager PALO ALTO UNIFIED SCHOOL DISTRICT By: ---------------------- Name: Title: Attachments: Exhibit "A": District's Insurance Requirements Exhibit "B": City's Insurance Requirements 090408 Jb 0073145 4 ---------------------- ------------------------- City of Palo Alto MEMORANDUM TO: City Council DATE: June 08, 2009 SUBJECT: Budget Adoption Ordinance (CMR 280:09) The attached CMR 280:09 is being provided in this packet without any of the noted attachments, except for Exhibit B to Attachment 1 (Amendments to City Manager's Proposed Budget) as a reference for the City Council's discussion of the Budget Adoption Recommendations on June 8, 2009 The final CMR with all attachments along with any changes that are proposed during the June 8, 2009 public hearing will be included in the packet for June 15, 2009. Budget Adoption is scheduled for June 15, 2009 BUDGET FY 2010 & FY 2011 TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: ADMINISTRATIVE SERVICES DATE: JUNE 08, 2009 CMR: 280:09 REPORT TYPE: Public Hearing SUBJECT: Approval of an Ordinance Adopting the Fiscal Years 2010 and 2011 Budget, Including the Fiscal Year 2010 Capital Improvement Program, Changes to the Municipal Fee Schedule, Utility Rates and Charges, and Changes To Compensation Plans EXECUTIVE SUMMARY The documents attached outline the amendments to the City's Operating and Capital Fiscal Year 2010 and 2011 Proposed Budgets, Municipal Fee Schedule, Utility Rate changes, and amendments to two of the City's Compensation Plans. The City Council will first review these documents on June 8, 2009. The Public Hearing will be continued to June 15, at which point the Council will be asked to adopt the FY 2010 and 2011 budgets and other associated actions. RECOMMENDATION Staff recommends that the City Council approve the following: 1. The Budget Adoption Ordinance (Attachment 1), which includes: a. The City Manager's Fiscal Years 2010 and 2011 Proposed Budget (Exhibit A - previously distributed) b. All changes detailed in the Amendments to the City Manager's Fiscal Years 2010 and 2011 Proposed Budget (Exhibit B) c. Fiscal Year 2010 Proposed Municipal Fee Schedule (Exhibit C -previously distributed) d. Revised pages to the Table of Organization (Exhibit D) e. Amendments to the Fiscal Year 2010 Proposed Municipal Fee Schedule (Exhibit E) 2. Resolution Amending Utility Rate Schedules for a Refuse Rate Increase (Attachment 2) 3. Resolution Amending Utility Rate Schedules for a Water Rate Increase (Attachment 3) CMR:280:09 Page 1 of 12 4. Resolution Amending Utility Rate Schedules for a Wastewater Collection Rate Increase (Attachment 4) 5. Resolution Amending Utility Rate Schedules for a Gas Rate Decrease (Attachment 5) 6. Resolution Amending Utility Rate Schedules for an Electric Rate Increase (Attachment 6) 7. Resolution Amending Utility Rate Schedules for Utility Service Rate changes (Attachment 7) 8. Resolution Amending Utility Rate Schedules for Fiber Optic Rate increases (Attachment 8) 9. Resolution Amending Utility Rate Schedules for the Residential Rate Assistance Program changes (Attachment 9) 10. Resolution Amending the Compensation Plan for Management and Professional Personnel and Council Appointed Officers (Attachment 10) 11. Resolution Amending the Compensation Plan for Service Employees International Union (SEIU) (Attachment 11) BACKGROUND The City Manager's Fiscal Years 2010 and 2011 Proposed Operating Budget and the Fiscal Years 2010 and 2011 Proposed Capital Budget was initially submitted to City Council on April 27, 2009. During the month of May, the Finance Committee held hearings and reviewed the Proposed Budget, including the General Fund, Enterprise Funds, Internal Service Funds, Capital Improvement Programs, and the Municipal Fee Schedule. A total of seven public hearings were held on May 5, 7, 12, 13, 19,26 and 28 during which the Committee reviewed and discussed the City'S operating and capital expenditures for the next two years. As a result of the hearings, the Finance Committee and staff have recommended changes to the Proposed Budget as detailed in Exhibit B. It is important to note that the Fiscal Year 2011 budget is adopted "in-concept" with the attached ordinance (Attachment 1). The Fiscal Year 2011 spending plan will be reviewed and modified as necessary during the interim budget cycle next year. DISCUSSION This staff report focuses primarily on the financial changes recommended by the Finance Committee during the public hearing process and the budget adjustments proposed by staff following submission of the original proposed budget. Certain key non-financial changes are also highlighted in this report. All other non-financial recommended changes to the proposed budget are described in Appendix 4, which was distributed to the Finance Committee on May 26, and will be incorporated into the Fiscal Years 2010 and 2011 Adopted Budget document. Included in the City Manager's FY 2010 Proposed Budget is a $3 million placeholder credit for anticipated employee compensation reductions. The Palo Alto Police Officers Association CMR:280:09 Page 2 of 12 (PAPOA) has agreed to defer its previously negotiated 6 percent salary increase for one year. This results in an expenditure reduction of $ 794,068 which reduces the placeholder credit to $2.2 million. These changes have been noted in the Exhibit B attachment. The International Association of Fire Fighters (IAFF) has proposed a similar reduction; however it has not been finalized at this time. Staff wi1l continue negotiations and discussions with the Service Employee International Union (SEIU) and ManagementiProfessionallabor groups post budget adoption. Additionally, the Finance Committee directed staff to report back during Fiscal Year 2010 on the following issues: • Evaluation of the future organization of the Office of Emergency Services (OES), including consolidation and coordination • Regionalization options for Public Safety functions • A review of the Capital Improvement Plan review and selection process and to incorporate input from the Planning and Transportation Commission and public • Encourage staff to request price discounts on contacts • Staff to return with Police and Fire Overtime trends and incorporation information into quarterly financial reports. The five-year trend information that was requested by the Finance Committee has been included at the end of this report • Staff to provide Planning and Transportation Commission with quarterly overtime reports as it relates to PTC meeting coverage by non-exempt staff • City Manager to review General Fund training budgets and reduce by 10 percent for discretionary training where possible • City Manager to review Enterprise Fund training and travel budgets and reduce by 10 percent for discretionary training where possible The following table summarizes the financial impacts to the General Fund due to the changes presented in this memorandum: CMR:280:09 Page 3 of 12 General Fund FY 2010 FY2011 Beginning balance $571,000 ($3,082,000) Chanees to Revenue Remove New Parking Revenue for Foothills Pk. ($150,000) ($150,000) Increase Golf Course Revenue $148,170 $148,170 Restore BLS Program Revenue $236,000 $236,000 I Net Changes to Revenue . Increase $234,170 $234,170 · Chanees to Exoenditures i Increase to City Council Contingency ** $43,000 $43,000 • Increase to City Manager Contingency ** $84,100 $84,100 Reallocation of .5 PTE from PWD to CIP** ($46,160) ($46,160) Remove Asst. Director of Planning ($236,280) ($236,280) I Increase to City Manager Budget -Sustainability $32,000 $32,000 • Remove cost increase for CAO evaluator ($11,000) ($11,000) , Restore Funding for Twilight Concerts $41,000 $41,000 Decrease Golf Course Expenses ($11,099) ($11,099) Restore BLS Program Expense $108,000 $108,000 V2 Estimated savings for sustainability efforts ($132,182) ($132,182) 20 percent travel reduction ($35,500) ($35,500) Reduce GF transfer to Capital Fund (additional) ($1,000,000) Net Changes to Expenditures -Decrease ($1,164,121) ($164,121) Net Change $1,398,291 $398,291 Reduction of Bridge (one-time) options ($1,900,000) Ending Balance $69,291 ($2,683,709) Staff Recommendati ons* * Finance Committee-Recommended Changes to the City Manager's Proposed Budget The Finance Committee recommends the following changes based on new information following submittal of the original proposed budget. General Fund Office of the City Manager • Increase budget by $32,000 for both Fiscal Years 2010 and 2011 for the Sustainability Program. The Finance Committee recommended the ongoing increase instead of a one- time transfer from the Council contingency account. City Council • Remove cost increase for outside CAO evaluator contract, results in an expense reduction of ($11,000). The Finance Committee indicated that this expense should come out of the Council contingency account, if the Council moves forward with hiring an outside evaluator. CMR:280;09 Page 4 of 12 Community Services Department • Restore salary and benefit funding of $95,941 for 1.0 FIE Coordinator Recreational Programs for the Family Resources Program. This includes a Fiscal Year 2010 one-time revenue reimbursement of $95,941 from the Family Resources Foundation. In addition, if the Foundation is unable to meet the annual reimbursement expense, the difference would be considered a loan for the next fiscal year. • Restore the funding for the Twilight Concert Series in the amount of $41,000. • Remove the recommended parking fee revenue for the Baylands and Foothills Park, resulting in a ($150,000) decrease in revenue. • Recommend an increase to revenue and/or reduce expenditures at the Golf Course to bring it to a break-even point, resulting in a revenue increase of $148,170 and an expense reduction of ($11,099). Fire Department • Restore revenue and expense for Basic Life Support (BLS) program. This results in a net change of $108,000 which is comprised of a revenue increase of $236,000 and an expense increase of $108,000. This includes the elimination of 3 EMT BasiclBLS Transport FIE, with the on-going program staffed with temporary positions. Planning and Community Environment Department • Eliminate Assistant Director of Planning position, resulting in salary and benefit expense reduction of $236,280. Non-Departmental • Include one-half of the estimated utility savings related to the General Fund for sustainability efforts in the budget, resulting in an expense reduction of ($132,182). Allocation to departments to be determined by the City Manager. • Reduce travel expenditures by 20 percent resulting in an expenditure reduction of ($35,500). Allocation to departments to be determined by the City Manager. • Reduce the General Fund transfer to the Infrastructure Reserve by an addition ($1 million). This anticipates cost savings or timing adjustments in capital programs resulting in potential savings. • In FY 2010, reduce the budgeted one-time bridging options credit of $3.1 million by ($1 million). This is based on savings in the previous bulleted item. • Move $794,068 out of the budgeted $3 million placeholder for employee compensation reductions out of non-departmental and in to the Police Department. This is to recognize PAPOA's approved deferral of their FY 2010 negotiated salary increase of 6 percent. Capital Projects Fund -Infrastructure/CIP • Increase funding for the Highway 10 1 PedestrianlBicycle OverpassfUnderpass project (CIP PL-II000) in Fiscal Year 2010 by $100,000 and decrease funding for this project by $100,000 in Fiscal Year 2011. • Reduce the Infrastructure Reserve transfer from the General Fund transfer by an additional $1 million. CMR:280:09 Page 5 of 12 Enterprise Funds • Include one-half of the estimated utility savings related to the Enterprise Funds for sustainability efforts into the budget, resulting in an expense reduction of $202,609. Allocation to Funds to be determined by the City Manager. • Include one-half of the estimated City-wide utility savings for sustainability efforts into the budget, resulting in a revenue reduction of $334,926. Staff-Recommended Changes to the City Manager's Proposed Budget Staff recommends the following changes based on new information following submittal of the original proposed budget. General Fund City Council Contingency • Proposed $43,000 increase in Fiscal Years 2010 and 2011 to the City Council Contingency account to last year's level. City Council Contingency Account Status FY 2010 FY 2011 Be~innin~ balance $207,000 $207,000 Increase to Contingency base budget $43,000 $43,000 Ending Balance $250,000 $250,000 City Manager Contingency • The City Manager's Contingency Account will be increased $84,100 in Fiscal Years 2010 and 2011 to last year's level. City Manager's Contingency Account Status FY2010 FY 2011 Beginning balance .$165,900 $165,900 Increase to Contingency base budget $84,100 $84,100 Ending Balance $250,000 $250,000 Public Works Department • Reallocate 0.5 FTE Administrative Associate III to the Capital Fund, resulting in an expense decrease of $46,160 to the General Fund Public Works Operating budget. Budget Process -Finance Committee "Parking Lot" Issues • During the Finance Committee's review of the Proposed Budget, items or ideas for further budget changes were placed in a "parking lot" if two or more committee members agreed. Parking lot items that received a majority vote were moved into the Finance Committee recommended changes to the Proposed Budget and incorporated into the table above. Other items were either withdrawn by the maker, or did not receive a majority of votes to become permanent reductions. Those items left in the parking lot are described below. CMR:280:09 Page 6 of 12 o Review reducing 1 Attorney and 1 Support Staff from the Attorney's Office Withdrawn o Reduce the Police Department expenditures by $500,000 (flat amount) -Defer review until first quarter financial results o Reduce the Police Department expenditures by $492,000 (specific changes) - Defer review until first quarter financial results o Planning department to return with the impact of removing two planners in current planning -Did not receive a majority of votes o Eliminate reduction for Comprehensive Plan extension incorporated into the budget -Did not receive a majority of votes o Defer Storm Drainage Fund FY 2010 short-term loan repayment to the General Fund -Withdrawn Capital Project Fund -InfrastructureiCIP • The following items were presented to the Finance Committee with the May 19, 2009 "at-places" memo: o New CIP Project Highway 10 1 PedestrianlBicycle OverpasslUnderpass Project (PL-11000): Funding of $100,000 will be provided by infrastructure reserve. o Additional funding of $300,000 to the Mobile Command Vehicle Project (PD- 07000) from Federal and Local agency grants. o Additional funding of $135,513 to the Street Maintenance CIP Project (PE- 86070) from State Proposition 42 funds. o Change to the Drying Beds, Material Storage and Transfer Area CIP Project (RF- 10003): Project start date is moved to FY 2011 from FY 2010 and funding is now split between the Refuse and Wastewater Collection Fund. The Storm Drainage Fund will not provide funding for this project. o Increase funding for AS-10000 (Salary and Benefits project) to reflect the reallocation of 0.5 FTE Administrative Associate III from the General Fund, $46,160 • Summary of Sources of Funding detailed above: Infrastructure Reserve $146,160; Other Agencies/Outside funding $435,513 Enterprise Funds Electric Fund • Increase Other Income $100,000 in FY 2010 and $400,000 in FY 2011 to correct the Central Valley Loan Repayment amount. • Increase Utility Purchases $100,000 in FY 2010 and $400,000 in FY 2011 to correct the Central Valley Loan Repayment amount. • Increase Net Sales $2.5 million in FY 2011 due to an inadvertent omission. Net Change to the Electric Fund: FY 2010 $0.00 FY 2011 $2.5 million increase in revenue Gas Fund • Increase Net Sales $142,000 in FY 2010 and FY 2011 • Increase Demand-side program expenditures $135,700 in FY 2010 and $146,440 in FY 2011 CMR:280:09 Page 7 of 12 Net Change to the Gas Fund: FY 2010 $6,300 FY 2011 ($4,440) Water Fund • Increase Demand-side program expenditures $45,300 in FY 2010 and $80,279 in FY 2011 Wastewater Collection Fund • Increase Net Sales $20,000 in FY 2010 • Decrease Operating Transfers to the Refuse Fund in FY 2010 by $250,000 and Increase Operating Transfers from the Refuse Fund in FY 2011 by $375,000. The start date for CIP RF-10003 (Drying Beds, Material Storage and Transfer Area) has been moved from FY 2010 to FY 2011 and the funding for the project has changed from one-third to one- half for the Wastewater Collection Fund. Storm Drainage Fund • Decrease Operating Transfers from the Refuse Fund in FY 2010 by $250,000. This results from changes to CIP RF-10003. The Storm Drainage fund will not be providing funding for this project. Refuse Fund • Decrease Operating Transfers from the Wastewater Collection Fund in FY 2010 by $250,000 and Increase Operating Transfers from the Wastewater Collection Fund in FY 2011 by $375,000. The start date for CIP RF-loo03 has been moved from FY 2010 to FY 2011 and the funding for the project has changed from one-third to one-half for the Wastewater Collection Fund. The Storm Drainage Fund will no longer provide funding for this project. Wastewater Treatment Fund • Decrease allocated charges $3.8 million in the FY 2007-08 "Actuals" column on page 335 due to a posting omission. Special Revenue Funds Developer's Impact Fees • Correction to the presentation of Community Development Funds CIP transfer. The funding allocation for CIP PE-06007 Park Restroom Installation was deferred to FY 2011 and the funding allocation for CIP PE-07007 Cubberley was moved forward to FY 2009 during the FY 2009 midyear process. Housing In-Lieu • Allocate budget for affordable housing projects to be determined in FY 2010, $100,000. Compensation Plans Five classification and two compensation changes are proposed in the Management and Confidential and Service Employees' International Union (SEru) Compensation Plans. New or CMR:280:09 Page 8 of 12 changed classifications are included, along with the accompanying resolutions in Attachments 10 and 11. Table of Organization Amended pages to the Fiscal Years 2010 and 2011 Table of Organization are included with this report (Exhibit D). The table has been revised to reflect the staffing changes presented in this report. Changes reflected in the Table of Organization will be incorporated into the relevant department organization charts and the revised organization charts will be published in the adopted budget. Contracts Greater Than $85,000 On May 26, 2009, the Finance Committee approved the Fiscal Year 2010 contract scopes of professional services agreements greater than $85,000 (CMR 248:09). RESOURCE IMPACT The Fiscal Years 2010 and 2011 Proposed Budget as submitted to the Finance Committee resulted in an increase to the General Fund Budget Stabilization Reserve (BSR) of $0.6 million in Fiscal Year 2010 and a $3.1 million decrease in Fiscal Year 2011. The changes resulting from the Finance Committee hearings and staff recommendations resulted in a $1.9 million reduction to the Bridge (one-time) options in Fiscal Year 201 0 and an $0.4 million increase to BSR funding in Fiscal Year 2011 (Appendix 1). The projected ending balances for the BSR in Fiscal Year 2010 and 2011 are $22.8 million and $20.1 million, respectively. As a result of the changes to the capital budget, the projected ending balances in the Infrastructure Reserve (IR) for Fiscal Year 2010 and 2011 are $5.2 million and $1.6 million, respectively. Additional changes to the Enterprise Funds result in an approximate $0.6 million increase in reserve balances in Fiscal Year 2010 and a $1.6 million increase in Fiscal Year 2011 from the proposed document (Appendix 2). POLICY IMPLICATIONS These recommendations are consistent with existing City policies. ENVIRONMENTAL REVIEW Adoption of the budget does not represent a project under the California Environmental Quality Act (CEQA). ATTACHMENTS Attachment 1: Exhibit A: Exhibit B: Exhibit C: ExhibitD: Exhibit E: CMR:280:09 Budget Adoption Ordinance with the following Exhibits: City Manager's Fiscal Years 2010 and 2011 Proposed Budget Amendments to the City Manager's Fiscal Years 2010 and 2011 Proposed Budget Fiscal Year 2010 Proposed Municipal Fee Schedule Revised Pages in the Fiscal Years 2010 and 2011 Table of Organization Amendments to the Fiscal Year 2010 Proposed Municipal Fee Schedule Page 9 of 12 Attachment 2: Attachment 3: Attachment 4: Attachment 5: Attachment 6: Attachment 7: Attachment 8: Attachment 9: Attachment 10: Exhibit A: Attachment 11: CMR:280:09 Resolution of the Council of the City of Palo Alto Amending Utility Rate Schedules R-l, R-2, and R-3 of the City of Palo Alto Utilities Rates and Charges Pertaining to Refuse Rates Resolution of the Council of the City of Palo Alto Amending Utility Rate Schedules W -1, W -4, and W -7 of the City of Palo Alto Utilities Rates and Charges Pertaining to Water Rates Resolution of the Council of the City of Palo Alto Amending Utility Rate Schedules S-1 and S-2 of the City of Palo Alto Utilities Rates and Charges Pertaining to Wastewater Collection Rates Resolution of the Council of the City of Palo Alto Amending City of Palo Alto Utility Rate Schedules G-l, G-2, G-3, G-4, G-6, G-1O-, G-11, AND G-12 of the City of Palo Alto Utilities Rates and Charges Pertaining to Gas Rates Resolution of the Council of the City of Palo Alto Amending City of Palo Alto Utility Rate Schedules E-l, E-I-G, E-2, E-2-G, E-4, E-4-TOU, E-4- G, E-7, E-7-TOU, E-7-G, E-14, E-18, AND E-18-G of the City of Palo Alto Utilities Rates and Charges Pertaining to Electric Rates. Resolution of the Council of the City of Palo Alto Amending City of Palo Alto Utility Rate Schedules C-l, E-16 and W-2 of the City of Palo Alto Utilities Rates and Charges Pertaining to Utility Service Rates. Resolution of the Council of the City of Palo Alto Amending City of Palo Alto Utility Rate Schedules EDF-l and EDF-2 of the City of Palo Alto Utilities Rates and Charges Pertaining to Fiber Optic Rates. Resolution of the Council of the City of Palo Alto Amending City of Palo Alto Utility Rate Schedule C-4 of the City of Palo Alto Utilities Rates and Charges Pertaining to the Residential Rate Assistance Program Resolution of the Council of the City of Palo Alto Amending the Compensation Plan for Management and Professional Personnel and Council Appointees Adopted by Resolution No. 8844 to Change the Title of One Classification. Fiscal Year 2010 Compensation Plan Changes for Management and Professional Personnel -related to Attachment 10 Resolution of the Council of the City of Palo Alto Amending the Compensation Plan for Classified Personnel (SEnJ) Adopted by Resolution No. 8658 to Add Four New Classifications and Change the Compensation for Two Existing SEIU Classifications Page 10 of 12 Exhibit A: Appendix 1: Appendix 2: Appendix 3: Appendix 4: Appendix 5: Appendix 6: Appendix 7: Related Staff Reports: CMR:280:09 Fiscal Year 2010 SEIU Compensation Plan Changes Attachment 11 related to Fiscal Years 2010 and 2011 General Fund Summary and Reserve Balances Fiscal Years 2010 and 2011 Enterprise Fund Summary and Reserve Balances Fiscal Years 2009-2014 Capital Improvement Fund Summaries and Amended Projects Fiscal Years 2010 and 2011 Special Revenue Funds Summaries May 26, 2009 Memorandum to Finance Committee detailing changes to Fiscal Years 2010 and 2011 City Manager's Proposed Budget to date Memorandums distributed "at-places" during the Finance Committee budget hearings Budget Hearing Presentation Slides distributed during the Finance Committee budget hearings CMR:160:09; CMR: 182:09; CMR:187:09; CMR: 190:09; CMR:206:09; CMR:261:09 CMR:161:09; CMR:185:09; CMR: 188:09; CMR: 199:09; CMR:209:09; CMR:180:09; CMR:186:09; CMR:189:09; CMR:205:09; CMR:248:09; Page 11 of 12 PREPARED BY: Budget Manager DEPARTMENT HEAD APPROVAL: ------~----~========~---- LALOPEREZ Director of Administrative Services CITY MANAGER APPROVAL: City Manager CMR:280:09 Page 12 of 12 Police and Fire Departments Overtime Analysis for Fiscal Years 2004 through 2009 Fiscal Year Endina June 30 2004 2005 2006 2007 2008 2009" POLICE DEPARTMENT Overtime Expense Original Budget $947,648 $974,426 $981,862 $1,015,620 $1,036,815 $999,900 Current Budget 1,028,337 1,009,705 1,074,399 1,071,005 Net Overtime Cost see below 1,096,077 780,647 1,025,718 1,096,894 Remaining Budget ($67,740) $229,058 ($25,8891 Overtime Net Cost Actual Expense $1,309,185 $1,229,851 $1,405,155 $1.785,657 $2,009,542 $1,500.280 Less Reimbursements Stanford Communications 51.021 30,941 30.937 39,342 65.079 42,160 Utilities Communications Reimbursement 26,699 17,404 17,402 22,130 36,607 23,715 Local Agencies IA) 46.156 32,617 34.565 36,457 41,770 37,413 Federal Grants 12,237 State Grants (8) 86,644 6,135 65,635 63,344 4,672 10,996 Police Service Fees 94,125 37,188 49,185 43,218 67,390 53,812 other 7,489 12,447 18,157 Total Reimbursements 133,774 216,938 233,675 Less Department Vacancies 375,515 426,584 678,973 Net Overtime Cost $1,096,077 $780,647 $1,096,694 Department Vacancies (number of days) 1,710 1,642 1,733 2,280 2,766 2,402 FIRE DEPARTMENT Overtime Expense Original Budget $974,594 $962,674 $959,369 $1,032,674 $692,674 $1,017,674 Current Budget 962,674 .959,369 1,032,674 996,674 Net Overtime Cost see below 1.309,234 652,302 965,302 952,879 Remaining Budget ($326,560) $107,067 $67,372 $43,795 Overtime Net Cost Actual Expense $1,553,410 $1,956,529 $1,582,856 $1,660,757 $1,744,076 Less Reimbursements Stanford Fire Services 10) 470,683 592,826 479,606 563,809 528,455 422,692 Cal-FireIFEMA (Strike Teams) 69,467 66,269 65,531 140,224 453,619 State Homeland Security Grant Program (SHSGP) (C) 17,203 72,254 40,697 10,164 4,342 Urban Area Security Initiative (UASI) 26,782 1,150 Total Reimbursements 610,031 644,911 679,993 Less Department Vacancies not available" 37,264 65,645 111,204 121,792 Net Overtime Cost $993,260 $1,309,234 $852,302 $952,679 $392,576 Department Vacancies (number of days) not available" 243 547 851 669 466 NOTES: ActuaJs are as of June 1, 2009 Information not available within given timeframe. (A) Includes Animal Services contract with Los Altos, Mountain View and Los Altos Hills. (B) State Office of Traffic Safety and ABC grants. (e) Included in the SHSGP and UASI reimbursements is a small amount of per diem reimbursement. (D) Stanford reimburses 30.3% of Fire expenditures. 615/2009 Exhibit B Contingency $ 43,000 Increase base budget -City Council Contingency Contingency $ 84,100 Increase base budget -City Manager Contingency SalarylBenefits $ 794,068 Move PAPOA Salary Increase Deferral to Police Department Non-Salary $ (132,182) one half of estimated General Fund utility savings for sustainablity efforts Non-Salary $ (35,500) 20 perecent reduction to General Fund travel expense Non-Salary $ 1,900,000 Reduce Bridge Options $1.9 milion Transfer $ (1 ,000,(00) Reduce General Fund transferto Capital Fund -additional $1 mill ion Use Changes $ 1,653,486 Non-Salary ...,$:-_-:3",2-:,000=_lncrease for Sustainablity programs $ 32,000 Use Changes Non-Salary $ (11,000) Decrease increase for outside CAO evaluator Use Changes $ (11,000) Hf.,;);i;h'i1.~I\'lIllr~1:1!, Revenue $ 95,941 Restore Family Resources Program Revenue Revenue $ (150,000) Remove parking revenue for Baylands and Foothills Parks Revenue $ 148,170 Increase Revenue for Golf Course Source Changes $ 94,111 SalarylBenefits $ 95,941 Restore Family Resources Program expense Non-Salary $ (11,099) Decrease expense for Golf Course Non-Salary $ 41,000 Restore Funding for Twilight Concert Series Use Changes $ 125,842 Net Changes To (Ii'rom) Reserves $ (31,731) , ~~~¥l~~f::{:;~~~;;~-''''·';:oi~ Revenue $ 236,000 Restore B LS program revenue Source Changes $ 236,000 Various $ 108,000 Restore B LS program expense UseCbanges $ 168,000 Net Changes To (From) Reserves $ 128,000 j:;J!ilf',I,lh'!li i.·il~I"nl;;S '1,'!i,,! "~i;il:';l Salary and Benefits S (236,280) Eliminate Assistant Director of Planning position Use Changes $ (236,280) Net Changes To (From) Reserves $ 236,289 Salary and Benefits $ (794,068) PAPOA Salary Increase Deferral UseCbanges $ (794,668) Net Changes To (From) Reserves $ 794,068 General Fund -Pa e 1 01 2 Salary and Benefits Salary and Benefits UseCbonges Use Chaoges Salary and Benefi ts Salary and Benefits Non-Salary UseChaO!!es Exhibit B $ (24,835) Reallocate 0.25 FfE Administtative Associate III to Capital Projects Fund (21,325) Reallocate 0.25 HE Administrative Associate I to Capital Projects Fund $ (46,H;O) $ (564,487) Reduction of Transfer from General Fund to Capital Project Fund and various $ $ funding sources for projects 24,835 Reallocate 0.25 FfE Administrative Associate III from General Fund-Public Works 21,325 Reallocate 0.25 FfE Administrative Associate I from General Fund-Public Works 535,513 CIP Project PD-07000 (Mobile Command Vehicle) $300,000; PL-llooo 101 PedestiaJlBicycie Overpass/Underpass Project) $100,000; PE- General Fund -Pa e 2 Of 2 Use Changes Use Changes Transfer Transfer Non-Salary Non-Salary Transfer Transfer Transfer Exhibit B $ (220,000) Decrease in CIP expenditures for CIP PE-06oo7 Park Restroom Installation (Deferred) $ (100,000) Decrease in CIP expenditures for CIP PE-07oo7 Cubberley Turf Renovation ----:-_____ (Funding moved to FY2oo9) $ (320,000) $ $ $ $ $ 100,000 Allocate budget for Affordable Housing projects in FY2010 100,000 General Fund -Page 1 of 3 Revenue Cbanges UseCbanges Revenue Cbanges Revenue Salary and Benefits Non-Salary Non-Salary Non-Salary Non-Salary Non-Salary Revenue Revenue Revenue Non-Salary UseCbanges ExhibitB $ (100,000) Decrease Central Valley Project Operations and Maintenance Loan Repayments $ (100,000) $ (100,000) Decrease Central Valley Project Operations and Maintenance Loan Advances $ (100,000) $ 270,000 Change in Fund Balance -Supply $ (270,000) Change in Fund Balance -Calaveras $ in Fund Balance -Distribution 142,000 Increase net sales to reflect correction 142,000 $ l35,700 Increase demand-side management program expenditures $ 135,700 1::'_ ...... -. .. : __ ~. ............... D ............... 1 ...... -" A Non-Salary Use Changes Revenue Revenue Changes Non-Salary Use Changes Exhibit B ---:_~4;;:5.:;:,2;::7.::-9 Increase demand-side management program expenditures $ 45,279 $ 20,000 Increase net sales to reflect correction --:----:-::-'-:-~ $ 20,000 $ (250,000) Decrease in operating transfers to Refuse Fund for eIP RF- 10003 Drying Beds, Material Storage and Transfer Area (moved to FY 2011) $ (250,000) Revenue Revenue Changes Non-Salary Use Changes Non-Salary Use Changes Revenue Revenue Changes Non-Salary Use Changes ExhibitB (500,000) Decrease in CIP reimbursements from Wastewater Collection Fund and Storm Drainage Fund for CIP RF-l0003 Drying Beds, Material Storage and Transfer Area (moved to FY2011) (500,000) $ (750,000) Decrease in CIP expenditures for CIP RF-l0003 Drying Beds, Material Storage and Transfer Area (moved to FY 2011) $ (250,000) Decrease in operating transfers to Refuse Fund for CIP RF- 10003 Drying Beds, Material Storage and Transfer Area (moved to FY 2011, and not to be funded by Storm Drainage Fund) (250,000) (334,926) Decrease in net sales from City sustainability savings (334,926) ,$ (202,609) Decrease in utility charges from City sustain ability savings $ (202,609) Revenue Changes Revenue Transfer Transfer Revenue Changes Revenue Revenue Changes Non-Salary Use Changes ExhibitB o o o $ Use Changes Use Changes Use Changes Contingency Contingency Non-Salary Non-Salary Non-Salary Non-Salary Revenue Revenue Revenue Source Changes Use Changes Source Changes Use Changes UseCbanges SalarylBenefilS Non-Salary Non-Salary Revenue Various Salary and Benefits $ $ $ :) $ Exhibit B 43,000 Increase base budget -City Council Contingency 84,100 Increase base budget -City Manager Contingency (132.182) one half of estimated General Fund utility savings for sustainability efforts (35.500) 20 percent reduction to General Fund travel expense (40,582) :) 32,000 Increase for Sustainability programs -::$:----=32,=-:000~ $ $ $ $ $ (11.000) Decrease increase for outside CAO evaluator (11,000) 95,941 Restore Family Resources Progrdm Revenue (150,000) Remove parking revenue for Baylands and Foothills Parks 148,170 Increase Revenue for Golf Course 94,111 $ 95,941 Restore Family Resources Program expense $ (11,099) Decrease expense for Golf Course ...;$~_~41:-:..000~,...Restore Funding for Twilight Concert Series $ 125,842 $ 236,000 Restore Bl.S program revenue $ 236,000 $ 137,571 Restore Bl.S program expense $ 137,571 :) (236.280) Eliminate Assistant Director of Planning position $ (236,280) Salary and Benefits $ Salary and Benefits Use Changes $ Source Changes $ Salary and Benefits $ Salary and Benefits Use Changes $ ExhibitB (24.835) Reallocate 0.25 FfE Administrative Associate HI to Capital Projects Fund (21,325) Reallocate 0.25 FfE Administrative Associate I to Capital Projects Fund (46,160) 24.835 Reallocate 0.25 FfE Administrative Associate m from General Fund-Public Works 21.325 Reallocate 0.25 FfE Administrative Associate I from General Fund-Public Works 46,160 Revenue Changes Use Changes Revenue Changes Revenue Revenue Salary and Benefits Non-Salary Non-Salary Non-Salary Non-Salary Non-Salary Revenue Revenue Revenue Non-Salary Use Changes Exhibit B $ 2.551,259 Increase net sales to reflect correction $ (400,000) Decrease Central Valley Project Operations and Maintenance Loan Repayments $ 2,151,259 $ (400.000) Decrease Central Valley Project Operations and Maintenance Loan Advances $ (4(M",)00) Change in Fund Balance -Supply Change in Fund Balance -Calaveras in Fund Balance -Distribution 142.000 Increase net sales to reflect correction 142,000 $ 146,440 Increase demand-side management program expenditures $ 146,440 Non-Salary Use Changes Revenue Revenue Changes Use Changes Non-Salary Non-Salary ExhibitB --,._----:;8..,;;0,:.;;,2;.;.7,;;,..9 Increase demand-side management program expenditures $ 80,279 $ 375,000 Increase in operating transfers to Refuse Fund for CIP RF- 10003 Drying Beds, Material Storage and Transfer Area (moved from FY 2010) $ 375,000 Revenue Revenue Changes Non-Salary Use Changes Revenue Revenue Changes Use Changes Revenue Changes Non-Salary Revenue Transfer ExhibitB 375,000 Increase in CIP reimbursements from Wastewater Collection Fund for CIP RF-l 0003 Drying Beds, Material Storage and Transfer Area (moved from FY 2010) $ 150,000 Increase in CIP expenditures for CIP RF-I 0003 Drying Beds, Material Storage and Transfer Area (moved from FY 2010) (334,926) Decrease in net sales from City sustainability savings (334,926) $ (202,609) Decrease in utility charges from City sustainability savings $ (202,609) o Transfer Revenue Changes Revenue Revenue Changes Non-Salary ExhibitB o o $ TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE: JUNE 8, 2009 CMR:274:09 REPORT TYPE: PUBLIC HEARING SUBJECT: Assessment for California Avenue Area Parking Bonds -Plan G: Fiscal Year 2010; Adoption of a Resolution Confirming Engineers' Report and Assessment Roll, California Avenue Parking Project No. 92-13 (For Fiscal Year 2009-2010) EXECUTIVE SUMMARY Staff is required to recalculate the parking assessments for the California Avenue parking assessment district each year based on building square footage, parking required and parking provided. Each property owner is sent the new assessments each Spring and Council conducts a public hearing each June to allow those owners to question the assessments. RECOMMENDATION Staff recommends that Council adopt the attached resolution (Attachment A) confirming the Engineer's Report and Assessment Roll for California Avenue District, Parking Project No. 92-13. BACKGROUND By virtue of the prior establishment ofthe assessment district and issuance of debt, Council action is required to levy annual assessments for the active parking project in the California Avenue area. These assessments will be utilized for the payment of principal and interest on bonds for capital improvements pursuant to the attached resolution. These funds are separate and distinct from permit fees that are used to pay for operation and maintenance of parking facilities. The active project is listed and described as follows: 1. California Avenue District, Ted Thompson Parking Structure, Proj ect 92-13: Construction of a two-level parking structure on Cambridge Avenue between Birch Street and Nogal Lane. Parking bonds issued under Bond PlanO (Section 13.16.150, Palo Alto Municipal Code) require that a public hearing be held annually (the second Monday in June) on the assessments, which must be levied to pay principal and interest on the bonds. The purpose of the public hearing is to allow each property owner within the District the opportunity to question the computation ofhislher assessment and the elements which comprise it. These elements include the square footage of each occupied building, the off-street parking requirements for the usage, and the off-street parking provided. Assessments are levied on the basis of building square footage, with a credit given for the off-street CMR:274:09 Page 1 on parking provided by the property owner. Additional details about the Parking Assessment District- Plan G bond capital improvement program project can be found in Attachment B. DISCUSSION The assessment rates for FY 2009-10 (Attachment C) per square foot of adjusted building area and the amount levied for the project is: PROJECT 1. California Avenue District, Ted Thompson Parking Structure, Proj ect 92-13 *Rate per weighted assessment factor. * * Rate per land square footage. ASSESSMENT RATE PER ADJUSTED BUILDING SQUARE FOOTAGE $9.48* $ 0.054** Total: DOLLARS LEVIED $111,442.73 $ 37,147.63 $148,590.36 (A complete copy ofthe Fiscal year 2010 Assessment Roll is available for review at the City Clerk's office.) Approximately $341,000 in excess construction funds in the California Avenue District bond fund for the Ted Thompson parking garage, Project 92-13, was used to reduce the tax roll required to pay off the bonds sold to finance the project. To equalize assessments, the funds were spread uniformly over the duration of the bond"s(20 years) beginning with the 1996 assessments. "" Attachment D lists changes made to the assessment rolls. The estimated assessments were sent to the owners of 148 parcels within the California Avenue district on March 25,2009. Assessments were modified due to recent changes in business site conditions (square footage, vacancy, etc.), which were brought to staffs attention by property owners since the estim~ted assessments were prepared. Because the hearing itself is the legally prescribed process by which questions about the basis of assessment and the property owners' individual circumstances may be heard, it may be necessary to have a second addendum available at the Council meeting that reflects changes brought to staffs attention since the Council packet was delivered. The public hearing for the assessment district may need to be continued if last minute information brought forward by property owners cannot be verified and included in the amended rolls prior to the hearing. RESOURCE IMPACT The Ted Thompson parking structure project is funded by the assessment district and no City General Fund monies are involved. Although assessments are generally subject to Proposition 218, this particular assessment is exempt from Proposition 218 since all of the assessment proceeds are pledged to repay bond indebtedness issued prior to the enactment of Proposition 218. Parking district maintenance costs, including sweeping, landscaping, signing and lighting are paid for by parking permit fees, which were last increased in 2005 in the California Avenue Parking District. These are separate from the funds used to pay for construction of the parking garage. CMR:274:09 Page 2 of3 Staff time expended to administer the District is covered through the assessments. POLICY IMPLICATIONS Approval ofthis action does not represent any change to existing City policies. TIMELINE The assessments will be sent to the Santa Clara County Tax Collector in July 2009 and will appear on the October 2009 property tax bills. ENVIRONMENTAL ASSESSMENT Approval of assessments is exempt by from the California Environmental Quality Act (CEQA). ATTACHMENTS Attachment A: Resolution (1) Attachment B: Capital Improvement Program Project Attachment C: California Avenue Assessment Rates Attachment D: California Avenue District Amendments PREPARED BY: DEPARTMENT HEAD: 7lng]ct. E8J ..... __ ~_ CITY MANAGER APPROVAL: GLENN S. ROBERTS Director of Public Works JAMES KEENE City Manager cc: California Avenue Area Development Association Chamber of Commerce CMR:274:09 Page 3 of3 ATTACHMENT A NOT YET APPROVED Resolution No. ---- Resolution of the Council of the City of Palo Alto Confirming Engineer's Report and Assessment Roll California Avenue Parking Project No. 92-13 (For Fiscal Year 2010) THE COUNCIL OF THE CITY OF PALO ALTO DOES RESOLVE as follows: Section 1: After proceedings conducted pursuant to the Palo Alto Municipal Code, a public hearing has been duly held on the Engineer's Report and assessment roll prepared for the above fiscal year to pay the principal and interest on bonds issued pursuant to Resolution of Intention No. 7930, adopted by the Council of the City of Palo Alto on August 9, 1993; Section 2: This Council has heard all persons having an interest in any real property within the parking assessment district; has heard all objections, protests, or other written communications from any persons interested in the real property within the district; has taken and received oral and documentary evidence pertaining to the matters contained in the report; and has remedied and corrected any errors or informalities in the report and revised and corrected any of the acts or determinations of the various City officials as contained therein; Section 3: The Engineer's Report and assessment roll, and each of the assessments therein as fully revised and corrected, is hereby approved and confirmed. 1/ 1/ II 1/ 1/ II 1/ 1/ II 1/ -1- 090603 jb 0130483 Section 4: The report together with the certificate of the City Clerk as to the fact and date of approval by this Council, shall forthwith be delivered to the County of Santa Clara, and the proper County officer shall cause to be posted to the tax rolls, in the column provided therefore the amount of each of the assessments proposed to be levied and collected for the fiscal year as set forth in the report as confirmed. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: City Clerk APPROVED AS TO FORM: Jones Hall, A Professional Law Corporation By .\--¥1bHJ~+="---+\---'-------- -2- APPROVED: Mayor City Manager Director of Public Works Director of Administrative Services Senior Asst. City Attorney BOND ISSUE California Avenue Project 92-13 (Ted Thompson Garage) CAPITAL IMPROVEMENT PROJECT FINANCED BY ASSESSMENT PROCEDURES USING G-BONDS CALIFORNIA AVENUE AREA AMOUNT OF PURPOSE OF ISSUE DATE ISSUED BOND ISSUE $2,055,000 Construction of a future two level parking structure on lot C-3 and the 11/93 two parcels acquired by project 86-01. DATE OF MATURITY 09/02/2015 INTEREST RATE 3.4% -5.4% ~ ~ ~ ~ ~ Z ~ = -, CALIFORNIA AVENUE AREA PARKING DISTRICT ANNUAL ASSESSMENT RATES Project 92-13 LAND ASSESSMENT w (!) ~ 0 0 u... O.OB -w (() 10 ~ t") I' (J) « 0 (() 00 00 0 0 :::::> (() 0 <0 <0 --0 d 10 10 0 0 ~ 0 d N ,..... N t") 0 0 d 10 (fJ 10 10 10 10 10 0 d 0 0 Cl 0.06 q q q 0 q d z 0 0 ::s 0 0 0 w ~ 0.04 _. I-Z w ::i: (fJ (fJ 0.02 w (fJ (fJ « ~_I I I I I I I L I .1M .i2 .iii .lU .iii .i.!! .lllJ .Q1 ..Q2 ~ .!l4 !If! .ll2 SJ1 .Il.8 .Qa 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 YEAR BUILDING ASSESSMENT 0::: ~ I' ~ 13.0 I' "? !z f1 w 12.0 N (J) (J) :2!' 10 I' <0 en ,..... 00 d en 0 0 0 0 w 11.0 en d d en t") 00 « N I' I' 10 ~ 0 10.0 t") "! w (J) (J) ~ (J) (J) (J) (J) (,9 9.0 iIi s: -~ B.O !z 7.0 w :2!' en 6.0 en w en en « --.1M .lU .iii .i.!! !If! .Qa 95 98 99 00 06 10 AB13B-2009 Page 1 of 1 L ATTACHMENTD CALIFORNIA A VENUE DISTRICT AMENDMENTS PRELIMINARY ROLL Address, Parking Parking Assessments Parcel· Number Feet Reqd. Prov 92-13 86-01 No amendments AMENDED ROLL Address, Use Square Parking Parking Assessments Parcel Number Feet Reqd. Prov 92-13 86-01 No amendments TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE: JUNE 8, 2009 CMR:258:09 REPORT TYPE: PUBLIC HEARING SUBJECT: Adoption of an-Ordinance Amending Section 16.28.080 (Specific Exemptions) of Title 16 (Building Regulations) of the Palo Alto Municipal Code to Require Excavation and Grading Permits for Basements and Below-grade Parking Structures RECOMMENDATION Staff recommends that Council adopt an amendment to the Grading Ordinance to require excavation and grading permits for basements and below-grade parking structures. BACKGROUND Palo Alto Municipal Code (P AMC) Section 16.28 governs grading, erosion and sediment control for construction projects and Section 16.28.080 defines the specific exemptions to this section, including an exemption for excavations under the footprint of a building. Since the time when this section was adopted, home and land values have increased. Accordingly, many new homes and commercial developments now include basements and/or below-grade parking structures in an effort to maximize usable space. DISCUSSION Under the current code, excavations under the footprint of a structure are authorized by a building permit and, therefore, are exempt from obtaining an excavation and grading permit. However, the Public Works Department still inspects and monitors the storm water pollution prevention plan, traffic control, logistics and the integrity of the right-of-way throughout the excavation just as they do for a project that requires an excavation and grading permit. The adoption of this code amendment will codifY Public Work's current practice of inspecting and monitoring these types of excavations. Further this amendment will allow the Public Works Department to recover the costs associated with inspecting and monitoring projects which include excavations under the. footprint of proposed. structures. Public Works inspects grading and excavation activities for storm water pollution prevention compliance, street tree impacts, tree protection status, traffic/pedestrian plans, and impacts to the right-of-way (sidewalks and streets) as well as monitoring potential safety issues. Excavations required for the footings of buildings, retaining walls, and other structures will remain exempt from the excavation and grading permit requirement. The current excavation and grading permit fee will remain unchanged. CMR:258:09 Page 10f3 Staff is aware that there are a number of other issues of concern regarding basements, particularly related to residential basements, including greenhouse gas emissions, dewatering and tree impacts. A separate discussion of these concerns is tentatively scheduled for the July 29,2009 Planning and Transportation Commission meeting, and any related ordinance amendments designed to address such impacts would be forwarded at a later date to the City Council. RESOURCE IMPACT The revenues generated by issuing excavation and grading permits for basement and below-grade parking structures will compensate Public Works for the staff time that is already devoted to monitoring these projects. The number of basements and below-grade parking garages will vary greatly from year to year. The estimated number of permits issued annually is approximately 30 and the average fee per permit is approximately $1000. Permit fees are based on the current unchanged grading permit fee and will vary depending upon the volume of soil being excavated. The permit fee for a typical residential home excavating for a 1500 square foot basement would be approximately $900. However, based on recent projects, staff estimates the average revenues generated each year will be: Residential basements: Parking garages: Total POLICY IMPLICATIONS $20,000 $10,000 $30,000 The Proposed Ordinance amendment is consistent with the Comprehensive Plan. ENVIRONMENTAL REVIEW This amendment to the grading ordinance does not change the environmental review of projects. It simply changes the permitting requirements for basements and below-grade parking structures. ATTACHMENTS Attachment A: Draft Ordinance Amending Section 16.28.080 of Title 16 of the PAMC. Copies of this report CMR:258:09 and attachments may be viewed on-line at http://www.cityofpaloalto.orglknowzone/agendas/council.asp. PREPARED BY: DEPARTMENT HEAD: CMR:258:09 Supervising Project Engineer /!L A· Xh-----= GLENN S. ROBERTS Director of Public Works Page 2 of3 CITY MANAGER APPROVAL: cc: Phil Bobel CMR:258:09 Page 3 of3 follows: ATTACHMENT A NOT YET APPROVED Ordinance No. ---- Ordinance of the Council of the City of Palo Alto Amending Section 16.28.080 (Specific Exemptions) of Title 16 (Building Regulations) of the Palo Alto Municipal Code to Require Excavation and Grading Permits for Basements and Below- Grade Parking Structures The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Findings and Declarations. The City Council finds and declares as (a) In the time since Section 16.28.080 of the City of Palo Alto Municipal Code (P AMC) was adopted, land and home values on the peninsula and, in particular Palo Alto, have significantly increased. In an effort to maximize floor area ratio (FAR) and maximize return, nearly every new home and many commercial developments include basements and/or below grade parking structures. This trend continues despite fluctuating economic conditions; (b) Currently, these types of excavations are exempt from grading permit requirement but they still result in a significant expenditure of staff time. Inspection and monitoring of storm water pollution prevention measures (SWPP), traffic control, monitoring logistics, and ROW integrity are a few of the items that the City'S Public Works Department must inspect and monitor throughout the excavation and foundation activities; ( c) This ordinance will amend the P AMC to ensure that below grade excavations for purposed of basements and below grade parking structures are no longer exempt from permit fees and that staff time spent processing such excavations will be subject to permit fees. SECTION 2. Section 16.28.080 (Specific Exemptions) is amended to read as follows: 16.28.080 Specific Exemptions Sections 16.28.060 and 16.28.070(a) -(1) notwithstanding, the following activities are exempt from the permit requirements of this chapter. (a) An excavation below finished grade for basements and the footing of a building, retaining wall, or other structure authorized by a valid building permit, excluding basements and . below grade parking structures. This shall not exempt any fill made with the material from such excavation nor shall it exempt any excavation having an unsupported depth greater than five feet after the completion of the structure. (b) Cemetery graves. (c) Refuse disposal sites controlled by other regulations. 1 090514 jb 0130433 NOT YET APPROVED (d) Excavations for wells, sanitary sewers, water pipes, natural gas pipes, and electrical/communications conduits or cables. However, when such excavation is performed within a public utility easement, an encroachment permit is required. (e) Mining, quarrying, excavating, processing, stockpiling of rock, sand, gravel, aggregate, or clay, where authorized and regulated by law, provided such operations do not affect the lateral support or increase the stresses in or pressure upon any adjacent or contiguous property. (t) Exploratory excavations under the direction of soils engineers or engineering geologists. (g) Routine agricultural crop management practices. (h) Emergencies posing an immediate danger to life or property, or substantial flood or fire hazards. (i) Any activity where the total volume of material disturbed, stored, disposed of, or used as fill does not exceed 100 cubic yards and does not obstruct or modifY the storm water carrying capacity or characteristics of a drainage course. CD Sections 16.28.060 and 16.28.070 (a) -(g) notwithstanding, any activity where the total volume of material disturbed, stored, disposed of, or used as fill does not exceed five cubic yards is always exempt from the permit requirements. II II II II II II II II II II II II 2 090514 jb 0130433 NOT YET APPROVED (k) Any grading or construction activity within a Santa Clara Valley Water District right-of-way or easement which requires a Water District encroachment permit. SECTION 3. This ordinance shall be effective the 31 st day after the date of its adoption. INTRODUCED: PASSED: AYES: NOES: ABSTENTIONS: ABSENT: ATTEST: APPROVED: City Clerk Mayor APPROVED AS TO FORM: City Manager Sf. Assistant City Attorney Director of Public Works 3 090514 jb 0130433 TO: FROM: DATE: OFFICE OF THE CITY COUNCIL CITY OF PALO ALTO· MEMORANDUM City Council Colleagues . CAO Committee Chair Barton June 8,2009 SUBJECT: Approval of Agreement with Sherry L. Lund Associates in an Amount of $27,250 for Completion of Annual Council Appointed Officer Performance Reviews On May 28, 2009, the Council Appointed Officers Committee met to review a proposal from Sherry Lund for completion of the annual performance evaluations for the four Council Appointed Officers (CAOs). At the meeting, the Committee voted 3-1 (CouncilmelTlber Klein voting no) to recommend that the full Council approve an agreement with Ms. Lund in an amount of $27,250, including expenses. Ms. Lund's original proposal to the CAO Committee included an optional task that would have included additional work with the Council on governing body effectiveness. This additional option would have added $3,750 to the agreement cost. The Committee discussed this and recommended that this optional task be excluded from the proposal. Additionally, the Committee discussed funding for this agreement and recommended that any remaining funds from the FY2009 Council contingency be reappropriated and used towards payment of this agreement in FY2010. A revised proposal from Ms. Lund, based on the results of the May 28 meeting, is included with this memorandum as Attachment A The minutes from the May 28 meeting will be distributed to the Council before Monday's meeting. Based on this action, the Committee recommends Council review the revised proposal and authorize the Mayor to enter into a contract in substantially similar form to the contract attached (Attachment B) with Sherry L. Lund and Associates in an amount of $27,250 for facilitation of Council Appointed Officer evaluations. Attachment A: Proposal from Sherry L. Lund for CAO Performance Review Work Attachment B: Sample Contract Agreement -LUND Associates 247 La Cuesta Drive Portola Valley, CA 94028 (650) 854-0540 fax (650) 854-9702 sherrylund@aol.com May 29, 2009 Councilmember John Barton Chairperson, CAO Evaluation Committee City of Palo Alto City Council 250 Hamilton Avenue Palo Alto, CA 94301 Dear Councilmember Barton: Attachment A Thank you for the opportunity to present a proposal for the CAO performance review process. This proposal reflects the revisions suggested by the CAO Committee on May 28, 2009. Following are the project description, project tasks, project cost, cost assumptions, client responsibilities and next steps for the Council's consideration. PrQject Description At the end ofFY 2008-2009, the Council will be evaluating the four Council Appointed Officers (CAOs): the City Manager, City Clerk, City Attorney and City Auditor. In addition to the normal review process for the City Attorney and City Clerk, performance evaluation criteria needs to be developed for the new City Auditor and criteria for the new City Manager should be reviewed and refined. Otherwise, the evaluation process would proceed similarly to that ofFY 2007-2008. Project Tasks and Consultant Responsibilities The following performance evaluation project steps correspond to last year's process. The consultant: • Works with internal liaison to schedule project meetings and milestones. • Develops evaluation criteria for City Auditor and refines evaluation criteria for City Manager (with input from those specific CAOs). • Presents criteria to Council for feedback, revisions, and approvaL • Develops evaluation project timeline and milestones. • Meets with CAOs to kick off the annual performance evaluation cycle and solicit self-evaluations. • Distributes binders to Council, including CAO self-evaluations and blank evaluation hard copies. Send soft copies of blank forms on same day. • Reads all Council review comments and prepare for individual meetings. Lund CAO Evaluation Proposal-May 29, 2009 Page 1 I would enjoy the opportunity to work with the Council and the CAOs again in the next evaluation cycle. Please let me know if I may provide additional information. Best regards, Sherry Lund Principal Lund CAO Evaluation Proposal -May 29, 2009 Page 3 Attachment B CITY OF PALO ALTO CONTRACT NO.: AGREEMENT BETWEEN THE CITY OF PALO ALTO AND SHERRY L. LUND AND ASSOCIATES FOR PROFESSIONAL SERVICES FOR COMPLETION OF COUNCIL APPOINTED OFFICERS PERFORMANCE REVIEWS This AGREEMENT is entered into on this day of June, 2009, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (tlCITyfI), and SHERRY L. LUND AND ASSOCIATES, a ,located at ("CONSULTANTfI). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to conduct performance reviews of the four Council Appointed Officers (CAOs), the City Manager, City Attorney, City Auditor, and City Clerk ("Project") and desires to engage a consultant to perform facilitation and coordination services in connection with the Project ("Services"). B. CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit "A", attached to and made a part of this Agreement. NOW, THEREFORE, in consideration of the recitals, covenants, terms, and conditions, this Agreement, the parties agree: AGREEMENT. SECTION 1. SCOPE OF SERVICES. CONSULTANT shall perform the Services described in Exhibit "A" in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY. SECTION 2. TERM. The term of this Agreement shall be from the date of its full execution through completion of the services in accordance with the Schedule of Performance attached as Exhibit "B" unless terminated earlier pursuant to Section 19 of this Agreement. Professional Services Rev. January 2009 SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the performance of Services under this Agreement. CONSULT ANT shall complete the Services within the term ofthis Agreement and in accordance with the schedule set forth in Exhibit "B", attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY's agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services described in Exhibit "A", including both payment for professional services and reimbursable expenses, shall not exceed twenty-seven thousand two hundred and fifty Dollars ($27,250.00). In the event Additional Services are authorized, the total compensation for services and reimbursable expenses shall not exceed thirty thousand Dollars ($30,000.00). The applicable rates and schedule of payment are set out in Exhibit "C-l", entitled "HOURLY RATE SCHEDULE," which is attached to and made a part of this Agreement. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit "e". CONSULT ANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described in Exhibit "A". SECTION 5. INVOICES. In order to request payment, CONSULTANT shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including an identification of personnel who performed the services, hours worked, hourly rates, and reimbursable expenses), based upon the CONSULTANT's billing rates (set forth in Exhibit "C-l "). If applicable, the invoice shall also describe the percentage of completion of each task. The information in CON SUL TANT' s payment requests shall be subject to verification by CITY. CONSULTANT shall send all invoices to the City's project manager at the address specified in Section 13 below. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT's supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. 2 Professional Services Rev. January 2009 SECTION 7. COMPLIANCE WITH LA WS. CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all permits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services. SECTION 8. ERRORS/OMISSIONS. CONSULTANT shall correct, at no cost to CITY, any and all errors, omissions, or ambiguities in the work product submitted to CITY, provided CITY gives notice to CONSULTANT. If CONSULTANT has prepared plans and specifications or other design documents to construct the Project, CONSULTANT shall be obligated to correct any and all errors, omissions or ambiguities discovered prior to and during the course of construction of the Project. This obligation shall survive termination of the Agreement. SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall submit estimates of probable construction costs at each phase of design submittal. If the total estimated construction cost at any submittal exceeds ten percent (10%) ofthe CITY's stated construction budget, CONSULTANT shall make recommendations to the CITY for aligning the PROJECT design with the budget, incorporate CITY approved recommendations, and revise the design to meet the Project budget, at no additional cost to CITY. SECTION 10. INDEPENDENT CONTRACTOR. It is understood and agreed that in performing the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of the CITY. SECTION 11. ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the performance of any of CONSULT ANT's obligations hereunder without the prior written consent of the Mayor. Consent to one assignment will not be deemed to be consent to any subsequent assignment. Any assignment made without the approval of the Mayor will be void. SECTION 12. SUBCONTRACTING. CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the Mayor. SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Sherry Lund as the project manager to have supervisory responsibility for the performance, progress, and execution of the Services and to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the project director, project coordinator, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY's project manager. CONSULTANT, at CITY's request, shall promptly remove personnel who CITY fmds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. 3 Professional Services Rev. January 2009 The City's project manager is John Barton, CAO Committee Chair/Council Member, c/o City Clerk's Office, 250 Hamilton Avenue, Palo Alto, CA 94301. The project manager will be CONSULTANT's point of contact with respect to performance, progress and execution of the Services. The CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF MATERIALS. Upon delivery, all work product, including without limitation, all writings, drawings, plans, reports, specifications, calculations, documents, other materials and· copyright interests developed under this Agreement shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULTANT agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in CITY, and CONSULTANT waives and relinquishes all claims to copyright or other intellectual property rights in favor of the CITY. Neither CONSULTANT nor its contractors, if any, shall make any of such materials available to any individual or organization without the prior written approval of the Mayor. CONSULTANT makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work. SECTION 15. AUDITS. CONSULTANT will permit CITY to audit, at any reasonable time during the term of this Agreement and for three (3) years thereafter, CONS UL T ANT's records pertaining to matters covered by this Agreement. CONSULTANT further agrees to maintain and retain such records for at least three (3) years after the expiration or earlier termination of this Agreement. SECTION 16. INDEMNITY. 16.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an "Indemnified Party") from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements ("Claims") resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. 16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of an Indemnified Party. 16.3. The acceptance of CONSULTANT's services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive the expiration or early termination of this Agreement. SECTION 17 . WAIVERS. The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. 4 Professional Services Rev. January 2009 SECTION 18. INSURANCE. 18.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit "D". CONSULTANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies. 18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best's Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 18.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution ofthis Agreement. The certificates will be subject to the approval of CITY's Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification, CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY's Purchasing Manager during the entire term of this Agreement. 18.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 19.1. The Mayor may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (10) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 19.2. CONSULTANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereof to CITY, but only in the event ofa substantial failure of performance by CITY. 19.3. Upon such suspension or termination, CONSULTANT shall deliver to the Mayor immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULTANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 5 Professional Services Rev, January 2009 19.4. Upon such suspension or tennination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (Le., 10 days after giving notice) of suspension or tennination; provided, however, if this Agreement is suspended or tenninated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT's services which are of direct and immediate benefit to CITY as such detennination may be made by the Mayor acting in the reasonable exercise ofhislher discretion 19.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. 6 Professional Services Rev. January 2009 SECTION 20. NOTICES. All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: To CITY: Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 With a copy to the Purchasing Manager To CONSULTANT: Attention of the project director at the address of CONSULT ANT recited above SECTION 21. CONFLICT OF INTEREST. 21.1. In accepting this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 21.2. CONSULT ANT further covenants that, in the performance of this Agreement, it will not employ subconsultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 21.3. If the Project Manager determines that CONSULTANT is a "Consultant" as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate financial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act. SECTION 22. NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONSULTANT certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONSULTANT acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.3 0.510 pertaining to nondiscrimination in employment. SECTION 23. ENVIRONMENTALLY PREFERRED PURCHASING. The City of Palo Alto is a green business and works to purchase and provide products in an environmentally sustainable manner. CONSULT ANT will use production methods that reduce waste and environmentally toxic products, as well as have less packaging. CONSULTANT will adhere to the standard that printed materials will be, at a minimum, printed on 30% post consumer recycled paper with vegetable based ink. The designer will check with the project manager to discuss the maximum recycled content 7 Professional Services Rev, January 2009 paper available for each project. FSC (Forest Stewardship Council) certified paper that is "process free" is preferred. CONSULTANT will use methods that reduce energy use and thus the carbon footprint for the development, production and delivery of products. CONSULTANT shall adhere to the City's Environmentally Preferred Purchasing policies as may be amended from time to time. SECTION 24. MISCELLANEOUS PROVISIONS. 24.1. This Agreement will be governed by the laws of the State of California. 24.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Santa Clara, State of California. 24.3. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with that action. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by it as well as any attorneys' fees paid to third parties. 24.4. This document represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 24.5. The covenants, terms, conditions and provisions of this Agreement will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants of the parties. 24.6. If a court of competent jurisdiction finds or rules that any provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect. 24.7. All exhibits referred to in this Agreement and any addenda, appendices, attachments, and schedules to this Agreement which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Agreement and will be deemed to be a part of this Agreement. 24.8. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion ofthe fiscal year and funds for this Agreement are no longer available. This Section 24.8 shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this . Agreement. 24.9. The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 8 Professional Services Rev. January 2009 IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. CITY OF PALO ALTO Sherry L. Lund and Associates Mayor APPROVED AS TO FORM: Senior Asst. City Attorney Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT "C-l": EXHIBIT "D": SCOPE OF WORK SCHEDULE OF PERFORMANCE COMPENSATION SCHEDULE OF RATES INSURANCE REQUIREMENTS 9 Professional Services Rev. January 2009 Project Description EXHIBIT" A" SCOPE OF SERVICES At the end of FY 2008-2009, the Council will be evaluating the four Council Appointed Officers (CAOs): the City Manager, City Clerk, City Attorney and City Auditor. In addition to the normal review process for the City Attorney and City Clerk, performance evaluation criteria needs to be developed for the new City Auditor and criteria for the new City Manager should be reviewed and refined. Otherwise, the evaluation process would proceed similarly to that ofFY 2007-2008. Project Tasks and Consultant Responsibilities The following performance evaluation project steps correspond to last year's process. The consultant: • Works with internal liaison to schedule project meetings and milestones. • Develops evaluation criteria for City Auditor and refines evaluation criteria for City Manager (with input from those specific CAOs). • Presents criteria to Council for feedback, revisions, and approval. • Develops evaluation project timeline and milestones. • Meets with CAOs to kick off the annual performance evaluation cycle and solicit self- evaluations. • Distributes binders to Council, including CAO self-evaluations and blank evaluation hard copies. Send soft copies of blank forms on same day. • Reads all Council review comments and prepare for individual meetings. • Meets with each Council member to refine and clarifY written feedback (one hour each), . approximately two weeks prior to evaluation meeting • Compiles feedback from both Council and CAO input, develop a written evaluation summary, and send to Council for review. • Provides facilitation and technical assistance as needed during closed session Council evaluation and feedback meetings with each.CAO. • Documents agreed-upon Council feedback for written reviews. • Meets with CAOs to debrief evaluation meetings. • Prepares final evaluation file copies and obtain necessary signatures. Copies are given to CAO Committee Chair for filing. Final action on Council agenda is scheduled with Liaison. Payroll and contract changes are communicated to HRILegal, as appropriate. • Feedback meeting with CAO Chair and/or Committee to refine future process. Project Cost The CAO evaluation project can be completed with a minimum of 109 hours at $2501hr. (public sector discounted rate), or $ 27,250.00, including expenses. (private sector rate is $3751hr.). Cost Assumptions The following assumptions have been considered iIi pricing this proposal: • In addition to the project steps listed above, cost quotation includes preparation for all meetings, communications, and project management tasks and meetings. Professional Services Rev. January 2009 • There are four CADs evaluation to complete this year compared to three last year. The City Auditor was hired after last year's evaluation cycle. • There is no compensation work required this year. • Meetings missed without 24 hours notice and re-work that result from missed meetings will be billed beyond the quoted project fee at $2501hr. Clfent Responsibilities In order to support the success of the project, Client agrees to: • Assure involved parties are available for one-on-one and group meetings and complete evaluations in order to meet project milestones. • Identify an intemalliaison that can schedule appointments and provide support in getting evaluation items on Council agendas. • Provide meeting space and A-V equipment required. • Commit to a professional and respectful process. Professional Services Rev. January 2009 EXHIBIT "B" SCHEDULE OF PERFORMANCE (to be completed) CONSULTANT shall perfonn the Services so as to complete each milestone within the number of days/weeks specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the tenn of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Milestones Completion No. of Days/Weeks FromNTP Professional Services Rev. January 2009 EXHIBIT "C" COMPENSATION The CITY agrees to compensate the CONSULT ANT for professional services performed in accordance with the terms and conditions of this Agreement based on the hourly rate schedule attached as Exhibit C-1. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit "A" ("Services") and reimbursable expenses shall not exceed $27,250. CONSULTANT agrees to complete all Services, including reimbursable expenses, within this amount. In the event CITY authorizes any Additional Services, the maximum compensation shall not exceed $30,000. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULTANT shall be reimbursed are: A. Travel outside the San Francisco Bay area, including transportation and meals, will be reimbursed at actual cost subject to the City of Palo Alto's policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone cellular phone, facsimile transmission and postage charges are reimbursable at actual cost. All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $100 shall be approved in advance by the CITY's project manager. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY's project manager's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT's proposed maximum compensation, including reimbursable expenses, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY's Project Manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement. Professional Services Rev. January 2009 Sherry L. Lund EXHIBIT "C-l" HOURLY RATE SCHEDULE Project Manager $250/hour Professional Services Rev. January 2009 EXHIBIT "D" INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF P ALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBT AlN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST'S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY'S INSURANCE REQUIREMENTS, AS SPECIFIED BELOW: MINIMUM LIMITS REQUIRED TYPE OF COVERAGE REQUIREMENT EACH YES YES YES YES YES YES OCCURRENCE AGGREGATE WORKER'S COMPENSATION STATUTORY EMPLOYER'S LIABILITY STATUTORY BODILY INJURY $1,000,000 $1,000,000 GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE $1,000,000 $1,000,000 PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000 LIABILITY COMBINED. BODILY INJURY $1,000,000 $1,000,000 -EACH PERSON $1,000,000 $1,000,000 -EACH OCCURRENCE $1,000,000 $1,000,000 AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED PROPERTY DAMAGE $1,000,000 $1,000,000 BODILY INJURY AND PROPERTY $1,000,000 $1,000,000 DAMAGE, COMBINED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAlNT AIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSUL T ANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS' COMPENSATION, EMPLOYER'S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR'S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY'S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSUREDS" A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL Professional Services Rev. January 2009 NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON·PA YMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON·PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (1 0) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303 Professional Services Rev. Januruy 2009