HomeMy WebLinkAbout2005-10-24 City Council Summary Minutes
October 24, 2005
Special Meeting
1. Joint Meeting with Assemblyman Ira Ruskin regarding State Legislative
Matters of Local Concern .................................................................419
2. Resolution 8563 entitled “Resolution Expressing Appreciation to Bonnie
Packer for Outstanding Public Service as a Member of the Planning
and Transportation Commission” ......................................................419
3. Resolution 8564 entitled “Resolution Expressing Appreciation to
Michael Griffin for Outstanding Public Service as a Member of the
Planning and Transportation Commission” .........................................419
ORAL COMMUNICATIONS ........................................................................420
APPROVAL OF MINUTES ..........................................................................420
4. Ordinance 4882 entitled “Ordinance Amending Section 12.16.020 of
Chapter 12.16 of Title 12 of the Palo Alto Municipal Code by
Establishing Underground Utility District No. 41” (1st Reading 7/11/05,
Passed 8-0, Freeman absent) ..........................................................421
5. Approval of Contract with Brown, Vence & Associates, Inc. in an
amount not to exceed $178,209 for Provision of Services for "Getting
to Zero Waste” ..............................................................................421
6. Approval of Extension of 33 Months of the Current Lease Maintenance Agreement with MBA of California, Inc. in the Amount of $17,800
Monthly for the Rental and Maintenance of Copiers .............................422
7. Approval of Enterprise Fund Contract to Extend the Technical Currency
Agreement (TCA) with Indus Utility Systems Inc. (formerly SCT) for
Annual Maintenance of the Utilities Customer Billing System under
Existing Contract No. C3149377 in the Amount of $179,340 ................422
8. Finance Committee Recommendation to Preliminarily Approve 2004-05
Reappropriation Requests ................................................................422
10/24/05 99-417
9. Finance Committee Recommendation to Approve City Auditor’s Fiscal
Year 005-06 Work Plan ..................................................................422
10. Request for Council Direction on Legal, Financial, Operational, and
Other Issues Regarding Issuance of a Fiber to the Home Request for
Proposals ......................................................................................422
11. Colleagues Memo from Vice Mayor Kleinberg and Council Members
Cordell and Mossar re Referral to the Parks and Recreation
Commission. ..................................................................................432
COUNCIL COMMENTS, QUESTIONS, AND ANNOUNCEMENTS ........................436
12. CONFERENCE WITH CITY ATTORNEY -- EXISTING LITIGATION ............437
FINAL ADJOURNMENT: The meeting adjourned at 11:15 p.m. ......................437
10/24/05 99-418
The City Council of the City of Palo Alto met on this date in the Council
Conference Room at 6:03 p.m.
PRESENT: Beecham, Burch, Cordell, Freeman (arrived at 7:05 p.m.),
Kishimoto, Kleinberg, Morton (arrived at 6:08 p.m.), Mossar,
Ojakian
STUDY SESSION
1. Joint Meeting with Assemblyman Ira Ruskin regarding State Legislative
Matters of Local Concern
No action required.
RECESS: 6:55 p.m. with meeting reconvening in the Council Chambers at
7:10 p.m.
SPECIAL ORDERS OF THE DAY
2. Resolution 8563 entitled “Resolution Expressing Appreciation to Bonnie
Packer for Outstanding Public Service as a Member of the Planning
and Transportation Commission”
MOTION: Council Member Morton moved, seconded by Beecham, to
approve the Resolution.
MOTION PASSED 9-0.
Bonnie Packer thanked everyone for the opportunity of serving on the
Planning and Transportation Commission (P&TC) and the ability to
participate in land use decisions.
3. Resolution 8564 entitled “Resolution Expressing Appreciation to
Michael Griffin for Outstanding Public Service as a Member of the
Planning and Transportation Commission”
MOTION: Council Member Mossar moved, seconded by Morton, to approve
the Resolution.
MOTION PASSED 9-0.
Michael Griffin expressed his appreciation for the opportunity of getting into
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the inner-working of Palo Alto land use planning. He encouraged the Council
to bring new people into the Commission from Neighborhood Associations.
Council Member Beecham thanked Ms. Packer and Mr. Griffin for their great
work in making the City a better place.
Council Member Kishimoto expressed her thanks to both of the
Commissioners for their work and service.
ORAL COMMUNICATIONS
Victor Frost, 3790 El Camino Real, #203, spoke regarding the Community
Gardens.
Gary Schneider, 350 Grant Avenue, spoke regarding the Community
Gardens.
Aram James spoke regarding conflicts.
Stephanie Munoz, 101 Alma Street, #701, spoke regarding caps on height of
buildings and open space.
Beth Bunnenberg, 2351 Ramona Street, spoke regarding the Palo Alto
Historical Association.
Norman Carroll, 425 High Street #120, spoke regarding vote pamphlets.
Robert Moss, 4010 Orme Street, spoke regarding City Council campaigns.
Danielle Martell spoke regarding public concerns.
Sanford Forte spoke on the offensive public comments regarding City staff.
Herb Borock, P.O. Box 632, spoke regarding former City Manager June
Fleming.
APPROVAL OF MINUTES
MOTION: Council Member Mossar moved, seconded by Beecham, to
approve the minutes of September 26, 2005, as submitted.
MOTION PASSED 8-0 Kleinberg abstaining.
10/24/05 99-420
Vice Mayor Kleinberg abstained from voting on the Approval of Minutes since
she was not able to attend the meeting due to a medical procedure.
CONSENT CALENDAR
MOTION: Council Member Morton moved, seconded by Mossar, to approve
Item Nos. 4-9 on the Consent Calendar.
Council Member Freeman moved that Item No. 5 be removed from the
Consent Calendar. There was no second.
Council Member Freeman moved that Item No. 8 be removed from the
Consent Calendar. There was no second.
Council Member Freeman asked regarding Item No. 6, why the 33-month
extension on the maintenance agreement with MBA of California, Inc. for
copiers did not go out for bid.
Director of Administrative Services Carl Yeats said staff decided to utilize the
contract’s provision for extension of service.
Council Member Freeman said it was not noted in the staff report (CMR
397:05) and needed clarification.
Mr. Yeats said he would verify.
Council Member Freeman stated she would be voting “no” on Item Nos. 5, 6
and 8.
LEGISLATIVE
4. Ordinance 4882 entitled “Ordinance Amending Section 12.16.020 of
Chapter 12.16 of Title 12 of the Palo Alto Municipal Code by
Establishing Underground Utility District No. 41” (1st Reading 7/11/05,
Passed 8-0, Freeman absent)
ADMINISTRATIVE
5. Approval of Contract with Brown, Vence & Associates, Inc. in an
amount not to exceed $178,209 for Provision of Services for
"Getting to Zero Waste”
10/24/05 99-421
6. Approval of Extension of 33 Months of the Current Lease Maintenance
Agreement with MBA of California, Inc. in the Amount of $17,800
Monthly for the Rental and Maintenance of Copiers
7. Approval of Enterprise Fund Contract to Extend the Technical Currency
Agreement (TCA) with Indus Utility Systems Inc. (formerly SCT) for
Annual Maintenance of the Utilities Customer Billing System under
Existing Contract No. C3149377 in the Amount of $179,340
COUNCIL COMMITTEE RECOMMENDATION
8. Finance Committee Recommendation to Preliminarily Approve 2004-05
Reappropriation Requests
9. Finance Committee Recommendation to Approve City Auditor’s Fiscal
Year 005-06 Work Plan
MOTION PASSED 9-0 for Item Nos. 4, 7, and 9.
MOTION PASSED 8-1 for Item Nos. 5, 6 and 8, Freeman no.
Council Member Freeman stated her reasons for voting “no” on Item No. 5:
1) the contract allowed the contractor to provide information on space for a
recycling facility. The identification of the facility had not been vetted fully and needed a policy prior to spending the money; 2) the $15,534 meeting
listed in Exhibit “C”, Budget Schedule, Task 4, needed discussion, 3) the
$23,245 for Additional Services needed clarification; and 4) the relationship
between contractors and sub-contractors needed clarification.
Council Member Freeman stated regarding Item No. 6, non-professional
agreements needed to go out for bid to attain lower prices.
Council Member Freeman stated regarding Item 8, the Finance Committee’s
$70,000 recommended reappropriation of fees and completion of Downtown
North needed clarification.
REPORTS OF OFFICIALS
10. Request for Council Direction on Legal, Financial, Operational, and
Other Issues Regarding Issuance of a Fiber to the Home Request for
Proposals.
10/24/05 99-422
Council Member Morton stated he would not participate in the item due to a
conflict of interest because of family holdings in SBC and Comcast. His office
was within the boundaries of Utility District 39.
Council Member Mossar stated she would not participate in the item due to a
conflict of interest because of family holdings in SBC, AT&T and Comcast.
Vice Mayor Kleinberg stated she would not participate in the item due to her
employment with Joint Venture and their work with technology. She owned
stock in Google, which was under the specified conflict amount, but she
voluntarily conflicted herself to make sure no one believed she was biased.
Council Member Ojakian stated he would not participate in the item due to a
conflict of interest because of family holdings in SBC, AT&T and Comcast.
Mayor Burch announced that speaker cards would be taken until 8:15 p.m.
Deputy Director of Administrative Services Joe Saccio gave a presentation as
outlined in the staff report CMR:398:05 that included legal, financial, and
operational issues regarding Fiber to the Home (FTTH). He said staff
requested the Council’s guidance on the following; 1) whether to proceed
with a Request for Proposal (RFP); 2) determining acceptable risk to the
General Fund; 3) choosing a business model or relationship with a provider
in either a private-public partnership or to have the project be built and owned by a private entity; and 4) whether to use wireless technology.
Mayor Burch asked the City Attorney to clarify what could or could not be
decided at the meeting.
City Attorney Gary Baum explained the Charter required five Council votes
to award a contract. The Council could provide direction to staff to proceed
or not to proceed with a Request for Proposal (RFP). Since there were only
five Council Members participating, the vote needed to be unanimous to
approve the RFP. Budget Amendment Ordinances (BAO) or expenditure of
funds required six votes.
Jeff Hoel, 731 Colorado Avenue, spoke regarding the City of Loma Linda
installing a similar FTTH system. He requested that staff investigate how
Loma Linda was able to install the system.
Hilda Weisberg, 1051 Channing Avenue, spoke regarding whether the FTTH
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system would be operational by October 2006.
Wayne Martin, 3637 Bryant Street, spoke of the problems Palo Alto would
encounter in obtaining the FTTH system; Palo Alto was too small of a service
area.
Michael Eager, 1960 Park Boulevard, said the community wanted a high-
speed data infrastructure and not a television company.
Robert Moss, 4010 Orme Street, said the RFP wireless broadband should be
included in the RFP until high-speed capability was accessible.
Gerald Fisher, 1491 Greenwood Avenue, said the Community Center
neighborhood renamed its FTTH system to Community Center FTTH System
(CCFTTH). If the City instituted the system, the City should integrate the
on-going CCFTTH. The Community Center neighborhood had formed the
Palo Alto Fiber to the Home, Inc. (PAFTTH) a non-profit corporation. The
Community Center residents would raise monies to lease the facilities from
the City and contract a third party to operate and maintain the system.
Herb Borock, P.O. Box 632, felt a broadband universal system should be
developed for the community. The RFP should be for a wholesale system.
Sanford Forte, 280 College Avenue, felt the City should go forward in
obtaining a point-to-point data network in order for content coming over cable to come through the data network
David Harris, 455 Margarita Avenue, spoke regarding fee assessments to
districts not benefiting from the service. The Council could exclude the
territories unless a property owner wanted to join and be assessed at the
time of participation.
Andy Poggio, 2708 Gasper Court, said wireless was not an alternative to the
FTTH system. Wireless was a shared media and a technology for devices
that were mobile such as cell phones, laptop computers, and palm pilots.
Peter Broadwell, 2325 Cornell Street, was in favor of moving forward with
the FTTH.
Norman Carroll, 425 High Street #120, said by the time the system was
completed throughout Palo Alto, wireless technology and the FTTH would be
outdated in five to ten years.
10/24/05 99-424
Council Member Beecham raised concern of moving forward with the RFP
with a majority of five Council Members. He was not comfortable directing
staff to spend up to $150,000 with the uncertainty of five Council Members
in January 2006 continuing the effort.
Council Member Freeman asked if the project were to continue to January
2006, would Council Member Beecham’s proposal continue beyond the end
date until a decision was made.
Council Member Beecham said the issue to continue the trial depended on
whether or not the Motorola equipment could be passed on to the trial
membership and whether the City could contract with Motorola.
Mayor Burch said the trial should be linked with the decision by the new
Council in January 2006.
Council Member Beecham asked about the status on revenues and the
projected increase of $500,000.
Assistant City Manager Harrison said in the past 12 months, contracts were
signed representing approximately $500,000 in revenues. The permanent
revenue loss was a poor representation when staff was trying to express the
expectation of making another $540,000 while putting the RFP together.
With only one of the three staff members in the telecom area working on the RFP, it was overstating to believe that all revenue would be lost from the
telecom activity in the 12-month period. Loss of revenue and time spent
working on the RFP, which was $39,000 or 500 hours, were misstated. It
would be more beneficial for the Utilities Department to work on the RFP and
less potential of losing revenue. Staff could backfill and minimize revenue
lost.
Council Member Beecham said it was poor allocation of resources to lose
$500,000 in revenue based on the lack of 500 hours of manpower. He felt
by going forward there would be little to no permanent loss of revenue if
staff could backfill to the degree for payback on manpower or to contract
out.
Ms. Harrison concurred with Council Member Beecham and said that was
staff’s attempt.
Council Member Beecham said if a RFP was approved, he wanted to know
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the process used to prevent loss of revenues. If the Dark Fiber Ring was
contracted out he wanted an update on its capacity and how much remained
available.
Utilities Telecommunications Manager Blake Heitzman said there was a large
capacity remaining. The Downtown area had the highest impact with 30
percent capacity and as low as a 5 percent capacity in outlying areas.
Council Member Beecham asked whether there were any large operational
obstructions in moving forward with the RFP.
Ms. Harrison said there were challenges but no fatal flaws.
Senior Assistant City Attorney Grant Kolling said there were no legal
obstructions.
Administrative Services Director Carl Yeats said staff needed to know the
level of risk to the General Fund the Council was willing to accept to move
forward. He had concerns in not co-mingling the Enterprise Fund with the
General Fund.
Council Member Beecham said companies with new projects requiring
financing for a number of years with finance sole requirements increasing,
would structure exit ramps to limit ongoing risks or would return to the
sources of funds, justify their status and ask for a new decision to continue. He asked staff whether such a process was reasonable to fund in $5 million
increments, review the $5 million investment when it was reached, and
request an additional $5 million to continue the project.
City Manager Benest said the General Fund was at risk and the Council
would need to establish the minimum reserve policy for the fund. It would
be a gamble to go below the minimum.
Council Member Beecham referred to the challenge the City was facing on
the revenue side with key sales tax sources threatening to leave. He asked
whether there were specific threats or a continuing competition issue.
Mr. Saccio said the City faced real threats such as, the departure of Hyatt
Rickey’s and auto dealerships due to severe competition in the retail and
hotel sectors.
Council Member Beecham asked if the City were to enter into a public-
10/24/05 99-426
private partnership with financing or asset assistance, would it be possible to
have the third party market and operate the system and have the City
control the access to the splice points because of security reasons.
Acting Assistant Director of Utilities Tomm Marshall said the splice points
could be maintained by the City.
Mr. Benest said the General Fund would need to purchase the asset. The
City could not provide the asset as part of the financing unless it was a
General Fund asset.
Council Member Kishimoto said FTTH was a long-term investment, a number
one economic development tool, and a quality of life tool Palo Alto could
adopt as well as a long-term sustainable budget issue. In getting a better
gauge of the five votes required for the contract, she asked to postpone the
decision until January 2006.
Ms. Harrison suggested the City Attorney might want to summarize his staff
memo dated, October 24, 2005, regarding the fiber trial.
Mr. Baum said the memo was written by staff based on items for the City
Attorney’s office.
MOTION: Council Member Beecham moved to continue the discussion on
the RFP until January 2006.
MOTION DIED FOR LACK OF SECOND
MOTION: Mayor Burch moved, seconded by Freeman, to continue the
discussion on the RFP until January 2006 and to extend the trial with the
soonest date of when the item returned to Council or when the equipment is
no longer serviceable.
Council Member Cordell asked how many votes were required on the
substitute motion.
Mr. Baum said three votes were required as it was not a contract or a
Budget Amendment Ordinance (BAO).
Council Member Freeman asked whether there were legal issues in
extending the trial from December 14, 2005 until it returned to Council or
when the equipment was no longer serviceable
10/24/05 99-427
Mr. Baum said the contracts would expire on December 14, 2005. Five
votes were required to extend the contracts.
Mr. Heitzman said the Internet Service Provider contract (ISP) and the
Customer Service Provider contract would expire in December.
Council Member Freeman asked whether it would cost staff time and effort
to extend through January 2006.
Mr. Heitzman said staff could extend month-to-month, but did not know
whether there were legally ramifications.
Ms. Harrison said there was a legal concern but no administrative issues for
continuance.
Council Member Freeman asked what the legal issue was.
Senior Assistant City Attorney Grant Kolling said the City could not make a
unilateral decision. The City needed to return to Motorola and the ISP for
permission to extend.
Council Member Freeman asked if it could be investigated.
Mr. Kolling said yes.
Council Member Cordell asked whether the Council’s vote was needed to
authorize negotiation to extend the contracts and how many votes were
required.
Mr. Baum said he was unfamiliar with the contract. According to the City
Charter, five votes were required to extend a contract. He understood
Motorola had issues and wanted to terminate the contract.
Council Member Freeman asked if the staff working on the project was
sufficiently trained to take on the RFP process or should it have been
contracted out to professionals.
Mr. Yeats said based on the type of service level, staff would be comfortable
in getting a data service network but needed assistance in completing a full
RFP or a mix of services. Staff was familiar with cable issues but needed
assistance in the area of wireless systems.
10/24/05 99-428
Mr. Benest clarified staff could return with the issue in January 2006, but
currently the five votes were required now to continue the contracts.
Council Member Cordell stated the discussion should be focused on the
process. She asked whether it was possible to continue the item to return
before the contract expired in December. It would allow contacting Motorola
regarding the feasibility of an extension. She was in favor of FTTH but
raised concern about timing and the proposal. She addressed five pages in
staff report CMR:398:05 dealing with the legal and fiscal risks in going
forward with an RFP. It would be a breech of the Council’s responsibilities to
not pay attention to the risks, to trivialize the risks or adopt a cavalier
attitude about probable litigation. She suggested to continue the matter to
a date before the contract expired and to discuss options at the next Council
meeting for extending the contract.
Mayor Burch asked when the next Council meeting would be held.
Ms. Harrison said a Council meeting was scheduled for November 14 and 21,
but not for November 28, 2005. The issue could be scheduled for discussion
before December 14, 2005.
Council Member Beecham said he was not in favor extending the trial.
Ms. Harrison needed clarification on whether the suggestion was to have a motion for a discussion about the overall RFP in January and to bring back
the contracts separately to Council before they expired.
Mayor Burch clarified the possibility for staff to explore and return in two or
three weeks to extend the contracts to provide more time in considering the
fact that a new Council would consider issuing the RFP or to terminate the
contracts in January 2006.
Ms. Harrison asked whether two motions would be made at that evening’s
meeting.
Mayor Burch said yes.
Mr. Benest said if the Council did not have the five votes, he suggested not
allocating staff resources in going to two or three contractors.
Council Member Cordell concurred with Mr. Benest.
10/24/05 99-429
Council Member Freeman urged Council to support the motion and to view
the FTTH as revenue to the City.
Mayor Burch said a motion was required.
Council Member Beecham said there was a motion on the table. He was
willing to give his reasons why he would not vote for extending the trial.
Mayor Burch said there was a motion on the table seconded by Council
Member Freeman.
MOTION WITHDRAWN BY MAKER
Council Member Beecham said staff had stated in their response to Council
Member Kishimoto’s memo that “it is likely that Motorola will not donate
current equipment to the City if it knew that a donation to a third party was
intended.” He asked for the basis of that statement.
Mr. Heitzman said Motorola had the City sign a non-disclosure agreement to
not allow the City to transfer the setup to a third party.
Mr. Kolling clarified the non-disclosure provision in the contract stated the
design or setup for the FTTH trial was deemed confidential and proprietary
information and would continue for a period of 10 years after termination of the contract. It meant the City could not transfer until it received a Waive
and Release from Motorola that the City was no longer bound by the non-
disclosure provision.
Council Member Beecham asked what Motorola’s attitude was currently.
Mr. Heitzman said he had not received any information regarding Motorola’s
current standpoint.
Council Member Beecham said in transferring benefits or subsidies to a non-
profit group, he asked Mr. Kolling to provide more background on whether or
not full services had to be charged and how it compared to the existing
ongoing cost.
Mr. Kolling explained under the doctrine of “gift of public funds” it stated the
City could give away equipment and services if it was for the general public
benefit. The larger the group receiving the equipment and services, the
10/24/05 99-430
more likely the court would consider it as a public benefit. If the gift was
given to PAFTTH, Inc., the City could grant a donation if the City could not
use the equipment. A provision under the public Policy and Procedure Policy
1-18 as well as the Municipal Code allowed the City Manager and
Administrative Services Director to agree to donate the equipment to the
PAFTTH, Inc. In order for PAFTTH, Inc. to secure various services, the City
would be required to enter into a Dark Fiber license agreement and would
need to pay the fees.
Council Member Beecham asked the amount of those charges.
Mr. Heitzman said it was approximately $55,000 per year based on using
Motorola’s equipment and configuration. The cost breakdown would be
$27,000 in annual fees and using their own ISP. Relocation of the
equipment to their neighborhood would be $28,000. PAFTTH, Inc would
have access to the City’s plant that was built for $430,000 which could be a
public fund issue.
Mayor Burch said although the public hearing was closed, he asked the City
Attorney whether he could call upon Marvin Lee for information to assist
Council with their deliberation.
Mr. Baum said the Presiding Officer had the control unless a majority of the
colleagues opposed.
Marvin Lee said they had contacted Motorola and asked to purchase the
equipment. Motorola’s response was their Board had decided to transfer the
equipment to the City of Palo Alto and they were willing for PAFTTH, Inc. to
negotiate with the City to have the equipment. Motorola thought they could
conclude their operation by transferring it to the City. He said PAFTTH, Inc.,
was not approached by the City in preparing the RFP.
Council Member Freeman asked whether there were any cost implications in
moving the trial forward and requested to make a motion.
MOTION: Council Member Freeman moved, to bring the issue back to
Council well before the termination date of December 14, 2005 with the
answers to questions with legal ramifications and cost issues for extending
the trial to a date certain.
MOTION RESTATED: Council Member Freeman clarified the motion was to
come back to the Council well before the December 14, 2005 with all the
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information on the legal and cost issues of extending the trial from
December 14, 2005 until a date certain when the notion of the RFP could
come before a new Council in January 2006.
Council Member Cordell said Council Member Beecham indicated he would
not vote in favor of continuing the trial. She wanted do know whether his
stance had changed since five votes were required to continue.
Council Member Beecham said the cost the City charged would be untenable.
His concern was finding a way to bring FTTH to the City, but he did not want
to cause any distraction to staff and did not want to spend the resources on
anything other that than specific objective.
MOTION DIED FOR LACK OF SECOND
MOTION: Council Member Beecham moved, seconded by Cordell, to carry
the decision on the RFP until January 2006.
MOTION PASSED 5-0, Kleinberg, Morton, Mossar, Ojakian not participating.
Mayor Burch said in January the RFP for FTTH would return to be discussed
by the new Council. The FTTH trial would terminate on December 14, 2005.
COUNCIL MATTERS
11. Colleagues Memo from Vice Mayor Kleinberg and Council Members
Cordell and Mossar re Referral to the Parks and Recreation
Commission.
MOTION: Council Member Cordell moved, seconded by Mossar, to direct
staff to refer this matter about Foothill Park to the Parks and Recreation
Commission and, further, that the Commission give this issue a full public
hearing and consider the following: 1) Possible changes to limits on the
number of people in the Park at a given time; 2) Possible natural resource
protection strategies; 3) Possible changes in maintenance and staffing
requirements; and 4) Possible funding mechanisms to address any increased
costs, including entry fees.
Council Member Cordell said she was making a motion for the Council to
adopt the request made in the Colleagues Memo dated October 24, 2005.
She said Foothills Park was a treasure of nature that belonged exclusively to
Palo Altans because it was purchased by the citizens of Palo Alto. Although
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it was purchased by the citizens it was not created by the citizens and felt
the matter should be discussed. She and her two colleagues recognized
there was not unanimity in the community over lifting the entry restrictions
to the Park. They asked the Council to authorize the Parks and Recreation
Commission (PARC) to convene a community-wide discussion and return to
the Council with their recommendations.
Council Member Mossar said the Park was purchased 40 years prior and
decisions surrounding the Park had not been discussed since its purchase.
She felt having a community-wide discussion could bring about solutions
that would be beneficial to the entire community. The memo referred to a
1969 adoption of a cap of 2000 users per day. Subsequent to writing the
memo, it was her understanding the policy was changed to 1000 users per
day.
City Attorney Gary Baum clarified that in 1992 the number was dropped to
1000 by a Council Ordinance and codified.
Mary Carlstead, 149 Walter Hays Drive, said the Council had made a
promise to the citizens that if they voted to purchase the property for the
new Park, it would be reserved for the residents of Palo Alto. It was a
promise and a covenant with the residents. If the Council made a promise
to gain a vote and a future Council cancels the promise, it would be difficult
to place trust in a Council again. She was against having the Park opened to
non-Palo Altans.
Robert Roth, 2015 Middlefield Road, read an excerpt from the City Councils’
mission statement for Foothill Park, June 19, 1965. The citizens of a land
community should preserve and protect Foothills Park. Overuse of the Park
could drive out the wildlife and destroy the beauty of the Park.
Frances Nitsberg, 1990 Tasso Street, wanted to convey to the PARC that the
Park was a nature preserve.
Mark Tomalomis, 1181 Forest Avenue, said Foothills Park was special
because it was quiet, not overused, and a unique local wildlife sanctuary. In
order to preserve its distinctiveness he asked the Park not be opened to
non-residents.
Aram James felt the talent pool in Palo Alto could develop ways to welcome
neighbors into the Park, as well as keeping the Park pure and secure.
10/24/05 99-433
Wayne Martin, 3687 Bryant Street, said he was not in favor of a discussion.
He suggested weaving a sunset into the discussion to assure if the Park was
opened, it could be closed in the future.
Doug Cox, 45 El Dorado Avenue, asked for the option of giving the Park to
the Open Space District to protect it as a nature Preserve.
Danielle Martell requested the Park be opened to everyone.
Jeff Reese, 565 Newell Road, said Foothill Park was a benefit of living in Palo
Alto and added to the quality of life and should be preserved.
Doug McKenzie, 3378 Vernon Terrace, said the Park provided solitude and
sense of community; he was not in favor of opening the Park to non-
residents.
Jean Olmsted, 240 W. Charleston Road, felt that if the Park was to maintain
its value it needed to be controlled. Non-residents were allowed to visit the
Park as guests, for paid events, and with hiking and school groups.
Bob Moss, 4010 Orme Street, was not in favor of opening the Park to non-
residents. Non-residents could have access and enjoy the Park as a guest.
Retaining the Park for residents only was not bigoted and racist.
Herb Borock, P.O. Box 632, said the agenda item violated the Brown Act, because it did not state the reason for referral. In March 2005, an
Ordinance was adopted Amending Section 2.04.150 of the Municipal Code to
allow access to Foothills Park if entering from the Arastradero Preserve. It
implemented the Council’s action on February 22, 2005, to accept the
County’s money in exchange for opening all Foothills Park trails to non-
residents. He felt a discussion would be a waste of time.
Ellie Gioumousis, 992 Loma Verde Avenue, expressed the importance of
keeping the Park a nature preserve.
Stephanie Munoz, 101 Alma Street, she said a control of people into the Park
could be achieved by implementing a parking fee or parking permit to non-
residents.
Mark Nanevicz, 228 Beverly Street, said he understood the reason for an
open discussion but found it offensive to base the discussion on the idea that
Palo Alto residents were racist and elitist.
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Council Member Morton said there was not a great demand from the general
public to challenge the restriction. More than 90 percent was against
forwarding the issue because it would result into a community war. The
issue had been discussed every 10 years since the commitment was made to
the community to preserve the Park for Palo Alto residents and put into law.
Removing the restrictions was not an issue of political correctness but a
prescription for environmental degradation. When the people voted on
keeping the Park as a nature Preserve, they were preserving it for a special
purpose. He was not in favor of forwarding the issue to the PARC.
Council Member Ojakian asked the City Attorney if the change would require
changing the Ordinance and could be subject to a referendum.
Mr. Baum said yes.
Council Member Ojakian said in 1965, 1973 and 1991 the item was
discussed. It had been vetted over a period of time and he found no
compelling reason to forward it for discussion. The message from the
community was to keep the restrictions. He felt by pursuing the matter it
would end up on the ballot and lead to a contentious campaign. He urged
his colleagues to vote against the motion and to leave the Park in status quo
in terms of how it was handled.
Council Member Kishimoto concurred with Mr. Borock’s comment regarding noticing the item and how it lacked a reason for referral. She questioned its
legality.
Mr. Baum said it was legal. The Brown Act required up to 20 words in
describing an issue, but did not require a great deal of specificity. He felt
the title could have been more detailed.
Council Member Kishimoto opposed the motion and said Foothills Park was a
misnomer and should be renamed as Foothills Preserve. She acknowledged
the Friends of Foothills Park and its volunteer program in their role of
preserving native plants in the Park.
Council Member Cordell said the Colleagues Memo resulted from a joint
meeting with the Council and the PARC. It was a PARC Commissioner who
raised the issue and felt strongly about having the discussion. Council
Member Cordell spoke on the issue of racism and elitism. She said
perceptions were sometimes as important as reality. The Park issues were
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clearly outlined in the memo and did not contain racism and elitism. She
urged the Council to move forward on the discussion.
Vice Mayor Kleinberg referred to a 1991 memorandum from the City
Attorney to the Council to clarify facts addressed at the meeting. She stated
the Park was opened and dedicated in 1965 with limitations of use to Palo
Alto residents only for the first 5 years of its development and subject to
review after that time. A cap of 2000 users per day was codified in 1969
and in 1976 reduced to 1600 user per day and reduced to 1000 in 1992.
The purpose of the Colleagues Memo was to refer the matter to the PARC for
further discussion.
Council Member Freeman said the closing of Jasper Ridge and the
deterioration of the “dish” on Stanford property were examples for the need
to protect open space. The PARC discussion should not be limited to the
four points in the memo, but to investigate what the Preserve meant. She
felt the issue was more than gaining access to the Park, it was about
ecological preservation.
Mayor Burch stated he would vote against the motion because he felt the
issue would ultimately end up on the ballot. Setting restrictions to the Park
was not an issue of racism or bigotry but a desire to keep a Preserve open.
He asked the City Clerk for the cost to place the item on the ballot.
Ms. Rogers said it would cost approximately $200,000 to $300,000 to place an item on the ballot during an off-election year.
Council Member Mossar clarified Jasper Ridge was on private property and
privately funded and different from Foothill Park which was publicly funded.
The intent of bringing the matter forward was as follows: 1) the PARC asked
to have a discussion; and 2) the importance for the community to challenge
itself on that issue.
Council Member Morton did not support the motion.
MOTION FAILED 5-4, Cordell, Freeman, Kleinberg, Mossar yes.
COUNCIL COMMENTS, QUESTIONS, AND ANNOUNCEMENTS
Mayor Burch publicly supported Chief of Police Lynne Johnson and Assistant
City Manager Emily Harrison in their jobs with the City of Palo Alto.
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CLOSED SESSION
The meeting adjourned at 10:43 p.m. to a Closed Session.
12. CONFERENCE WITH CITY ATTORNEY -- EXISTING LITIGATION
Subject: The Embarcadero Publishing Company, dba The Palo Alto
Weekly v. The City of Palo Alto, SCC #1-05-CV-049362
Authority: Government Code section 54956.9(a)
The City Council met in Closed Session to discuss matters regarding existing
litigation as described in Agenda Item No. 12.
Mayor Burch announced there was no reportable action taken.
FINAL ADJOURNMENT: The meeting adjourned at 11:15 p.m.
ATTEST: APPROVED:
City Clerk Mayor
NOTE: Sense minutes (synopsis) are prepared in accordance with Palo Alto
Municipal Code Sections 2.04.180(a) and (b). The City Council and Standing
Committee meeting tapes are made solely for the purpose of facilitating the
preparation of the minutes of the meetings. City Council and Standing
Committee meeting tapes are recycled 90 days from the date of the
meeting. The tapes are available for members of the public to listen to
during regular office hours.
10/24/05 99-437