HomeMy WebLinkAbout2010-02-01 City Council Agenda Packet
1 02/01/10
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
February 01, 2010
6:00 PM
ROLL CALL
CLOSED SESSIONS
Public Comments: Members of the public may speak to the Closed Session item(s); three minutes per speaker.
THE FOLLOWING CLOSED SESSION WILL BE HELD WITH THE CITY LABOR NEGOTIATORS.
1. CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: 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,
Joe Saccio)
Employee Organization: Palo Alto Police Managers’ Association (Sworn)
Authority: Government Code Section 54957.6(a)
CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: City Manager and his designees
pursuant to Merit System Rules and Regulations (James Keene, Kelly
Morariu, Russ Carlsen, Lalo Perez, Sandra Blanch, Marcie Scott, Darrell
Murray, Joe Saccio)
Employee Organization: Palo Alto Peace Officers’ Association
Authority: Government Code Section 54957.6(a)
CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: 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,
Joe Saccio)
2 02/01/10
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.
Employee Organization: Local 521, Service Employees International
Union (SEIU) - SEIU Hourly Unit
Authority: Government Code Section 54957.6(a)
CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: City Manager and his designees
pursuant to Merit System Rules and Regulations (James Keene, Kelly
Morariu, Russ Carlsen, Sandra Blanch, Darrell Murray, Marcie Scott,
Lalo Perez, Joe Saccio)
Employee Organization: Local 521 Service Employees International
Union
Authority: Government Code Section 54957.6(a)
CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: City Manager and his designees
pursuant to Merit System Rules and Regulations (James Keene, Kelly
Morariu, Russ Carlsen, Sandra Blanch, Darrell Murray, Marcie Scott,
Lalo Perez, Joe Saccio)
Employee Organization: Local 1319, International Association of
Firefighters
Authority: Government Code Section 54957.6(a)
CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: City Manager and his designees
pursuant to Merit System Rules and Regulations (James Keene, Kelly
Morariu, Russ Carlsen, Lalo Perez, Sandra Blanch, Marcie Scott, Darrell
Murray, Joe Saccio)
Employee Organization: Palo Alto Fire Chiefs’ Association
Authority: Government Code Section 54957.6(a)
CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: City Manager and his designees
pursuant to the Merit System Rules and Regulations (James Keene,
Kelly Morariu, Russ Carlsen, Lalo Perez, Sandra Blanch, Marcie Scott,
Darrell Murray, Joe Saccio)
Employee Organization: Unrepresented Employee Group Management
and Professional Personnel and Council Appointees
Authority: Government Code section 54957.6(a)
3 02/01/10
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.
7:30 PM or as soon as possible thereafter COUNCIL CONFERENCE ROOM
STUDY SESSION
2. Joint Meeting of Human Relations Commission (HRC) and City Council
Members Concerning Palo Alto Human Relations Issues
ATTACHMENT
8:30 PM or as soon as possible thereafter COUNCIL CHAMBERS
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.
SPECIAL ORDERS OF THE DAY
3. Adoption of a Resolution Expressing Appreciation to David Solnick for
Outstanding Public Service as a Member of the Architectural Review
Board
ATTACHMENT
4. Adoption of a Resolution Expressing Appreciation to Tim Grippi Upon
His Retirement
ATTACHMENT
5. Selection of Candidates to be Interviewed for the Planning and
Transportation Commission
ATTACHMENT
6. Appointments to the Parks and Recreation Commission for Four, Three
Year Terms Ending on December 31, 2012
ATTACHMENT
7. Appointments to the Library Advisory Commission for Three, Three
Year Terms Ending on January 31, 2013
ATTACHMENT
4 02/01/10
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.
8. Appointments to the Storm Drain Oversight Committee for Three, Four
Year Terms Ending on December 31, 2013
ATTACHMENT
CITY MANAGER COMMENTS
CONSENT CALENDAR
Items will be voted on in one motion unless removed from the calendar by two Council Members.
9. Approval of an Electric Enterprise Fund Contract with Diversified Utility
Services, Inc. for a Total Not to Exceed Amount of $3,000,000 for
Providing Overhead Electric Transmission and Distribution System
Construction Services – Capital Improvement Program Budget
EL-98003
CMR 128:10 & ATTACHMENT
10. Utilities Advisory Commission Recommendation to Adopt a Resolution
Opposing the “New Two-Thirds Vote Requirement for Public Electricity
Providers” Initiative
CMR 127:10 & ATTACHMENT
11. Approval of Amendment Number Three to Contract No. S09128567
with Columbia Telecommunications Corporation (CTC) to Retain
Professional Telecommunications Engineering Services in Support of an
Economic Stimulus Grant Application for the Broadband Project in an
Amount Not to Exceed $50,000 During Calendar Year 2010
CMR 130:10 & ATTACHMENT
AGENDA CHANGES, ADDITIONS, AND DELETIONS
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.
ACTION ITEMS
Include: Public Hearings, Reports of Committees/Commissions, Ordinances and Resolutions, Reports of Officials,
and Council Matters
12. Public Hearing: Adoption of an Ordinance Amending Section
21.04.030(a)(30) of Title 21 (Subdivisions) of the Palo Alto
Municipal Code to Revise the Definition of “Private Street”
CMR 118:10 & ATTACHMENT
5 02/01/10
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.
13. Monthly Update on City Activities Related to High Speed Rail Project
(Item Continued from 01/25/10)
CMR 122:10 & ATTACHMENT PUBLIC COMMENT
14. Public Hearing: Consider the Approval of Water Supply Assessment to
Stanford Medical Center Facilities Renewal and Replacement Project
(STAFF REQUESTS ITEM TO BE CONTINUED, BY COUNCIL MOTION, TO 02/08/10)
ATTACHMENT
COUNCIL MEMBER QUESTIONS, COMMENTS, AND ANNOUNCEMENTS
Members of the public may not speak to the item(s).
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.
CITY OF PALO ALTO
MEMORANDUM
TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: CITY MANAGER'S OFFICE
DATE: February 1,2010
SUBJECT: Potential Topics of Discussion for the Joint Study Session Special
Meeting with the Human Relations Commission
Below are the potential topics of discussion for the joint study session with the Human
Relations Commission scheduled for February 1,2010 at 7:30 PM or as soon as possible
thereafter.
1) Role of Human Relations Commission and Major Accomplishments
2) Major current projects of the Human Relations Commission
g er a
Management nalyst
City Manager's Office
anager
2
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO
EXPRESSING APPRECIATION TO DAVID SOLNICK FOR
OUTSTANDING PUBLIC SERVICE AS A MEMBER OF THE
ARCHITECTURAL REVIEW BOARD
WHEREAS, David Solnick served the City of Palo Alto as a member of the Architectural Review
Board from December 4, 2003 through October 15, 2009 and provided excellent leadership in his roles as
Chairperson from November 2, 2006 through September 20, 2007, and as Vice Chairperson from October
20, 2005 through October 19, 2006 and again from April 3, 2007 through July 3, 2008; and
WHEREAS, David Solnick gave tirelessly of his time and talent to guide the development of the
community and to ensure that a high standard of design was achieved, and contributed to the
establishment of the City’s Green Building Ordinance and ARB Awards Programs; and
WHEREAS, in his comprehensive approach to project review, David Solnick contributed his
planning, architectural and urban design knowledge and ideas, as well as an understanding of Palo Alto
issues to improve many important and highly visible projects, including several mixed use projects at San
Antonio (JCC/Bridge-Build), University Circle, SOFA, Lytton, and El Camino Real, commercial projects
(University Walgreens, Embarcadero office, Town & Country Center’s Trader Joe’s, Hamilton’s
Facebook, VMWare and SAP), residential projects (Arbor Real and Elks Lodge redevelopment,
Trumark’s projects), and other projects, and provided insightful input and analysis; and
WHEREAS, David Solnick brought to the Architectural Review Board the expertise of academic
training with both a Masters in Architecture from MIT and a PhD in Molecular Biology, and years of
practical experience as an Architect and an Assistant Professor at Cornell, and was thereby able to suggest
creative, pragmatic solutions to assist the owners of commercial and residential properties in developing
their properties; and
WHEREAS, the City of Palo Alto wishes to acknowledge and thank David Solnick for his personal
commitment and pride in the community, significant personal efforts and vision, and substantial
dedication as a member of the Architectural Review Committee.
NOW, THEREFORE, LET IT BE RESOLVED that the Council of the City of Palo Alto hereby
gratefully records and extends its sincere appreciation and the appreciation of the community to David
Solnick for his faithful and excellent service rendered to the City.
INTRODUCED AND PASSED: February 2010
ATTEST: APPROVED:
____________________ __________________
City Clerk Mayor
APPROVED AS TO FORM:
____________________ ___________________
City Attorney City Manager
February 1, 2010 HONORABLE CITY COUNCIL City of Palo Alto SUBJECT: Selection of Candidates to be interviewed for the Planning and Transportation Commission. Dear Council Members: Enclosed are six applications submitted for one unexpired term ending on July 31, 2012 on the Planning and Transportation Commission. At the Council Meeting on Monday, February 1, 2010, the City Council will select the candidates to be interviewed for the Planning and Transportation Commission, with the interview date to be determined. Each Council Member will receive a selection sheet to use for determining who will be chosen for an interview. The requested action is for each Council Member to fill out the selection sheet. The City Clerk will announce the results. Candidates who receive four or more votes will be scheduled for an interview. The applicants are as follows: Name Address Phone
1. Brent Butler 888 Loma Verde Street
Palo Alto, CA 94303
650-248-4531 H
650-853-3121 W
360-643-3897 C
2. Nakul Correa 2311 Saint Francis Dr.
Palo Alto, CA 94303
650-813-1315 H
650-857-5178 W
650-799-4739 C
3. Leon Leong 138 Byron Street
Palo Alto, CA 94301
650-224-4574 H
650-224-4574 W 4. Corey Levens 666 Glenbrook Dr
Palo Alto, CA 94306
650-857-9246 H
650-387-9859 W
5. Gordana Pavlovic 602 Hawthorne Ave.
Palo Alto, CA 94301
650-330-0484 H
650-483-4622 W 6. Greg Tanaka 2290 Princeton St.
Palo Alto, CA 94306
650-852-8689 H
650-799-8306 W
Respectfully submitted, Ronna Jojola Gonsalves Deputy City Clerk Enclosures cc: All applicants (without enclosure) Donna Grider, City Clerk Curtis Williams, Staff Liaison
February 1, 2010 HONORABLE CITY COUNCIL City of Palo Alto SUBJECT: Appointments to the Parks and Recreation Commission for four three year terms ending on December 31, 2012. Dear Council Members: On Monday, February 1, 2010 the City Council should vote to appoint four three year terms ending on December 31, 2012. The Candidates are as follows:
Jennifer Hetterly
Ed Lauing
Paul Losch
Matt Robinson
Daria Walsh
Voting will be by paper ballot. Five votes are required to be appointed. The first four candidates that receive at least five votes will be appointed to the three year terms. Respectfully submitted, Ronna Jojola Gonsalves Deputy City Clerk cc: Donna Grider, City Clerk Rob De Geus, Staff Liaison
February 1, 2010 HONORABLE CITY COUNCIL City of Palo Alto SUBJECT: Appointments to the Library Advisory Commission for three, three year terms ending on January 31, 2013. Dear Council Members: On Monday, February 1, 2010 the City Council should vote to appoint three, three year terms ending on January 31, 2013. The Candidates are as follows:
Marc Marchiel
Diane Morin
Robert Moss
Theivanai Palaniappan
Mark Weiss
Voting will be by paper ballot. Five votes are required to be appointed. The first three candidates that receive at least five votes will be appointed to the three year terms. Respectfully submitted, Ronna Jojola Gonsalves Deputy City Clerk cc: Donna Grider, City Clerk Diane Jennings, Staff Liaison
February 1, 2010 HONORABLE CITY COUNCIL City of Palo Alto SUBJECT: Appointments to the Storm Drain Oversight Committee for three, four year terms ending on December 31, 2013. Dear Council Members: On Monday, February 1, 2010 the City Council should vote to appoint three, four year terms ending on December 31, 2013. The Candidates are as follows:
Nancy Clark
Rebecca Justman
Hal Mickelson
Richard Whaley Voting will be by paper ballot. Five votes are required to be appointed. The first three candidates that receive at least five votes will be appointed to the four year terms. Respectfully submitted, Ronna Jojola Gonsalves Deputy City Clerk cc: Donna Grider, City Clerk Joe Teresi, Staff Liaison
TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: UTILITIES
DATE: FEBRUARY 1, 2010 CMR:128:10
REPORT TYPE: CONSENT
SUBJECT:, APPROVAL OF AN ELECTRIC ENTERPRISE FUND CONTRACT
WITH DIVERSIFIED UTILITY SERVICES, INC. FOR A TOTAL
NOT TO EXCEED AMOUNT OF $3,000,000 FOR PROVIDING
OVERHEAD ELECTRIC TRANSMISSION AND DISTRIBUTION
SYSTEM CONSTRUCTION SERVICES -CAPITAL
IMPROVEMENT PROGRAM BUDGET EL 98003
RECOMMENDATION
Staff recommends that Council:
1. Approve and authorize the City Manager or his designee to execute the attached contract
with Diversified Utility Services Incorporated for a period of twelve (12) months in the
amount of $1,000,000 to provide overhead construction services.
2. Authorize the City Manager or his designee to renew the contract for up to two additional 12
month periods at a cost of$l,OOO,OOO for the first renewal (FY 2010/2011) and $ 1,000,000
for the second renewal (FY 201112012) for a total contract price of $3,000,000 if the
contractor is responsive to the contract requirements, and the quality of the work is
acceptable during the first twelve months of the contract.
Project Description
The work to be performed under the contract is for providing overhead construction services on the
City of Palo Alto's (City) electric transmission and distribution system. The contractor will be asked
to provide two crews (one four-person crew and one two-person crew) to be used full time by the
City's Electric Operations for a period of twelve (12) months, with an option for City to extend the
term for two additional 12 month periods.
The contractor services mainly include replacements of poles, transformers, air switches, connectors,
insulators, overhead conductors, and any other miscellaneous work related with overhead line
construction. In addition, the crew will be available to assist Electric Operations for general
maintenance and restoration of power during emergency and storm situations.
CMR:128:10 Page 1 of3
Staff is recommending the use of a contractor to perform this work because the City's electric line
workforce does not have adequate staff to meet the current peak workload. Existing staff is barely
keeping up with the new business requests, underground construction, and some maintenance work.
The contractor will be asked to perform overhead services to assist city crews in meeting deadlines
of the different capital improvement projects. Furthermore, there is insufficient city staff to keep up
with the increased number of poles requiring replacement in the current fiscal year and the poles
planned to be replaced over the next three years.
Summary of Bid Process
Bid N amelNumber Overhead Construction ServiceslIFB-133837
Proposed Length of Project 1 year with option to extend for two additional years
Number of Bids Mailed to 7
Contractors
Number of Bids Mailed to Builder's I 1
Exchanges
Total Days to Respond to Bid 21
Pre-Bid Meeting? No
Number of Company Attendees at N/A
Pre-Bid Meeting
Number of Bids Received: 5*
Bid Price Range -Hourly Rate for 4 From $411 to $600
person crew
Bid Price Range -Hourly Rate for 2 From $187 to $300
person crew
*Bid summary provided in Attachment B.
Staff has reviewed all bids submitted and recommends that the bid submitted by Diversified Utility
Services Incorporated be accepted and that Diversified Utility Services Incorporated be declared the
lowest responsible bidder.
Diversified Utility Services Incorporated was selected because of its recent experience with related
projects, full understanding of the RFP, cost, and the foreman's qualifications and experience.
Staff checked references supplied by the contractor for previous work performed by Diversified
Utility Services Incorporated and found no complaints. Staff also checked the contractor's license
with the Contractor's State License Board and found that the contractor has an active license on file.
RESOURCE IMPACT
Funds for this capital improvement project are included in FY 2009-2010 Electric Capital
Improvement Program Budget EL 98003 -and Distribution Operation and Maintenance Budget.
CMR:128:1O Page 2 of 3
Continued work under this contract for FY 201012011 and FY 201112012 will be subject to
satisfactory performance by the contractor and appropriation of required funds in these fiscal years.
This action has no impact on construction work forces since it is being performed by an outside
contractor.
POLICY IMPLICATIONS
The approval of this contract is consistent with existing City policies, including the Council
approved Utilities Strategic Plan Key Strategy No.1, "Operate distribution system in a cost effective
manner" and; Strategy No.2, "Invest in utility infrastructure to deliver reliable service".
ENVIRONMENTAL REVIEW
This project is categorically exempt from California Environmental Quality Act (CEQA), pursuant to
CEQA guidelines section 1530 1 (operation, repair, maintenance of existing facilities), and section
15302 (replacement or reconstruction of existing facilities).
ATTACHMENTS
Attachment "A":
Attachment "B":
Attachment "C":
PREPARED BY:
APPROVED BY:
Contract
Bid Summary
Certification of Nondiscrimination
~ TOMM MARSHALL
Assistant Director of Utilities Engineering
DEPARTMENT HEAD:
;:Of VALERIE O. FONG
Director of Utilities
CITY MANAGER APPROV AL: ---A~~7:>t.L:-£=--i-O!1'1hf-_~r--__ --
JA
Cy
CMR:128:IO Page 3 of3
CONTRACT No. C10133837
(Public work)
Utilities Department
ATTACHMENT A
This Contract, number C1 0133837 dated __ is entered into by and between the City of Palo Alto, a California Charter
City and a municipal corporation of the State of California ("City") , and Diversified Utility Services, Inc. ("Contractor").
For and in consideration of the covenants, terms, and conditions ("the provisions") of this Contract, City and Contractor
("the parties") agree:
1. Term. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract,
and shall expire on the date of recordation of the Notice of Substantial Completion. or, if no such notice is
required to be filed. on the date that final payment is made hereunder. subject to the earlier termination of this
Contract.
2. General Scope of Project and Work. Contractor shall furnish labor. services, materials and equipment in
connection with the construction ofthe Project and complete the Work in accordance with the covenants. terms
and conditions of this Contract to the satisfaction of City. The Project and Work is generally described as
follows:
Title of Project: 2009-2010 Overhead Construction Services, Invitation for Bids (IFB) No. 133837
Bid: $411/hour Four (4) person crew and $187/hour Two (2) person crew
3. Contract Documents. This Contract shall consist of the documents set forth below. which are on file with the City
Clerk and are hereby incorporated by reference. For the purposes of construing. interpreting and resolving
inconsistencies between and among the provisions ofthis Contract. these documents and the provisions thereof
are set forth in the following descending order of precedence.
a. This Contract.
b. Invitation for Bid.
c. Project SpeCifications.
d. Drawings.
e. Change Orders.
f. Bid.
g. Supplementary Conditions.
h. General Conditions.
I. City of Palo Alto Dept. of Public Works Standard Drawings and Specifications (2007).
j. Certificate of Insurance, Performance Surety Bond, labor & Materials (Payment) Surety Bond.
k. Other SpeCifications, or part thereof. not expressly incorporated in the Contract SpeCifications or the
City of Palo Alto Dept. of Public Works Standard Drawings and Specifications (2007).
I. Any other document not expressly mentioned herein which is issued by City or entered into by the
parties.
4. Compensation. In consideration of Contractor's performance of its obligations hereunder. City shall pay to
Contractor the amount set forth in Contractor's Bid in accordance with the provisions of this Contract and upon
the receipt of written invoices and all necessary supporting documentation within the time set forth in the
Contract SpeCifications and the City of Palo Alto Dept. of Public Works Standard Drawings and SpeCifications
(1992), or, if no time is stated. within thirty (30) Days of the date of receipt of Contractor's inVOices.
5. Insurance. On or before the Date of Execution. Contractor shall obtain and maintain the policies of insurance
coverage described in the Invitation For Bid on terms and conditions and in amounts as may be required by the
Risk Manager. City shall not be obligated to take out insurance on Contractor's personal property or the
personal property of any person performing labor or services or supplying materials or equipment under the
Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting
coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for
each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its behalf.
CITY OF PALO ALTO IFB 133837
rev. 12JOO
PAGE 1 OF'
Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 16 ofthis Contract
6. Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers,
employees, agents and representatives harmless from and against any and all claims, demands, liabilities,
losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or
indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts or
the negligent acts or omissions of Contractor, or which results from Contractor's noncompliance with any Law
respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from
Contractor's failure to do anything required under this Contract or for doing anything which Contractor is required
not to do under this Contract, or which arises from conduct for which any Law may impose strict liability on
Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise from
the sole willful acts or negligent acts or omissions of City or any of its Council members, officers, employees,
agents or representatives. This indemnification shall extend to any and all claims, demands, or liens made or
filed by reason of any work performed by Contractor under this Contract at any time during the term of this
Contract, or arising thereafter.
To the extent Contractor will use hazardous materials in connection with the execution of its obligations under
this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City
Council members, officers and employees from and against any and all claims, demands, liabilities, losses,
damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in
connection with or as a result of Contractor's willful acts or negligent acts or omissions under this Contract, under
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. ~~9601-6975, as
amended); the Resource Conservation and Recovery Act (42 U.S.C. ~~6901-6992k, as amended); the Toxic
Substances Control Act (15 U.S.C. ~~2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous
Substance Account Act (Health & Safety Code, 3325300-25395, as amended); the Hazardous Waste Control
Law (Health & Safety Code, 3325100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement
Act (Health & Safety Code, 3325249.5-25249.13, as amended); the Underground Storage of Hazardous
Substances Act (Health & Safety Code, 3~25280-25299. 7, as amended); or under any other local, state or
federal law, statute or ordinance, or at common law.
7. Assumption of Risk. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the
property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting
such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of City or any
of its Council members, officers, employees, agents or representatives.
8. Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by
City of its rights under this Contract A waiver by City of any breach of any part or provision of this Contract by
Contractor shall not operate as a waiver or continuing waiver of any subsequent breach ofthe same or any other
provision, nor shall any custom or practice which may arise between the parties in the administration of any part
or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performance of
Contractor in strict compliance with the covenants, terms and conditions of this Contract.
9. No Exoneration By Inspection: The City has the right, but not the duty, to inspect Contractor's Work. The right of
inspection is solely for the benefit of City. Contractor has the obligation to complete the Work in a satisfactory
manner in compliance with Contract requirements. The presence of a City inspector does not shift that obligation
to the City or relieve Contractor from its obligations to complete the Work in a satisfactory manner in compliance
with the Contract requirements.
10. Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force
pertaining to the Project and Work and this Contract, with the requirement of any bid security or fire underwriters
or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any
Law of any public agency or official as well as with any provision of all recorded documents affecting the Project
site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws
pertaining to nondiscrimination in employment and hazardous materials.
11. Bid Security Bonds. As a condition precedent to City's obligation to pay compensation to Contractor, and on or
before the Date of Execution, Contractor shall furnish to the Project Manager the Bid Security as required under
the InVitation For Bid.
CITY OF PALO ALTO IFB 133837 PAGE 2 OF i>
rev. 12100
12. Representations and Warranties. In the supply of any materials and equipment and the rendering of labor and
services during the course and scope of the Project and Work, Contractor represents and warrants:
a. Any materials and equipment which shall be used during the course and scope of the Project and Work
shall be vested in Contractor;
b. Any materials and equipment which shall be used during the course and scope of the Project and Work
shall be merchantable and fit to be used for the particular purpose for which the materials are required;
c. Any labor and services rendered and materials and equipment used or employed during the course and
scope of the Project and Work shall be free of defects in workmanship for a period of one (1) year after
the recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on
the date that final payment is made hereunder;
d. Any manufacturer's warranty obtained by Contractor shall be obtained or shall be deemed obtained by
Contractor for and in behalf of City.
e. Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request,
whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and
correct at the time such information is submitted or made available to the City;
f. Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the
terms and conditions of Contractor's Bid, except as may be permitted by the Invitation For Bid;
g. Contractor has the power and authority to enter into this Contract with City, that the individual executing
this Contract is duly authorized to do so by appropriate resolution, and that this Contract shall be
executed, delivered and performed pursuant to the power and authority conferred upon the person or
persons authorized to bind Contractor;
h. Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project
Manager or any other person who has directly contributed to City's decision to award the contract to
Contractor;
I. There are no unresolved claims or disputes between Contractor and City which would materially affect
Contractor's ability to perform under the Contract;
j. Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions,
certifications, and other written information as may be requested of Contractor by City from time to time
during the term of this Contract;
k. Contractor and any person performing labor and services under this Project are duly licensed by the
State of California as required by California Business & Professions Code Section 7028, as amended;
and
I. Contractor has fully examined and inspected the Project site and has full knowledge of the physical
conditions of the Project site.
13. ASSignment. This Contract and the performance required hereunder is personal to Contractor, and it shall not be
assigned by Contractor. Any attempted assignment shall be null and void.
14. Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time
or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or
registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or
required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim
to City.
15. Audits by City. During the term of this Contract and for a period of not less than three (3) years after the
CITY OF PALO ALTO IFB 133837 PAGE 3 OF6
rev. 12100
expiration or earlier termination of this Contract, City shall have the right to audit Contractor's Project-related and
Work-related writings and business records, as such terms are defined in California Evidence Code Sections 250
and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours,
during the regular business hours of City,
16, Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents,
designations, notices, offers, requests and statements given by either party to the other shall be in writing and
shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States
mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission,
if sent to the telephone FAX number set forth below during regular business hours of the receiving party and
followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in
accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery and
service by facsimile transmission.
To City:
Copy to:
To Contractor:
City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
City of Palo Alto
Dept -Utilities
Division -Engineering
Address -1007 Elwell Court
Palo Alto, CA 94303
Jim Thompson, Project Manager
Diversified Utility Services, Inc
3105 Unicorn Road
Bakersfield, CA 93380
Attn: Leigh Ann Anderson
17. Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the
Charter of the City of Palo Alto, Any charges hereunder for labor, services, materials and equipment may accrue
only after such expenditures have been approved in advance in writing in accordance with applicable Laws. This
Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are not
appropriated for the following fiscal year, or (ii) at any time within a fiscal year in the event that funds are only
appropriated for a portion of the fiscal year and funds for this Contract are no longer available, This Section 17
shall control in the event of a conflict with any other provision of this Contract.
18. Miscellaneous.
a. Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor's
bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor.
b, Consent. Whenever in this Contract the approval or consent of a party is required, such approval or
consent shall be in writing and shall be executed by a person having the express authority to grant such
approval or consent.
c. Controlling Law. The parties agree that this Contract shall be governed and construed by and in
accordance with the Laws of the State of California.
d. Definitions. The definitions and terms set forth in Section 1 of the City of Palo Alto Dept. of Public
Works Standard Drawings and Specifications (1992) of this Contract are incorporated herein by
reference.
CITY OF PALO ALTO IFB 133837
rev. 12100
PAGE 4 OFt
e. Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to
perform its obligations under this Contract which directly results from an Act of God or an act of a
superior governmental authority.
f. Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the
construction or interpretation of any part of this Contract.
g. Incorporation of Documents. All documents constituting the Contract documents described in Section 3
hereof and all documents which may, from time to time, be referred to in any duly executed amendment
hereto are by such reference incorporated in this Contract and shall be deemed to be part of this
Contract.
h. Integration. This Contract and any amendments hereto between the parties constitute the entire
agreement between the parties concerning the Project and Work, and there are no other prior oral or
written agreements between the parties that are not incorporated in this Contract.
I. Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless
such modification is agreed to in writing and signed by the parties.
j. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or
other stipulation in the Contract shall define or otherwise control, establish, or limit the performance
required or permitted or to be required of or permitted by either party. All provisions, whether
covenants or conditions, shall be deemed to be both covenants and conditions.
k. Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or
other writing, which authorizes any director, officer or other employee or partner to act for or in behalfof
Contractor or which authorizes Contractor to enter into this Contract.
I. Severability. If a court of competent jurisdiction finds or rules that any provision ofthis Contract is void
or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect.
m. Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as
an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to
any rights and benefits accorded or accruing to the City Council members, officers or employees of
City, and Contractor expressly waives any and all claims to such rights and benefits.
n. Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply to
and bind, the successors and assigns of the parties.
o. Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the
calculation of time hereunder, the time in which an act is to be performed shall be computed by
excluding the first Day and including the last. If the time in which an act is to be performed falls on a
Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be
extended to the following Business Day.
p. Alternative Dispute Resolution. The parties shall endeavor to resolve any disputes or claims ariSing out
of or relating to this Contract by mediation, which, unless the parties agree otherwise, shall be
conducted under the auspices of the JudiCial Arbitration and Mediation Service (JAMS), San Jose,
Califomia. The intent of the parties is that the mediation shall proceed in advance of litigation; however,
if any party should commence litigation before the conclusion of mediation, such litigation, including
discovery, shall be stayed pending completion of mediation, and by executing this Contract the parties
stipulate to mediation in accordance with Santa Clara County Superior Court Local Rule 1.15 or Rule 2-
3(b) of the ADR Local Rules of the U.S. District Court for the Northern District of California, as such
rules may be amended from time to time. The parties shall share the cost of the mediation, including
the mediator's fee, equally. Any written agreement reached in mediation shall be enforceable pursuant
to California Code of Civil Procedure § 664.6, as amended.
q. Venue. Unless the parties mutually agree otherwise, mediation shall take place in San Jose, California.
CITY OF PALO ALTO IFB 133837 PAGE 5 OF Ii
rev. 12100
In the event that litigation is commenced by any party hereunder, the parties agree that such action
shall be vested exclusively in the state courts of California in the County of Santa Clara or in the United
States District Court for the Northern District of California.
r. Recovery of Costs. Each Party shall bear its own costs, including attorney's fees, through the
completion of mediation. If the claim or dispute is not resolved through mediation, or if litigation is
necessary to enforce a settlement reached at mediation pursuant to California Code of Civil Procedure
§ 664.6, as amended, then the prevailing party in any subsequent litigation may recover its reasonable
costs, including attorney's fees, incurred subsequent to conclUSion of the mediation.
s. Flow-down. Contractor agrees to include provisions of this Contract relating to Alternative Dispute
Resolution, Venue. and Recovery of Costs in any subcontracts or major material purchase agreements
which it enters into in connection with this Contract, and to require its subcontractors to include those
provisions in any SUb-contracts or major material purchase agreements, such that any mediation or
litigation of any claim or dispute asserted by a subcontractor or major material supplier will be
consolidated with any related claim or dispute between the Contractor and the City. Should the
Contractor fail to do so, such that the City is required to defend an action brought by a subcontractor or
material supplier inconsistent with the Alternative Dispute and Venue provisions of this Contract,
Contractor shall indemnify City for City's costs of defense, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties have by their duly apPOinted representatives executed this Contract in the city of
Palo Alto, County of Santa Clara, State of California on the date first stated above.
CITY OF PALO ALTO
City Manager
APPROVED AS TO FORM:
Senior Asst. City Attorney
CITY OF PALO ALTO IFB 133837
rev. 12100
DIVERSIFIED UTILlTIY SERVICES, INC.
8y: __________________________________ _
Title: ___________________ _
PAGE 6 OF'
ATTACHMENT B
BID SUMMARY CITY OF PALO ALTO
r Invitation for Bid \133837 ~-
Title: . 2009-2010 Overhead Construction Services I CB 12/08/09 ~
List of Bidders (Company Name) Base Bid Total Alternate #1 Alternate #2 I Alternate #3 Grand Total I i ,
I -
Diversified Utility Services $411.001Hr $187/Hr
Pacheco Utility Line Builders, Inc. $459.001Hr $209/Hr
Michels Power $470/Hr $2051Hr
r--. •
PAR Electncal Contractors $553.39/Hr $273.45IHr
International Line Builders, Inc $6001Hr $3001Hr
.-
i ~
! i ,
I
~. _ ..
ATTACHMENT C
n
CERTIFICATlON OF NONDISCRIMINATION FORM 410
PROJECT: 2009· 2010 Overhead Construction Services
Certification of Nondiscrimination: As suppliers of goods and/or services to the City of Palo Alto in excess
of $5,000, the firm, contractor or individual(s) listed below certify that: they do not and in the performance of
this contract they will not discriminate in employment of any person because of race, skin color, gender, age,
religion, disability, national origin. ancestry. sexual orientation, housing status. marital status, familial status,
weight or height of such person; and further certify that they ar~ in compliance with all Federal, State and local
directives and executive orders regarding nondiscrimination in employment.
Firm: Diversified utility Services, ,Inc. Date: December 4, 2009
Officer
",
TO:
FROM:
DATE:
REPORT TYPE:
SUBJECT:
10
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT: UTILITIES
FEBRUARY 1,2010 CMR: 127:10
CONSENT
Utilities Advisory Commission Recommendation to Adopt a
Resolution Opposing the "New Two-thirds Vote Requirement for
Public Electricity Providers" Initiative
RECOMMENDATION
Staff and the Utilities Advisory Commission (UAC) recommend that the City Council adopt a
resolution opposing the "New Two-Thirds Vote Requirement for Local Public Electricity
Providers" Ballot Initiative.
DISCUSSION
The "New Two-Thirds Vote Requirement for Local Public Electricity Providers" constitutional
amendment initiative was proposed by a law firm representing the Pacific Gas and Electric
Company (PG&E) and was originally titled the "Taxpayers Right to Vote Act". The San
Francisco Local Agency Formation Commission (LAFCo) argued that this title was misleading,
and as a result, the Attorney General renamed the initiative to its current title. Almost 700,000
signatures needed to be collected by December 21st in order to put the initiative on the June
2010 ballot. The initiative has qualified to be placed on the June 2010 statewide ballot
Under existing law, most cities can annex new areas that include the expansion of electric service
by the approval of a simple majority of the voters in the area to be annexed. The ballot initiative
would change existing law by requiring approval by two-thirds of the voters before any
expansion of municipal electric service could occur. This vote must be obtained from both the
existing service area and the new area to be annexed. In addition, any city or county pursuing
Community Choice Aggregation (CCA) or the formation of a new publicly owned electric utility
would need to obtain two-thirds voter approval within the local jurisdiction before proceeding.
Authorized by the state legislative in 2007, CCA enables California cities and counties -or
groups of cities and counties -to supply electricity to the customers within their jurisdiction.
There are exemptions to the two-thirds voter requirement outlined in the proposed initiative.
Voter approval would not be required for electricity expansions within the city's local
CMR: 127:10 Page 1 of3
jurisdiction when the local government is the sole electric delivery service provider within those
boundaries. Also, a two-thirds vote would not apply to the purchase of renewable electricity or
to service for the city's own use.
These new voting requirements would be the predominant impact of the ballot initiative to
existing publicly owned electric utilities. However, the initiative's language is ambiguous, and it
is unclear if a two-thirds vote would also be required for the development of non-renewable
generation facilities or transmission lines located outside of the city's jurisdiction. Further
questions raised as a result of the ambiguities of the initiative language are described in
Attachment D, "PG&E Initiative educational piece", prepared by the Northern California Power
Agency (NCPA). The Legislative Analyst's Office concluded that the proposed initiative would
create an unknown impact to state and local government costs and revenues, due to the potential
impacts on electricity rates and publicly owned electric utility operations.
It is important to note that employees and elected officials of public agencies, such as the City of
Palo Alto, are restricted from using public funds or resources to oppose or support a ballot
initiative. However, public agency employees are allowed to educate the public on an initiative,
while remaining neutral on the issues. A public agency may also officially take a support or
oppose position on an initiative through their local governing board during an open meeting,
such as a Utilities Advisory Commission or Council meeting.
BOARD/COMMISSION REVIEW AND RECOMMENDATIONS
The UAC considered staff's recommendation that Council oppose the ballot initiative at its
January 6, 2010 meeting. Commissioners questioned what the impacts would be for Palo Alto.
Staff responded that the requirement for a vote could be triggered by the City's investment in an
asset outside of the City such as an electrical transmission line or a power generation project,
although renewable power generation projects are exempt from the requirement.
The commission voted unanimously (7-0) to recommend that the City Council oppose the "New
Two-Thirds Requirement for a Local Public Electricity Providers" ballot initiative and that the
City Council reach out to other entities as it sees fit. Draft minutes from the UAC meeting are
included as Attachment F.
RESOURCE IMPACT
There is no incremental resource impact associated with adoption of a resolution opposing the
ballot initiative.
If the ballot initiative were approved, the cost for Palo Alto is uncertain, but could be substantial
if it was found to apply to investments outside the City such as electric transmission or
generation facilities.
POLICY IMPLICATIONS
This recommendation is consistent with the Council-approved Utilities' legislative priorities to:
1. Preserve/enhance local flexibility in the control and oversight of matters impacting utility
programs and rates for our customers.
CMR: 127:10 Page 2 of 3
2. Support efforts to maintain or improve the reliability of the supply, transmission and
distribution infrastructures.
3. Maintain the City's ability to provide reliable, sustainable, and competitively-priced
utility service.
ENVIRONMENTAL REVIEW
Adoption of this Resolution does not meet the California Environmental Quality Act's definition
of a project pursuant to Public Resources Code Section 21065, and therefore, no environmental
review is required.
ATTACHMENTS
A. Resolution of the City of Palo Alto Opposing the "New Two-Thirds Requirement for Local
Public Electricity Providers" Ballot Initiative
B. Letter requesting California Attorney General prepare title and summary for proposed ballot
initiative
C. California Attorney General title and summary
D. PG&E Initiative educational piece prepared by NCPA
E. Excerpt from Draft UAC Meeting Minutes of January 6,2010
PREPARED BY: £/DEBRA LLOYD
").> Senior Resource Planner
REVIEWED BY: Of JANE O. RA TCHYE
(["Utilities Assistant Director, Resource Management
DEPARTMENT APPROVAL: VOf
irector of Utilities
CITY MANAGER APPROVAL:
CMR: 127:10 Page 3 of 3
ATTACHMENT A
NOT YET APPROVED
Resolution No. ---
Resolution of the Council of the City of Palo Alto Opposing
the "New Two-Thirds Vote Requirement for Public Electricity
Providers" Initiative
WHEREAS, the "New Two-Thirds Vote Requirement for Public Electricity
Providers" Initiative (Initiative) has qualified for the June 8, 2010 Statewide Primary Election;
and
WHEREAS, the Initiative is a Constitutional Amendment; and
WHEREAS, the Initiative would require a public power provider to obtain a 2/3
voter majority in both existing territory and proposed territory expansions prior to spending
funds for a utility system expansion; and
WHEREAS, the Initiative would prevent elected representatives or a simple majority
of citizens from determining whether they want to have public power in any newly annexed
areas; and
WHEREAS, the Initiative would prevent a simple majority of citizens from
determining whether they want Community Choice Aggregation, a program authorized by the
state legislature in 2007 that allows a city, county or group of government agencies to procure
and provide electricity to residents and businesses within its jurisdictions; and
WHEREAS, although the City of Palo Alto is already a public power community,
Palo Alto wishes to support citizens' ability to opt for locally controlled public power in
communities throughout the state; and
WHEREAS, the proposed Initiative contains a number of ambiguities that could
affect the City's electric utility operations within the City'S existing jurisdiction, including
potentially requiring a 2/3 voter majority before the City can make investments in transmission
or generation facilities to serve its electric load; and
WHEREAS, the Legislative Analysts Office concluded that the Initiative would
create an unknown impact to state and local government costs and revenues, depending on future
voter decisions, due to the potential impacts on electricity rates and publicly owned electric
utility operations.
NOW, THEREFORE, the Council of the City of Palo Alto does resolve as follows:
SECTION 1. The Council by adopting this resolution does hereby oppose the
Initiative on the June 2010 ballot.
1
100121 syn 6051064
NOT YET APPROVED
SECTION 2. The City Council and staff are authorized to provide impartial
informational materials on the Initiative as may be lawfully provided by the City's
representatives. No public funds shall be used to campaign for or against the initiative.
SECTION 3. The residents of the City of Palo Alto are encouraged to become well
informed on the Initiative and its possible impacts.
SECTION 4. The Council finds that adoption of this resolution does not meet the
California Environmental Quality Act's definition of a project pursuant to Public Resources
Code Section 21065, and therefore, no environmental impact assessment is necessary.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST: APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
Deputy City Attorney City Manager
Director of Administrative Services
Director of Utilities
2
100121 syn 6051064
May 28.2009
VIA PERSONAL DELIVERY
The Honorable Edmund G. Brown, Jr. .
Attorney General
1300 I Street
Sacramento, CA 95814
Attention: Krystal Paris, Initiative Coordinator
ATTACHMENTB
09-0015
~CE'VEa
JUN 0 1 2009 ;~::..,
INITIATIVE COORDINATOR
ATTORNEY GENERAL~S OFFICE .
Re: . Request for Title and Summary-Initiative Constitutional Amendment
Dear Mr. Brown:
. Pursuant to Article II, Section 1 O(d) of the California Constitution and Section
. 9002 of the Elections Code, I hereby request that a title and summary be prepared for
the attached initiative entitled "The Taxpayers Right to Vote Act" as provided by law.
Included with this submission is the required proponent affidavit signed by myself as
proponent of this measure pursuant to section 9608 of the California Elections Code.
My address as a registered voter is provided and attached to this letter. along with a
check for $200.00. .
. All inquires or correspondence relative to this initiative should be directed to
Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, 1415 L Street, Suite 1200,
Sacramento, CA 95814,(916) 446-6752, Attention: Steve Lucas (telephone: 415/389-
6800).
Thank you for your assistance. .
. Sincerel1i
f'
RobVrt L~e Pence, ~ro~onent
Enclosure: Proposed . Initiative
Section 1. FINDINGS AND DECLARATIONs 09-0015
The People do find and declare:
A. This initiative shall be known as "The Taxpayers Right to Vote
Act."
B .. California law requires two-thirds voter approval for tax increases
for specific purposes.
C. The politicians in local govenunents should be held to the same
standard before using public funds, borrowing, issuing bonds guaranteed by
ratepayers or taxpayers, or obtaining other debt or fmancing to start or
expand electric delivery service, or to implement a plan to become an
. aggregate electricity provider.
D.Local govenunen~ often start or expand electric delivery service,.
or implement a plan to become an aggregate electricity provider, without
approval by a vote of the people.
E. Frequently the start-up, expansion, or implementation plan
requires either construction or acquisition of facilities or other services
necessary to deliver the electric service, to be paid for with public funds,
borrowing, bonds guaranteed by ratepayers or taxpayers, or other debt or
financing.
F. The source of the public funds, borrowing, debt, and bond
financing is generally the electricity rates charged to ratepayers as well as
surcharges or taxes imposed on taxpayers. .
G. Such use of public funds and many forms of borrowing, debt or
. financing do not presently require approvai by a vote of the people, and
where a vote is required, only a maj()rity vote may be required.
Section 2. STATEMENT OF PURPOSE
A. The purpose of this initiative is to guarantee to ratepayers and
taxpayers the right to vote any time a local government seeks to use public ..
funds, public debt, bonds or liability, or taxes or other fmancing to start or
1
expand electric delivery service to a new territory or new customers, or to
implement a plan to become an aggregate electricity provider.
B. If the start-up or expansion requires the construction or acquisition
of facilities or services that will be paid for with public funds, or financed
· through bonds to be paid for or guaranteed by ratepayers or taxpayers, or to·
be paid for by other forms of public expenditure, borrowing, liability or debt,
then two-thirds of the voters in the territory being served and two-thirds of
· the voters in the territory to be served, voting at an election,must approve
the expenditure, borrowing, liability or debt. Also, if the implementation of a
plan to become an aggregate electricity provider requires the use of public
funds, or financing through bonds guaranteed by ratepayers or taxpayers, or
other forms of public expenditure, borrowing, liability or debt" then two-
· thirds of the voters in. the jurisdiction, voting at an election, must app~ove the
expenditUre, borrowing, liability or debt. . .
Section 3. Section 9.5 is added to Article XI of the California Constitution
to read:
Sec. 9.5.
(a) Except as provided in subdivision (h), no local government shall, at
any time, incur any bonded or other indebtedness or liability in any
manner or use any public funds for the construction or acquisition of
facilities, works, goods, commodities, products or serVices to
establish or expand electric delivery service, or to implement a plan .
to become ari aggregate· electricity provider, without the assent of
two-thirds of the voters within the jurisdiction of the local
government and two-thirds of the voters within the territory to be
served, if any, voting at an election to be held forthe purpose of
. approving the use of any public funds, or incurrihg any liability, or
incurring any bonded or other borrowing or indebtedness.
(b) "Local government" means a municipality or muniCipal corporation,·
a municipal utility district, a public utility district, an irrigation
district, a city, including a charter City, a . county, a city and county, a
district, a special district, an agency, or a joint powers authority that
includes one or more of these entities. .
2
( c) "Electric delivery service" means (1) transmission of electric power
directly to retail end-use customers, (2) distribution of electric power
to customers for resale or directly to retail end-use customers, or (3)
sale of electric power to retail end-use customers. .
(d) "Expand electric delivery service" does not include (1) electric
delivery service within the' existing jurisdictional boundaries of a local
government that is the sole electric delivery service provider within
those boundaries, or (2) continuing to provide electric delivery service
. to customers already receiving electric delivery service from the local
government prior to the enactment of this section.
(e) "A plan to become an aggregate electricity provider" means. a plan by
a local government to provide community choice 'aggregation services
or to replace the authorizedJocal public utility in whole or in part for
electric delivery service to any retail electricity customers within its
jurisdiction.
(t) "Public funds" means, without limitation, any taxes, funds, cash,
income, equity, assets, proceeds of bonds ot othtfr financing or
:borrowing, or rates paid by ratepayers. "Public funds'; do not include"
federal funds.
(g) "Bonded or other indebtedness or liability" means, without limitation,
any borrowing, bond, note, guarantee or other indebtedness, liability
or obligation, direct or indirect, of any kind, contingent or otherwise, .
or use of any indebtedness, liability or obligation for reimbursement
of any moneys expended from taxes, cash, income, equity, assets,
contributions by ratepayers, the treasury of the local government or '
other sources.
(h) This section shall not apply to any bonded or other indebtedness or
liability or use of public funds that (1) has been approved by the
voters within the jurisdiction of the local government and within the '
. territory to be served, if any, prior to the enactment of this section; or
(2) is solely for the purpose of purchasing, providing or supplying
renewable electricity from biomass, solar thermal, photo voltaic, wind,
geothermal, fuel cells using renewable fuels, small hydroelectric
generation of30 megawatts or less, digester gas, municipal solid
waste conversion, landfill gas, ocean wave, ocean thenn,al, or tidal
3
current, or providing electric delivery service for the local
government's own end use and not for electric delivery service to
others. .
Section 4. Conflicting Measures
A. This initiative is intended to be comprehensive. It is the intent of
the People that in the event that this initiative and another imtiative relating
to the same subject appear on the same statewide election ballot, the
provisions of the other initiative or initiatives are deemed to be in conflict
with this initiative. In the event this initiative shall receive the greater
number of affirmative votes, the provisions of this initiative shall prevail in
their entirety, and all provisions of the other initiative or initiatives shall be
null and void.
B. If this initiative is approved by voters but superseded by law or by
any other conflicting ballot initiative approved by the voters at the same
. election, and the conflicting law or ballot initiative is later held invalid, this
initiative shall be self-executing and given full force of law.
Section 5. Severability
. The provisions· of this initiative are severable. If any provision of this·
initiative or its application is held to be invalid, that invalidity shall nof
affect other provisions or applications that can be given effect without the
invalid provision or application. . .
4
ATTACHMENT C
Date: July 23, 2009
Initiative No.: 09-0015
The Attorney General of California has prepared the following title and summary of the chief
purpose and points of the proposed measure:
NEW TWO-THIRDS VOTE REQUIREMENT FOR LOCAL PUBLIC ELECTRICITY
PROVIDERS. INITIATIVE CONSTITUTIONAL AMENDMENT.
Requires local governments to obtain the approval of two-thirds of the voters before providing
electricity to new customers or expanding such service to new territories if any public funds or
bonds are involved. Requires same two-thirds vote to provide electricity through a community
choice program if any public funds or bonds are involved. Requires the vote to be in the
jurisdiction of the local government and any new territory to be served. Provides exceptions to
the voting requirements for a limited number of identified projects. Summary of estimate by
Legislative Analyst and Director of Finance of fiscal impact on state and local governments:
Unknown impact on state and local government costs and revenues, depending on future voter
decisions, due to the measure's potential effects on electricity rates and publicly owned utility
operations. (09-0015.)
ATTACHMENT D
Prepared by Northern California Power Agency's General Counsel Mike Dean for presematIon to
California Legislative Staff on October 9, 2009
The "New Two-Thirds Requirement for Local Public Electricity Providers" Initiative
Supported by: Pacific Gas and Electric Company
Stated Intent:
"The purpose of this initiative is to guarantee to ratepayers and taxpayers the right to vote any
time a local government seeks to use public funds, public debt, bonds or liability, or taxes or
other financing to start or expand electric delivery service to a new territory or new customers, or
to implement a plan to become an aggregate electricity provider." (Initiative sec. 2A)
Operative Provision of Initiative: Section 9.5 is added to Article XI of the California
Constitution
(a) "Except as provided in subdivision (h), no local government shall, at any time, incur any
bonded or other indebtedness or liability in any manner or use any public funds for the
construction or acquisition of facilities, works, good, commodities, products or services, to
establish or expand electric delivery service, or to implement a plan to become an aggregate
electricity provider without the assent of two-thirds of the voters within the jurisdiction of
the local government and two-thirds of the voters within the territory to be served, if any
voting at an election to be held for the purpose of approving the use of any public funds, or
incurring any liability, or incurring any bonded or other borrowing or indebtedness.
(b) "Local government" means a municipality or municipal corporation, a municipal utility
district, a public utility district, an irrigation district, a city, including a charter city, a
county, a city and county, a district, a special district, an agency, or a joint powers authority
that includes one or more of these entities.
(c) "Electric delivery service" means (1) transmission of electric power directly to retail end-
use customers, (2) distribution of electric power to customers for resale or directly to retail
end-use customers, or (3) sale of electric power to retail end-use customers.
(d) "Expand electric delivery service" does not include (1) electric delivery service within the
existing jurisdictional boundaries of a local government that is the sole electric delivery
service provider within those boundaries, or (2) continuing to provide electric delivery
service to customers already receiving electric delivery service from the local government
prior to the enactment of this section.
(e) "A plan to become an aggregate electricity provider" means a plan by a local government to
provide community choice aggregation services or to replace the authorized local public in
whole or in part for electric delivery service to any retail electricity customers within its
jurisdiction.
(f) "Public funds means, without limitation, any taxes, funds, cash, income, equity, assets,
proceeds of bonds or other financing or borrowing, or rates paid by ratepayers. "Public
funds" do not include federal funds.
(g) "Bonded or other indebtedness or liability" means, without limitation, any borrowing, bond,
note, guarantee or other indebtedness, liability or obligation, direct or indirect, of any kind,
contingent or otherwise, or use of any indebtedness, liability or obligation for imbursement
Page 1 of 5
Prepared by Northern California Power Agency's General Counsel Mike Dean for presentation to
California Legislative Staff on October 9,2009
of any moneys expended from taxes, cash, income, equity, assets, contributions by
ratepayers, the treasury if the local government or other sources.
(h) "This section shall not apply to any bonded indebtedness or liability or use of public funds
that (1) has been approved by the voters within the jurisdiction of the local government and
within the territory to be served, if any, prior to the enactment of this section; or ... (2) is
solely for the purpose of purchasing, providing, or supplying renewable electricity from
biomass, solar thermal, photovoltaic, wind, geothermal, fuel cells using renewable fuels,
small hydroelectric generation of 30 megawatts or less, digester gas, municipal solid waste
conversion, landfill gas, ocean wave, ocean thermal or tidal current or providing electric
delivery service for the local government's own end use and not for electric delivery service
to others."
Ambiguities make it difficult to assess the impact
Uses non-standard terms
Is the effect retroactive?
Subdivision (h) indicates an exemption if the indebtedness or use of funds was approved by the
voters " ... prior to the enactment of this section ... " (Sec. 9.5(h) )
Municipally Owned Utilities are very unlikely to have ever sought such approval in the past as it
was not required. If the use of indebtedness/use of funds began prior to enactment, but was not
approved by the voters, does this forbid continued use?
What does it mean to "Expand electric delivery service"-
.... what does "sole" mean?
'''Expand electric delivery service' does not include (1) electric delivery service within the
existing jurisdictional boundaries of a local government that is the sole electric service provider
within those boundaries ... "
. Does this apply where an Investor Owned Utility serves just a couple of customers, by agreement
with the Municipal Utility? Lodi example of 23 IOU accounts left from past annexations.
Does this apply to "distributed power" generated by the customers themselves, such as solar?
•.•• what does "boundaries" mean?
'Expand electric delivery service' does not include (1) electric delivery service within the
existing jurisdictional boundaries of a local government that is the sole electric service provider
within those boundaries ... "
Does this mean current corporate limits, or might it mean the sphere of influence or other service
area?
Page 2 of 5
Prepared by Northern California Power Agency's General Counsel Mike Dean for presentation to
California Legislative Staff on October 9,2009
What does it mean for a Joint Powers Agency that has no "existing jurisdictional
boundaries"?
.... may current customers be served?
'Expand electric delivery service' does not include (1) electric delivery service within the
existing jurisdictional boundaries of a local government that is the sole electric service
provider within those boundaries ... "
Mayan MOU that is not the sole provider continue to serve current customers without a 2/3
vote?
.... are new customers inside city ok?
"Expand electric delivery service does not include ... or (2) continuing to provide electric
delivery service to customers already receiving electric delivery service ... prior to the enactment
of this section."
Maya Municipal Utility that is not the sole provider sign up new customers even within its city
limits without a 2/3 vote?
.... may increased load be served?
"'Expand electric delivery service' does not include ... Of (2) continuing to provide electric
delivery service to customers already receiving electric delivery service from the local
government prior to the enactment of this section."
Maya Municipal Utility already serving a customer outside its boundaries serve the increased
load of that customer without a vote?
.... may new property owners with old load be served ?
Expand electric delivery service' does not include ... or (2) continuing to provide electric delivery
service to customers already receiving electric delivery service from the local government prior
to the enactment of this section."
Is a new property owner a "customer already receiving electric delivery service" even when the
load is the same?
What does it mean to "purchase, provide or supply"?
Section does not apply to funds used" ... solely for the purpose of purchasing, providing, or
supplying renewable electricity ... " (sec. 9(h) )
Page 3 of 5
Prepared by Northern California Power Agency's General Counsel Mike Dean for presentation to
California Legislative Staff on October 9, 2009
Strongly implies it does apply to use of funds for the purchase of any other type of electricity.
Is the purchase of property or the construction of generation, even for renewable electricity,
exempt?
What does "renewable electricity" mean?
The exemption in (h) applies to the "purchasing, providing or supplying renewable electricity
from ... small hydroelectric generation of 30 megawatts or less ... "
If a Central Valley Project customer purchases less than 30 MW from Shasta dam, is that
included in the exemption, or must the dam itself be less than 30 MW?
What does it mean?
"(c) 'A plan to become an aggregate electricity provider' means a plan ... to provide community
choice aggregation services or to replace the authorized local public utility either in whole or part
for electric delivery service to any retail customer within its jurisdiction."
Is any replacement of an Investor Owned Utility customer by an Municipal Utility
subject to a vote?
Is any annexation subject to a 2/3 vote, despite LAFCO approval?
What do the "transmission" provisions mean?
" ... no local government shall ... use any public funds ... for the construction or acquisition of
facilities ... to expand electric deli very service ... "
"Electric delivery service means (1) transmission of electric power to retail end-use customers,
(2) distribution of electric power to customers for resale or directly to retail end-use customers,
or (3) sale of electric power to retail end use customers ... "
Electric delivery service does not seem to include "generation", but how is such generation
"transmitted"? .
Who is a "retail end use customer"?
"Transmission" to end use customers is considered "distribution" rather than "transmission."
Would distribution facility improvements require a 2/3 vote?
Clear Impacts to Existing Municipally Owned Utilities
Page 4 of 5
Prepared by Northern California Power Agency's General Counsel Mike Dean for presentation to
California Legislative Staff on October 9,2009
Annexation of new territory requires 2/3 vote to serve, even after LAFCO required approval?
(seems a celtainty)
New facilities, especially transmission and distribution, outside the municipal jurisdiction as
'expand electric delivery service' requiring 2/3 vote (arguably)
Legislative Analyst's Office Analysis:
The legislative Analyst's Office reviewed the proposed constitutional amendment (A.G. File No.
09-0015). Fiscal effects of the initiative include: Local Administrative Costs for Elections and
Potential Impact on State and Local Government Costs and Revenues.
"Local Administrative Costs for Elections. Because this measure requires voter approval for
specified local government actions, it would result in additional costs to local governments each
time a proposal requiring voter approval was placed on the ballot. These costs would primarily be
related to preparing and mailing election-related materials. In most cases, the balloting could be
consolidated with already scheduled elections. The increased election-related costs due to this
measure would probably be minor.
Potential Impact on State and Local Government Costs and Revenues. This measure could
affect local government costs and revenues due to its potential effects on the operation of
publicly owned utilities and CCAs. It could also affect the finances of state and local government
agencies in California because of its potential impact on electricity rates. These effects would
largely depend upon future actions of voters and local governments. We discuss these potential
effects in more detail below.
First, the new public voter approval requirements for the start-up or expansion of publicly owned
utilities or the formation of CCAs could, in some cases, result in public disapproval of such
changes. Also, the existence of these new voter approval requirements could deter some local
government agencies from proceeding with such plans. To the extent that this occurred, local
government agencies could collect lower revenues from electricity customers, and incur lower
costs for the operation and coordination of electricity services, than would otherwise be the case.
Second, the enactment of this measure could also affect the finances of state and local
government agencies in California due to its potential impact on electricity rates. As noted above,
some local government agencies might not start up or expand a publicly owned utility into a new
territory or create a CCA as a result of the measure's new voter approval requirements. In this
event, the rates paid by electricity customers in that and neighboring jurisdictions could be
higher or lower than would otherwise have been the case. This could affect state and local
government costs, since many public agencies are themselves large consumers of electricity. To
the extent that changes in electricity rates affect business profits, sales, and taxable income, these
factors could affect state and local tax revenues.
The net fiscal effect of all of these factors on the finances of state and local government agencies
is unknown."
Page 5 of 5
EXCERPT FROM DRAFT UAC MEETING MINUTES
JANUARY 6, 2010
ATTACHMENT E
ITEM 2: ACTION ITEM: The "New Two-Thirds Requirement for Local Public Electricity
Providers" Ballot Initiative
Commissioner Ameri joined the meeting and announced that he was absent during the
discussions for Items 1 and 7 as he recused himself from discussions of those water related issues
since he works for a water agency in the East Bay that receives water from the same supplier as
Palo Alto. He explained that there was no financial conflict of interest, but since there could be a
perception of a conflict, he has chosen to not participate in the discussion.
Senior Resource Planner Debra Lloyd made a presentation on a proposed ballot initiative
sponsored by PG&E and staffs recommendation that the UAC recommend that the Palo Alto
City Council take an oppose position on the initiative. She described the initiative's proposed
changes to current law that would require a two-thirds voter approval before any expansion of
municipal electric service could occur to new annexations. She also described permissible
actions and restrictions on Public Agencies in responding to voter initiatives.
Commissioner Foster indicated his support for staffs recommendation. Commissioner Keller
also indicated her support and asked how the UAC could educate residents. Lloyd stated that we
are permitted to post educational materials (such as Attachment C to the items' report) on the
City'S web site or send them to customers.
Commissioner Eglash asked how this would affect Palo Alto. Lloyd stated that it could be
triggered by the City'S investment in an asset outside of the City such as a transmission line or a
non-renewable power generation project.
Commissioner Berry noted that the measure was a constitutional amendment and was vague.
Even if it didn't directly affect Palo Alto, it could affect facilities that are jointly owned with the
Northern California Power Agency (NCPA) or the Transmission Agency of Northern California
(TANC). He indicated that he supports staffs recommendation.
Commissioner Ameri asked if the UAC could contact other agencies. Fong indicated that some
agencies have already taken official positions.
ACTION: Commissioner Foster made a motion to recommend that the City Council oppose the
"New Two-Thirds Requirement for a Local Public Electricity Providers" ballot initiative and that
the City Council reach out to other entities as it sees fit. Commissioner Keller seconded the
motion. The motion passed unanimously (7-0).
TO: HONORABLE CITY COUNCIL 11
FROM: CITY MANAGER DEPARTMENT: UTILITIES
DATE: FEBRUARY 1, 2010 CMR: 130:10
REPORT TYPE: CONSENT
SUBJECT: APPROVAL OF AMENDMENT NUMBER THREE TO CONTRACT
NO. S09128567 WITH COLUMBIA TELECOMMUNICATIONS
CORPORATION (CTC) TO RETAIN PROFESSIONAL
TELECOMMUNICATIONS ENGINEERING SERVICES IN SUPPORT
OF AN ECONOMIC STIMULUS GRANT APPLICATION FOR THE
BROADBAND PROJECT IN AN AMOUNT NOT TO EXCEED $50,000
DURING CALENDAR YEAR 2010
RECOMMENDATION
Amend a contract (Agreement No. S09128567) with Columbia Telecommunications Corporation
(CTC), in an amount not to exceed $50,000, to provide telecommunications engineering
evaluation and system design services. These services are necessary to assist the City in
preparing a grant application for federal economic stimulus money available under the American
Recovery and Reinvestment Act (ARRA). Under ARRA, the Commerce Department's National
Telecommunications and Information Administration (NTIA) administers the Broadband
Technology Opportunities Program (BTOP), which provides grants for deploying broadband
infrastructure in unserved and underserved areas of the United States. An economic stimulus
grant award under the NTIA's BTOP would support the advancement of the Citywide Ultra
High-Speed Broadband Project.
BACKGROUND
A contract was executed with Columbia Telecommunications Corporation (CTC) on July 28,
2008, to provide telecommunications engineering support for the Ultra High-Speed Broadband
Project, in an amount not to exceed $25,000.
On July 14, 2008, the Council directed staff to enter into a Letter of Intent with a consortium of
firms (Consortium) that would partner with the City to develop the lJltra High-Speed Broadband
Project. CTC was hired to assist staff in the development of the technical aspects of the Letter of
Intent. CTC was selected because of its prior experience in working with the City on the
upgrade of the Comcast cable system. CTC also supported the design and development of an
Institutional Network that connects public schools, public buildings, and community centers in
Palo Alto and the surrounding area. CTC has expertise and experience in designing and
implementing telecommunications networks for a multitude of municipalities across the country.
CMR: 130: 10 Page 1 of3
Broadband Project. On March 30, 2009, the CTC agreement was amended, bringing the total
contract amount to $50,000. The additional scope of services was for "telecommunications
engineering services in support of economic stimulus grant application(s) for the Broadband
Project." Given CTC's experience with the design requirements of the Ultra High-Speed
Broadband Project and the short timeframe allotted to develop the grant proposal, it was
impracticable to solicit proposals for this work scope. The agreement was amended again on
June 1, 2009, bringing the contract total to $85,000, with the same scope of work. There is
approximately $12,000 left under the contract.
DISCUSSION
On July 13, 2009, staff informed the Council that the City was not eligible for first round grant
assistance. The broadband economic stimulus grant program was to have two more funding
rounds after the first round. On November 12, 2009, the NTIA announced that there would be
only one more round of funding, which would begin in early 2010. On January 15, 2010, the
rules and new standards for the second round of funding were announced. The new rules and
standards do not bar the City from submitting an application for grant funding. The grant
application is due by March 15, 2010. To meet the application deadline, additional engineering
support services by CTC will be required. The normal time needed to conduct the competitive
bid process would not allow the City to timely apply for grant assistance. Thus, it is
impracticable to solicit competitive proposals from others under the current circumstances.
The final round grant application document will not be available until February 16, 2010. A
contract amendment in an amount not to exceed $50,000 is requested to obtain professional
services from CTC to support the quick turnaround for the submission of the round two grant
application.
Since time is of the essence, this is a request for an exemption from competitive solicitation,
because it is impracticable to solicit proposals to support the submission of an economic stimulus
grant application(s).
The expected length of the contract is one year.
RESOURCE IMPACT
A mid-year budget request is necessary to transfer $50,000 from the Fiber Optics Fund Rate
Stabilization Reserve. This transaction will reduce the Fiber Optics Fund Rate Stabilization
Reserve from $6,435,147 to $6,385,147.
POLICY IMPLICATIONS
The report is consistent with the Council's policy and program direction provided to staff.
ENVIRONMENTAL REVIEW
The actions requested in this report do not constitute a project for the purposes of the California
Environmental Quality Act. Build-out of the Broadband System is subject to the requirements of
the California Environmental Quality Act due to the installation, construction and maintenance
of facilities in the public rights-of-way. Necessary environmental review will occur when
appropriate.
CMR:130:10 Page 2 of 3
On March 9, 2009, the Consortium withdrew from its participation in the project. The Council
directed staff to pursue federal economic stimulus money to proceed with the Ultra High-Speed
Broadband Project. On March 30, 2009, the CTC agreement was amended, bringing the total
contract amount to $50,000. The additional scope of services was for "telecommunications
engineering services in support of economic stimulus grant application(s) for the Broadband
Project." Given CTC's experience with the design requirements of the Ultra High-Speed
Broadband Project and the short timeframe allotted to develop the grant proposal, it was
impracticable to solicit proposals for this work scope. The agreement was amended again on
June 1, 2009, bringing the contract total to $85,000, with the same scope of work. There is
approximately $12,000 left under the contract.
DISCUSSION
On July 13, 2009, staff informed the Council that the City was not eligible for first round grant
assistance. The broadband economic stimulus grant program was to have two more funding
rounds after the first round. On November 12, 2009, the NTIA announced that there would be
only one more round of funding, which would begin in early 2010. On January 15, 2010, the
rules and new standards for the second round of funding were announced. The new rules and
standards do not bar the City from submitting an application for grant funding. The grant
application is due by March 15, 2010. To meet the application deadline, ad4itional engineering
support services by CTC will be required. The normal time needed to conduct the competitive
bid process would not allow the City to timely apply for grant assistance. Thus, it is
impracticable to solicit competitive proposals from others under the current circumstances.
The final round grant application document will not be available until February 16, 2010. A
contract amendment in an amount not to exceed $50,000 is requested to obtain professional
services from CTC to support the quick turnaround for the submission of the round two grant
application.
Since time is of the essence, this is a request for an exemption from competitive solicitation,
because it is impracticable to solicit proposals to support the submission of an economic stimulus
grant application(s).
The expected length of the contract is one year.
RESOURCE IMPACT
Funds are available in the 2009-2010 Fiber Optics Fund reserves (approximately $7 million).
POLICY IMPLICATIONS
The report is consistent with the Council's policy and program direction provided to staff.
ENVIRONlVIENTAL REVIEW
The actions requested in this report do not constitute a project for the purposes ofthe California
Environmental Quality Act. Build-out ofthe Broadband System is subject to the requirements of
the California Environmental Quality Act due to the installation, construction and maintenance
of facilities in the public rights-of-way. Necessary environmental review will occur when
appropriate.
CMR:130:10 Page 2 on
PREPARED BY:
APPROVED BY:
CITY MANAGER APPROVAL:
CMR:130:10
JIM FLEMING*~
Management SpecialIst
TOMM MARSHALL
Assistant Director, Utilities Engineering
y~t!5zd&4b~
fot' VALERIE FONG
Director, Utilities Department
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CONTRACT
CITY OF PALO ALTO CONTRACT NO. S09128567
AGREEMENT BETWEEN THE CITY OF PALO ALTO AND
COLUMBIA TELECOMMUNICATIONS CORPORATION
FOR PROFESSIONAL SERVICES FOR
ENGINEERING SUPPORT SERVICES FOR THE ULTRA HIGH SPEED BROADBAND
PROJECT
This AGREEMENT is entered into July 28,2008, by and between the CITY OF
PALO ALTO, a charter city and a municipal corpQration of the State ofC,alifornia ("CITY"), and
COLUMBIA TELECOMMUNICATIONS CORPORATION, Maryland based firm, licensed to
do business in the State of California, located at 5562 Heron Point Road, Royal Oak, MD 21662
(PH) 410-745-5958CCONSULTANT1
).
RECITALS
The following recitals are a substantive portion of this Agreement.
A. CITY intends to provide a city-wide open -access fiber to the premise network ("Project")
and desires to engage a consultant to assist the City in negotiating the technical aspects ofthe Letter
of Intent and other applicable Agreements, and to provide other related Engineering Support
Consultant 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 CQNSUL T ANT to provide the
Services as more fully described in Exhibit "A", Scope of Services, 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.
SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the perfonnance of
Services under this Agreement. CONSULT ANT shall complete the Services within the term of this
Agreement and in accordance with the schedule set forth in Exhibit "B", attached'to and made a part
I'
080728
1 Professional Services
Revised 10/18/07
of this Agreement. Any Services for which times for performance are not specitied 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 pre~lude 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
CONSULT,ANT for performance of the Services described in Exhibit "A", including both payment
for professional services and reimbursable expenses, shall not exceed twenty five thousand dollars
($25,000.00). The applicable rates and schedule of payment are set out in Exhibit "C", entitled
"COMPENSATION," 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 "C". CONSULTANT 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 CONSULT ANT's billing rates (set forth in Exhil;>it "C"). If applicable, the
invoice shall also describe the percentage of completion of each task. The information in
CONSULTANT'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 12 below. The City
will generally process and pay invoices within thirty (30) days of receipt.
, I
SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be
performed by CONSULTANT or under CONSULT ANT'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.
SECTION 7. COMPLIANCE WITH LAWS. CONSULTANT shall keep itselfinformed 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
J
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 perfqrmance of the S~rvices.
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080728
2 Professional Services
Revised 10/18/07
SECTION 8. ERRORS/OMISSIONS. CONSULTANT shall correct, at no costto 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 Gost at any submittal exceeds ten percent (10%)
of the 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 perfOlming
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 CONSUL TANT's obligations
hereunder without the prior written consent of the city manager. Consent to' one assignment will not
be deemed to be consent to any subsequent assignment. Any assignment made without the approval
of the city manager 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 city manager or designee.
CONSULT ANT shall be responsible for directing the work of any subconsultants and for any
compensation due to subconsultants. CITY assumes no responsibility whatsoever concerning
compensation. CONSULTANT shall be fully responsible to CITY for all acts and omissions of a
subconsultant. CONSULTANT shall change or add subconsultants only with the prior approval of
the city manager or his designee.
SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Lee Afflerbach,
P .E., as the project director to have supervisory responsibility for the performance, progress, and
execution of the Services and as the project coordinator 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 mmtager. CONSULTANT, at CITY's request, shall promptly
remove personnel who CITY finds 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
3
0807~&
I Professional Services
Revised 10/18/07
the safety of persons or property.
The City's project manager is Melissa Cavallo, Administrative Services Department, 250 Hamilton
Avenue, Palo Alto, CA 94303, Telephone: 650-329-2208. 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 un~er this Agreement shaU 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 City Manager or designee. 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, CONSULTANT'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.
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, i~cluding del!j,th 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 Agreern:tnt, 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,
I'
080728
4 'Professional Services
Revised 10/18/07
ordinance or law.
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".
CONSULT ANT 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 Bes(1) 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 of this 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 l11aterially 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 ofth~s Agreement. .
18.4. The procuring of such required policy or policies of insurance will not be
construed to limit CONSULTANTs 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 city manager may suspend the performance ofthe 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, CONSULT ANT will immediately
discontinue its performance of the Services.
19.2. CONSUL T ANT 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 of a
substantial failure of performance by CITY.
19.3. Upon such suspension or termination, CONSULTANT shall deliver to the
City Manager immediately any and all Qopies of studies, sketches, drawings, computations, and other
data, whether or not completed, prepared by CONSULT ANT or its contractors, if any, or given to
CONSULTANT or its contractors, if any, in connection with V1is Agreement. ,Such materials will
5 Professional Services ,-
Revised 10/18/07
080728
become the property of CITY.
19.4. Upon such suspension or termination by CITY, CONSULTAl"TTwill be paid
for the Services rendered or materials delivered to CITY in accordance with the scope of services on
or before the effective date (i.e., 10 days after giving notice) of suspension 0):' termination; provided,
however, if this Agreement is suspended or terminated on account of a default by CONSULTANT,
CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT's
services whiqh are of direct and immediate benefit to CITY as such determination may be made by
the City Manager acting in the reasonable exercise ofhis/her 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 thi's Agreement.
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 CONSULTANT 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. CONSULTANT further covenants that, in the performance ofthis 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 23. NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section
2.30.510, CONSULTANT certifies that in the performance of this Agre,ement, it shall not
6
080728
Professional Services
Revised 10/18/07
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 relatil).g to Nondiscrimination
Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section
2.30.510 pertaining to nondiscrimination in employment, including completing the form furnished by
CITY and set forth in Exhibit "E."
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 of the
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.
7
080728
Professional Services
Revised 10/18/07
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.
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 COLUMBIA TELECOMMUNICATIONS
Contr
Attachments:
EXHIBIT "A":
EXHIBIT "B":
EXHIBIT "C":
EXHIBIT "C-l";
EXHIBIT "D":
EXHIBIT "E":
080728
CORPO TION
B;: . Doj,uA.9.--!-{tY7/J
tiv\il\,~
Taxpayer Identification No.
SCOPE OF WORK
SCHEDULE OF PERFORMA~CE
COMPENSATION
SCHEDULE OF RATES
INSURANCE REQUIREMENTS
CERTIFICATION OF NONDISCRIMINATION
.,;,
!' 8 I
Professional Services
Revised 10/18/07
080726
EXHIBIT "A"
SCOPE OF SERVICES
TereC:9lr.JIll:1.nkatio~S'ystems Em!:neering
Scope of Services
Assist the City in negotiating the technical aspects of the Letter of Intent and
Agreements (e.g., Dark Fiber License, Facility Use Agreement, Pole Attachment
Agreement, Conduit Occupancy Agreement, and Management Service Agreement)
with the 180 Consortium for a citywide open-access fiber to the premise network
(Network). Aid in the establishment of the Network's technical and performance
requirements and in the development of service level agreements. Assist the City in
developing a plan to secure its vital functions that reside on the Network. Ensure all
costs for preparing the dark fiber backbone for SPE use are included in the
Consortium's construction cost estimates. Help the parties to define responsibility for
maintenance, repair and capital replacement for the City's dark fiber backbone:
,. 9 Professional Services
Revised 10/18/07
EXHIBIT "B"
SCHEDULE OF PERFORtlVIANCE
CONSULTANT shall complete the Services detailed in
Exhibit AT Scope of Services, in a timely manner agreed upon by
both CONSULTANT and the City's Project Manager .
.,;,
080726
10 Professional Services
Revised 10/18/07
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-I.
The compensation to be paid to CONSULTANT under this Agreement for all services
described in Exhibit "A" ("Services") and reimbursable expenses shall not exceed $25,000.00.
CONSULT ANT agrees to complete all Services, including reimbursable expenses, within this
amount. 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 costto 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.
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 forreimbursementoftravel
and meal expeBses for City of Palo Alto employees, and will be subject to pre-approval by the
CITY ..
B. Long distance telephone cellular phone, facsimile transmissio~ 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 $250.00 shall be approved in advance by the CITY's
project manager.
ADDITIONAL SERVICES
080726
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-l. 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.
11 Professional Services
Revised 10/18/07
EXHIBIT "C-1"
HOURLYR~TESCHEDULE
Columbia Telecommunications Corporation
10613 Concord Street. Kensington, MD 20895 • 301-993-1483 ., fax: 301-993-3340 • \,,i'.,y'''''.CTCnet.us
COLUMBIA TELECOMMUNICA TlONS CORPORA TJON
2008 BILLING RATES
Principal Engineer/Analyst $150
Senior Project Engineer/Analyst $140
Senior Engineer/Analyst $130
Staff I?ngineer/ Analyst $1.2 0
Engineer Aide II $ 65
Services to clients are billed on an hourly basis. eTC's billing rates are inclusive 'of all routine
expenses itlc1uding administrative, accounting, and computer support, telephone calls, and
photocopying. Non-routine expenses and long-distance travel are recovered at direct cost with no
mark-up.
Payment is due within thirty (30) days of invoice.
-",
I 12 f
Professional Services
Revised 10/18/07
080726
AMENDMENT NO. 1 TO AGREEMENT NO. S09128567
BETWEEN THE CITY OF PALO ALTO AND
COLUMBIA TELECOMMUNICATIONS CORPORATION
This Amendment No. 1 to Agreement No. S09128567
("Agreement") is entered into March 30, 2009, by and between the
CITY OF PALO ALTO ("CITY"), and . COLUMBIA TELECOMMUNICATIONS
I
CORPORATION, Maryland based rm, licensed to do business in the
State of California, located at 5562 Heron Point Road, Royal Oak,
MD 21662 (PH) 410-745-5958 ("CONSULTANT") .
R E CIT A L S:
WHEREAS, the Agreement was entered into on July 28, 2008,
between the part for the provision of ENGINEEtRING SUPPORT
SERVICES FOR THE ULTRA HIGH SPEED BROADBAND PROJECT; and
I WHEREAS, the parties wish to amend the Agre~ment;
NOW, THEREFORE, in consideration of the covenants, terms,
conditions, and provisions of this Amendment, the parties agree:
SECTION 4. The section entitled "NOT TO EXCEED
COMPENSATION" is hereby amended, to read as follows:
, 0903,3 0 9000050
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
t,
1
Amend.agt
Rev. July 31. 1998
professional services and reimbursable expenses, shall
not exceed fifty thousand dollars ($50, 000. 00) . The
applicable rates and schedule of payment are set out in
Exhibit "C n , entitled "COMPENSATION," which is attached
to and made a part of this Agreement.
EXHIBITS. The, following exhibit (s) to the Agreement
is/are hereby amended' to read as set forth in the attachment(s) to
this Amendment,which are incorporated in full by this reference:
a. Exhibit A-I entitled: Additional Scope
b. Exhibit C entitled: COMPENSATION.
Except as herein modified, all other provisions of the
I
Agreement, including any ~xhibits and subsequent amendments
thereto, shall remain in full force and effect.
J.
2
'090336 9000050
"
Arnend.agt
Rev. July 31,1998
IN WITNESS WHEREOF, the parties have by their duly
authorized representatives executed this Amendment on the date
first above written.
CITY OF PALO ALTO
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
~ .. t{su/.kS
Purchasing Manager
Attachments:
COLUMBIA TELECOMMUNICATIONS
CORPORATION
By: <14~1v'i\P <.5 t1nlJ/)
Name: (~. )O(U1 r)( ,5 -t@l.'\ ~>
Tit 1 e : f:rrs \t:Qe iv.v
By: ----------------------------
Name: --------------------------
Title: -------------------------
EXHIBIT. "A-l":
EXHIBIT "C" Revised:
ADDITIONAL SCOPE
COMPENSATION
3
'090330 9000050 Amend.agt
Rev. July 31, 1998
EXHIBIT "A-l"
ADDITIONAL SCOPE
In addition to the Scope of Services detailed in EXHIBIT.A", SCOPE OF
SERVICE' CONSULTANT will provide:
"Telecommunications engineering services in support of economic stimulus
grant application(s) for the Broadband Project."
"".
!.
090330' 9000050
4
Amend.agt
Rev. july 31,1998
City of Palo Alto
City Manager's Report
TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER
DATE: FEBRUARY 1, 2010
REPORT TYPE: ACTION
DEPARTMENTS: CITY CLERK AND
PLANNING AND COMMUNITY
ENVIRONMENT
CMR: 118:10
SUBJECT: Adoption of an Ordinance Amending Section 21.04.030(a)(30) of the
Subdivision Code (Title 21) of the Municipal Code to Revise the Definition
of "Private Street"
EXECUTIVE SUMMARY
On September 21,2009, the City Council adopted Ordinance No. 5059 to revise the Subdivision
Code (Title 21) of the Municipal Code to define minimum widths for private streets and to exclude
(in both the Subdivision Code and Zoning Code) private street width from site area for the pmpose
of calculating the allowable floor area and density allowed on a site. The ordinance implemented a
proposed initiative that had qualified for the November ballot, according to the certification of the
Santa Clara County Registrar of Voters on July 15; 2009. Staff advised the Council, however, that
the ordinance would have negligible effect unless the definition of "private street" is changed to
reflect current subdivision law and practice. Staff indicated to the Council that a revised definition of
"private street" would be prepared and brought forward to better accomplish the goals of the
initiative for subsequent projects. The draft ordinance before the Council achieves this objective, and
applies to private streets whether they are designated as separate parcels ofland or as easements and
regardless of whether they serve parcels that are platted in fee ownership, condominium" townhome
or other ownership configurations. On December 9, 2009, the Planning and Transportation
Commission recommended adoption of the ordinance.
RECOMMENDATION
Staff recommends that the City Council adopt the proposed ordinance amendment (Attachment A)
revising the definition of "private street."
BACKGROUND
On September 21 , 2009, the City Council adopted Ordinance No.5 05 9 (Attachment B) to revise the
Subdivision Code (Title 21) ofthe Municipal Code to define minimum widths for private streets and
to exclude (in both the Subdivision Code and Zoning Code) private street width from site area for the
pmpose of calculating the allowable floor area and density allowed on a site. The ordinance
CMR: 118:10 Page 10f5
,1.
.. SJ
implemented a proposed initiative that had qualified for the November ballot, according to the
certification of the Santa Clara County Registrar of Voters on July 15,2009. On July 27,2009, the
Council directed staffto bring the ordinance back for adoption rather than setting the measure on the
November ballot.
mtent and Provisions of fuitiative Ordinance
The intent ofthe proposed fuitiative, as stated, was to address concerns about vehicle circulation on
private streets (particularly for fire and garbage trucks), inclusion of streets in determining lot size
and floor area, and overflow traffic and parking onto nearby residential streets. The Arbor Real
project was cited as an example of the kind of development with private streets that has resulted in
such problems.
The specific provisions ofthe mitiative, as reflected in the ordinance adopted in September, amend
the Subdivision Ordinance of the City to:
• Generally limit private street width to a minimum of 32 feet (as compared to a public street
width of 40 feet);
• Allow lesser width at a minimum of26 feet where either a) at least a 6-foot parking strip is
provided adj acent to the street or b) homes are set back at least 20 feet from the street;
• Allow lesser width at a minimum of 22 feet where the street serves 4 or fewer lots;
• Provide that all of those widths are "minimums" and the streets must be shown to be
adequate to the satisfaction of the Director of Planning and Community Environment and, for
widths less than 32 feet, by the City Council; and '
• Exclude the area of private streets from the calculation of Floor Area Ratio for determining
allowable development.
Additionally, the definition of "Lot area" was amended in the Zoning Ordinance to exclude "public
or private" street right-of-way (current code interpretations only exclude public right-of-way). This
would again further limit the floor area allowed on a site.
Finally, the ordinance indicated an effective date ofJuly 31,2009, although the ballot measure would
not have been considered by voters until November 3,2009. There is a provision that notes that, if
the retroactive date is voided or otherwise deemed unenforceable by judicial action, then November
4, 2009 would be the effective date.
Staff did not object to the revisions, and believed that the substance of the ordinance changes was
reasonable and will help clarify the recent concerns regarding private street width, parking, and floor
area. The proposed 32-foot width still provides for flexibility for applicants to use less than the 40-
foot public street width, and allows lesser widths under certain circumstances.
Applicability and Enforceability of Ordinance
m order to avoid the costs of an election the Council was required to adopt the initiative ordinance
exactly as written. It is the opinion of the City Attorney and Planning staff, however, that the
retroactive provision of the ordinance is not legal and that the applicability of the ordinance would be
negligible given the current definition of "private street," which is not changed by the initiative
ordinance. The City Attorney has indicated that although the retroactive provision is unenforceable,
it would not nullify the ordinance if adopted as written because the ordinance contains a severability
clause that would leave all legally enforceable portions of the ordinance intact.
CMR: 118:10 Page 2 of5
Using the City's current defini tion of private streets, the initiative would apply only to non-dedicated
streets which are on a "separate parcel of land used for ingress to or egress from two or more lots
which do not have the minimum street frontage" or non-dedicated streets that provide access to one
lot that does not meet minimum street frontage "if the parcel of land used for ingress or egress is
more than two hundred feet in length." Because this definition predates enactment of the Davis-
Stirling Common Interest Development Act (State statute), it is unlikely that any future development
will propose vehicular access in a way that would meet the City's definition of private streets. As
such, absent further clean-up, the initiative would not have any direct impact on any project currently
in the planning or development process and would not likely affect projects in the future in the way
intended by the initiative supporters.
The ordinance will have no impact upon the Alma Plaza development as the tentative map was
already passed by the Council long before the initiative. Due to the improper definition it is the City
Attorney's opinion that the ordinance will have no impact upon any current application including the
proposed Palo Alto Bowl project.
Staff indicated to the Council, however, that a revised definition of "private street" would be
prepared and brought forward to better accomplish the goals ofthe initiative for subsequent projects.
The draft ordinance before the Council achieves this objective.
DISCUSSION
Staff has met with the Initiative sponsor and believes that a few revisions to the City'S subdivision
ordinance, specifically to the definition of "private street," would allow for effective implementation
ofthe intent of the Initiative. The key changes proposed in the ordinance include:
• Deletion of the reference to "required minimum lot frontage" in the definition of "Private
Street."
• Clarification that a "Private Street" could also be an easement or other right-of-way, and is
not necessarily designated as a separate parcel of land.
• Clarification that a "Private Street" provides access to "parcels" of land rather than "lots"
and explicit indication that the term "parcel" includes fee ownership, condominium,
townhome or other ownership configurations.
Staff has recommended (Section 5) that the ordinance "shall not be applicable to any subdivision for
which a tentative map has been ~ubmitted prior to November 3, 2009." This is not the original intent
of the initiative, but staff, including the City Attorney, believes that State law precludes applying new
regulations to subdivision maps submitted prior to the consideration of the new regulations.
PLANNING AND TRANSPORTATION COMMISSION RECOMMENDATION
On December 9, 2009, the Planning and Transportation Commission (PTC) voted 6-0
(Commissioner Feinberg absent) to recommend that the City Council approve the proposed
ordinance amendments. A few minor corrections were noted. The Commission's minutes from that
meeting are attached. The PTC staff report is not attached since it is virtually identical to this City
Manager's Report.
POLICY IMPLICATIONS
Comprehensive Plan policies and programs that support the revisions ofthe initiative ordinance and
CMR: 118:10 Page 3 of5
this clean-up of the definition of "private street" include:
• Policy L17: Treat residential streets as both public ways and neighborhood amenities.
Provide continuous sidewalks, healthy street trees, benches, and other amenities that favor
pedestrians.
• Policy T23: Encourage pedestrian-friendly design features such as sidewalks, street trees,
on-street parking, public spaces, gardens, outdoor furniture, art, and interesting
architectural details.
• Policy T25: When constructing or modifying roadways, plan for usage of the roadway space
by all users, including motor vehicles, transit vehicles, bicyclists, and pedestrians.
• Program T33: Develop comprehensive roadway design standards and criteria for all types of
roads. Emphasize bicycle and pedestrian safety and usability in these standards.
• Program T53: Discourage parking facilities that would intrude into adjacent residential
neighborhoods.
• Policy C30: Facilitate access to parks and community facilities by a variety of transportation
modes.
Staff does not believe that the prior street width allowances necessarily conflicted with those policies
and programs, but concurs that those policies and programs are further supported by the proposed
standards and this clean-up of the definition.
ENVIRONMENTAL REVIEW
No environmental review is required pursuant to Categorical Exemption Section 15303 (Minor
Changes to Land Use Limitations) ofthe California Environmental Quality Act (CEQA) Guidelines.
RESOURCE IMPACT
The proposed amendment will make the prior initiative ordinance more effective, and is likely to
constrain to some degree the intensity of development on occasional development sites in the future,
where private streets are proposed. The ongoing costs of private street maintenance are anticipated to
be negligible, since the costs of such maintenance will be borne by project developers and
subsequent owners and homeowners' associations.
DEPARTMENT HEAD REVIEW:
CURTIS WILLIAMS
Director of Planning and Community Environment
CITY MANAGER APPROVAL:
CMR: 118:10 Page 4 of5
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
COURTESY COPIES
Robert Moss
CMR: 118:10
Proposed Ordinance Amending Subdivision Code (Title 21)
Ordinance No. 5059, Adopted September 21,2009
December 9,2009 PTC Excerpt Minutes
Page 5 of5
NOT YET APPROVED ATTACHMENT A
Ordinance No.
Ordinance of the Council of the City of Palo Alto Amending
Section 21.04.030(a)(30) of Title 21 (Subdivisions) of the Palo
Alto Municipal Code to Amend the Definition of "Private
Street"
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. The City Council finds as follows:
A. On July 15, 2009, an initiative petition defining the minimum width of private
streets and excluding private streets from the calculation of floor area was certified by the Santa
Clara County Registrar of Voters as qualified to be submitted to voters on the November 2009
ballot.
B. On July 27, 2009, the City Council directed that the City should adopt the
ordinance amendments proposed in the initiative petition rather than placing the initiative on the
November 2009 election ballot.
C. On September 21,2009, the City Council adopted Ordinance No. 5059, reflecting
the amendments as proposed in the initiative petition, and directed that the definition of "private
street" be amended to reflect current circumstances.
D. On December 9, 2009, the Planning and Transportation Commission conducted a
duly noticed public hearing regarding this amendment and recommended approval to the City
CounciL
E. The Councjl finds that the ordinance amendment furthers the public interest,
health and welfare of the community and is consistel,1t with the Comprehensive Plan.
SECTION 2. The City Council hereby amends Section 21.04.030(a)(30) to read as
follows:
"(30) "Private street" means any parcel of land right of way, including vehicular access
easements, not dedicated as a public street which is used for ingress and egress vehicular traffic
a) to or from two or more lots parcels which do not have the required minimum frontage on a
public street, or hl to or from one lot parcel which does not have the required minimum frontage
on a public street if the parcel of land right of way or easement used for ingress or egress is more
than two hundred feet in length. For the purpose of this section, "parcel" includes fee ownership,
condominium, townhome or other ownership configurations. Private streets shall be excluded
for the purpose of determining Floor Area Ratio (FAR). Minimum width of "private streets"
shall be as defined in 21.20.240(b)(4). For the purpose of the provisions of Section
21.20.240(b)(4), the term "lot" includes fee ownership, condominium, townhome or other
ownership configurations."
1
100111 syn 0120422
NOT YET APPROVED
SECTION 3. The Council hereby finds that this amendment is categorically exempt
from environmental review under Class 5 of the CEQA Guidelines as it comprises a minor
alteration to land use limitations and can be seen to have no significant environmental impacts.
SECTION 4. The provisions of this ordinance amendment shall not be applicable to
any subdivision for which a tentative map has been submitted prior to November 4, 2009.
SECTION 5. This ordinance shall be effective upon the thirty-first (31 st) day after its
passage and adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
100111 syn 0120422
2
APPROVED:
Mayor
City Manager
Director of Planning and
Community Environment
ATTACHMENT B
~f. ....
Ordinance No. 5059
Ordinance of the Council of the City of Palo Alto Amending
Title 21 (Subdivisions) and Title 18 (Zoning) of the Palo Alto
Municipal Code to Defme Minimum Widths for Private
Streets and Excluding Private Streets from the Calculation of
Floor Area
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. The City Council finds as follows:
A. On July 15, 2009, an initiative petition defining the minimum width of private
streets and excluding private streets from the calculation of floor area was certified by the Santa
Clara County Registrar of Voters as qualified to be submitted to voters on the November 2009
ballot.
B. On July 27, 2009, the City Council directed that the City should adopt the
ordinance amendments proposed in the initiative petition rather than placing the initiative on the
November 2009 election ballot.
C. The Council finds that the ordinance amendments further the public interest,
health and welfare of the community and are consistent with the Comprehensive Plan.
SECTION 3. The City Council hereby amends Section l8.04.030(a)(85) to read as
follows:
(85) "Lot area" means the area of a lot measured horizontally between bounding
lot lines, but excluding any portion of a flag lot providing access to a street and
lying between a front lot line and the street, and excluding any portion of a lot
within the lines of any natural watercourse, river, stream, creek, waterway,
channel, or flood control or drainage easement and excluding any portion of a lot
within a public or private street right-of-way whether acquired in fee, easement,
or otherwise.
SECTION 4. The City Council hereby amends Section 21.04.030(a)(30) to read as
follows:
(30) "Private street" means any parcel of land not dedicated as a public street
which is used for ingress and egress from two or more lots which do not have the
required minimum frontage on a public street, or to or from one lot which does
not have the required minimum frontage on a public street if the parcel of land
used for ingress or egress is more than two hundred feet in length. Private streets
shall be excluded for the purpose of determining Floor Area Ratio (FAR).
Minimum width of "private streets" shall be as defined in 21.20.240(b)(4).
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SECTION 5. The City Council hereby amends Section 21.20.240(b)(4) to read as
follows:
(4) Private streets: Such right-of-way as would be required for a comparable
public.street, except as specified below. Streets serving five or more lots shall be
no less than thirty two feet wide. Streets serving four or fewer lots shall be no less
than twenty two feet wide providing that the Director of Planning and Community
Environment and the City Council specifically approves the twenty two foot street
width. .
(a) If a building ,adjacent to a private street has a setback of at least 20 feet
between the street and b'!lilding allowing on-site parking, then the width
of the private street may be no less than twenty six feet at the discretion
of the Director of Planning and Community Environment and the City
Council.
(b) If a private street has a public parking strip of at least six feet in width
between the street and the building location, then the width of the private
street may be no less than twenty six feet at the discretion of the Director
of Planning and Community Environment and the City Council.
Effective Date: This private street width requirement applies to any project or
development that has not obtaifl,ed a fmal map, building permit, and performed
significant construction as of July 31, 2009. If the effective date of July 31, 2009
is held by a. court of competent jurisdiction in a final judicial action to be void,
voidable, or unenforceable, then the effective date of this ordinance as it applies
to private street width shall be November 4, 2009.
SECTION 6. Severability. If any section of this initiative ordinance, or part hereof,
is held by a court of competent jurisdiction in a final judicial action to be void, voidable, or
unenforceable, such section or part hereof, shall be deemed severable from the remaining
sections of this initiative ordinance and shall in no way affect the validity of the remaining
sections hereof.
SECTION 7. The Council hereby finds that this rezoning is subject to environmental
review under the provisions of the California Environmental Quality Act (CEQA). An
environmental assessment was prepared for the project and it has been determined that no
potentially adverse impacts would result from the rezoning of the property; therefore, the project
would have no significant impact on the environment.
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SECTION 8. This ordinance shall be effective upon the thirty-first (31 st) day after its
passage and adoption.
INtRODUCED:. SEPTEMBER 21, 2009
PASSED: OCTOBER 5, 2009
AYES: BURT, DREKMEIER, ESPINOSA, KlSHIMOTO, KLEIN, MORTON,
SCHMID, YEH
NOES: BARTON
ABSTENTIONS:
ABSENT:
ATfEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
091106 syn 0120405
3
APPROVED:
Mayor
City Manager
Director of Planning and
Community Environment
ATTACHMENT C
1 Planning and Transportation Commission
2 Verbatim Minutes
3 December 9, 2009
4
5 EXCERPT
6
7 Private Streets Ordinance: An Ordinance Amending the Subdivision Code (Title 21) of the
8 Municipal Code to Revise the Definition of "Private Street"; California Environmental Quality
9 Act (CEQA) Review: Categorically Exempt.
10
11 Mr. Curtis Williams, Planning Director: Yes, thank you Chair Garber and Commissioners. I am
12 Cutis Williams, Director of Planning. This item comes to you following the Council's adoption
13 in September of an ordinance that effectuated the provisions of an Initiative Petition that has
14 been developed and circulated and qualified for the ballot to regulate the width of private streets.
15 That ordinance that was adopted by the Council is attached. Also, we did send to you, and I think
16 you had at places, the actual initiative language, which is mirrored in the ordinance. There is
17 some advantage to that initiative language in that it actually shows it in a redline form so you can
18 see what the changes were that were made.
19
20 In any event, that ordinance essentially established minimum width for private streets, which we
21 as you know currently or previously did not have. However, in looking at the initiative language
22 it was apparent to the City Attorney and Planning Staff that it would not be applicable to
23 virtually anything that we have right now for two or three different reasons.
24
25 They all surround the definition of the term 'private streets' that is in our code right now.
26 So the main concerns were first of all that there was a requirement in the current code that a
27 private street be a separate parcel of land used for ingress or egress from two or more lots, which
28 do not have the minimum street frontage. We don't have minimum street frontage to start with so
29 there is not really a basis for making that kind of determination. The word 'lots' is difficult
30 because in subdivision law that doesn't apply to condominium lots which are generally termed
31 'parcels' and I think Don can explain that in more detail if you need. So it really only applied to
32 platted fee simple type of lots. Then also because it says 'separate parcel of land' that didn't
33 really apply to easements, which are sometime the form that we see private streets. So for several
34 reasons the ordinance did not appear to be applicable to subdivisions we would see as it was
35 intended to be. So we told the Council that we would follow up with an ordinance that revised
36 the definition of private street to address those issues, and make it applicable to future
37 subdivisions that come in as it was intended.
38
39 So we have deleted the reference to required minimum frontage in this proposed definition. We
40 have clarified that a private street could be an easement or other right-of-way and not necessarily
41 a separate parcel of land. Then we have also clarified that the private street provides access to
42 parcels ofland rather than lots, and we have explicitly indicated that the term parcel includes fee
43 ownership, condominium, townhome, or other ownership configuration. So we have tried to be
44 more inclusive there and capture the types ofprojects that you have been seeing in the last few
45 years that more often than not the lots are platted as condominium lots even though they may
46 look very much like a single-family home subdivision.
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1 So we recommend that you recommend to the City Council that this ordinance be adopted and
2 that helps then clean up the definition in a way that makes the amendments that were adopted
3 September 21 meaningful.
4
5 I did want to point out one error in the ordinance itself. On the third line of the definition of
6 private streets it says, under A, to or from two or more, it should say parcels there where lots is
7 stricken, which do not have the required minimum frontage on a public street. Actually, that
8 'minimum frontage' shouldn't be there. So the word 'parcels' should be in there rather than lots.
9 I didn't notice that before but where it says, 'do not have the minimum required frontage' should
lObe the same as the line before that which should just say, which do not have frontage on a public
11 street. So if you would just strike the 'required minimum' just as it is in the fourth line down
12 from that. We don't want to refer to a 'required minimum' because we don't have one.
13
14 The other thing I wanted to mention is that it is Staffs opinion and there may be differing
15 interpretations of this out there but that this ordinance would not apply to either Alma Plaza or
16 Palo Alto Bowl because state subdivision law essentially says that you are subject to the
17 subdivision regulations that are in effect at the time that you submit your map. In this case Alma
18 Plaza's map is not only submitted but finaled. The Palo Alto Bowl map is still in process but was
19 submitted July 9, 2009. I will be glad to answer any questions.
20
21 Chair Garber: Commissioners, we have one speaker from the public shall we have that member
22 speak and then we will go to our questions and comments? Let's open the public hearing. We
23 have one card from Robert Moss. Let's give him five minutes.
24
25 Mr. Robert Moss, Palo Alto: Thank you Chairman Garber and Commissioners. I urge you to
26 correct the definition of private streets, which have been corrected yet again tonight. I want to
27 give you a little bit of background.
28
29 When I wrote this initiative it wasn't done in a vacuum. I interchanged comments with Curtis on
30 a number of occasions to try and make sure that it was written so that it wouldn't create major
31 problems and give them huge amounts of heartburn. One of the changes that I made at his
32 suggestion, if you look at the definition of street width in the existing code it is defined by the
33 length of the street. The longer the street the wider it has to be, longer streets 60 feet wide and so
34 on. So my original definition of a private street was based on the street length and I believe I had
35 100 feet. So anything that was longer than 100 feet had to have the 32-foot wide width. I also
36 had a suggestion that we impose the restriction if there were six or more lots. Curtis suggested
37 we just talk about lots and get rid of the street length and reduce it to four. So that is why lots
38 were put in instead of street length. I think if I had left street length in we would have had a little
39 bit less of a problem with the definition.
40
41 The second is the definition of private streets is what it has been for decades. When I looked at it
42 I did have any reason to think there problems. Since Curtis and let's just say the legal department
43 without naming names had looked at what I was proposing I had assumed that the definition was
44 valid. It was not until the Registrar of Voters certified that the petitions were valid and they went
45 back and looked at the entire packet again that they realized, oops the definition is wrong. So we
46 were defining requirements on a private street that really couldn't be called a private street. So
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1 when it came to the Council the Staff said they would make that correction and we will redefine
2 it. That is what you have before you tonight.
3
4 As to whether or not this applies to Alma Plaza and Palo Alto Bowl in the case of Palo Alto
5 Bowl the private street, Ryan Street, is 24-feet wide but it has parking along the side. So it meets
6 the intent of this initiative. The initiative actually says you would have to have 26 feet if you
7 have parking along the side. I thought about whether it was worth making a fuss for two feet and
8 I decided no, the garbage trucks can still get through. You are not going to have overflow
9 parking because they have parking in the area. So it meets the intent of the initiative.
10 As for Alma Plaza, I am quite confident that Mr. McNellis will have no luck whatsoever in
11 finding anybody else to come in and work with him. Say a developer for the housing and he says
12 you know we are fighting a lawsuit from the previous housing developer for not performing
13 properly. I am fairly confident that the project which was approved is not ever going to come
14 back to be built. They will make some changes. However, ifhe does try to build what has been
15 approved my understanding of the law is that an initiative by the people governs. The language
16 that I used was the legal definition for what you have a vested right in developing a project. So if
17 by some happenstance and McNellis does come in and try build what he has we will find out
18 how the courts interpret my opinion versus the City Attorney's opinion.
19
20 Chair Garber: Thank you. Commissioners, questions, comments? Commissioner Keller. ,
21
22 Commissioner Keller: A question for Mr. Moss. The private streets as is written refers to lots.
23
24 Mr. Moss: Right.
25
26 Commissioner Keller: It is interesting how the definition of private streets is being modified to
27 refer to parcels. Do you have any comments about what the interaction of those are and whether
28 it makes sense? I realize an initiative of the public can't be amended by the Council. It can only
29 be amended by the public but about the problem of when you have a condominium development
30 there not necessarily four separate lots, or five separate lots, or five or more lots as in the
31 definition of private streets.
32
33 Mr. Moss: Well, when I put in lots in the first place my interpretation was that a condominium or
34 townhouse was a lot because you have a defmed area or volume. It wasn't until after I was
35 informed by Staffthat that definition was not complete that we had this issue. Now they have
36 come back and said parcel, and they have defmed it as condominiums and so on. So they have
37 been more explicit in the defmition.
38 If you look at the definition of 'lot' in the City Ordinance to me it looked like it meant condos
39 but I am not a lawyer. So if this definition does what it is supposed to and includes townhouses,
40 condominiums, single-family homes, and commercial property that is the intent. That is what is
41 supposed to be done.
42
43 Commissioner Keller: I realize that but the definition of private streets has to do with the street
44 width depending on how many lots there are adjacent. Even though the definition of a private
45 street refers to parcels the definition of this issue of right-of-way in definition four doesn't refer
46 to or make specific mention to lots.
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1 Mr. Moss: That is correct. Maybe I was being a little bit optimistic but I had expected when the
2 City Attorney's Office wrote the definition that lots would be something that you could enforce
3 in terms of four lots or more is where you have the private streets apply. Now ifthere is any
4 possible uncertainty that should be clarified with the definition. I am going to have to defer to
5 Staff on that one. We have gone back and forth on this and that was the intent of what they
6 wrote.
7
8 Commissioner Keller: So let me ask a question of the attorney then. Is it possible to add a
9 definition to the number four private streets, a section on there defining lots in the same manner
10 is in section 21.20.240(b) (4), a paragraph (c) where lots is defined the same way parcels are
11 defined in the definition?
12
13 Chair Garber: Could you give us a page number as well please?
14
15 Commissioner Keller: The definition oflots I am talking about is in Attachment B.
16
17 Chair Garber: At the bottom ofthe page there or the second page?
18
19 Commissioner Keller: Yes, it is the second page. I am talking about putting it as a paragraph (c)
20 indicating defining what lots is there. In the ordinance we have defined exactly what a parcel is
21 and using that definition for a parcel to refer to a lot. Alternatively maybe what you want to do is
22 define lots for the purposes of21.20.240(b) (4) to refer to buildings. Maybe that is appropriate.
23 Maybe one or the other maybe you want to refer to it as buildings or in some sense define the
24 word lots to be what we intended it to be. I am wondering if it is legal to add that definition to
25 this. I am assuming that the people who circulated the petition would be happy with that change
26 but I am not sure about the legality of doing that.
27
28 Mr. Donald Larkin, Assistant City Attorney: It is legal to add that definition. I would recommend
29 against doing it generally because the term 'lots' has a specific legal definition in the Subdivision
30 Map Act. What we could do is do something narrowly say for purposes ofthat particular
31 subsection that defines private street widths, and have a broader definition for the term 'lots.'
32
33 Commissioner Keller: Yes, in other words only for that paragraph four saying in this particular
34 section lots is interpreted to mean however we define parcels in the other definition.
35
36 Mr. Larkin: I think we could do that.
37
38 Commissioner Keller: So let me go back to Mr. Moss. Do you feel comfortable with that
39 improvement?
40
41 Mr. Moss: Yes, I think that will work. The other possibility would be to have a second section of
42 the code modified to define lots to make clear the lot includes condominium air space or any
43 other legally defined living area. That is what I thought it did but apparently it doesn't.
44
45 Mr. Larkin: I would recommend against doing it that second way only because 'lot' and 'parcel'
46 are two different terms. They are not interchangeable. I think the intent is clear in here was to say
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1 parcels. So I think we can make that clarification for purposes of that paragraph but for the
2 remainder of the subdivision code we should not be using those terms interchangeably.
3 Mr. Moss: If 'parcels' and 'lots' are made interchangeable then the section in the initiative that
4 refers to lots would be carried over correctly. That is the intent.
5
6 Commissioner Keller: Okay. Well, let me suggest that when whoever makes the motion basically
7 adds an additional paragraph, subparagraph (c) to 21.20.240 (b) (4) which defines lot to be the
8 same way that parcel is defined in Attachment A under definition 30. Does that make sense?
9
10 Mr. Williams: I don't know if this is what you are getting at but I would just suggest that at the
11 end of this paragraph on private street it says, minimum width of private street shall be defined in
12 21.20.240 (b) (4) that we add a sentence that for the purpose of the provisions of section
13 21.20.240 (b) (4) the term 'lot' includes fee ownership, condominium, townhome or other
14 ownership configurations.
15
16 Commissioner Keller: That is fine with me too. I think that would affect the intent of the petition
17 and would complete the effect we are trying to accomplish.
18
19 Mr. Williams: I think it avoids getting into any ofthe language around the actual section on the
20 widths, which might be construed as messing with the initiative language. I am not sure you were
21 suggesting this either.
22
23 Commissioner Keller: No, I was not intending that. Thank: you.
24
25 Chair Garber: Nice catch. Commissioner Holman.
26
27 Commissioner Holman: I had asked a question earlier about the 200-foot length and if that would
28 be compatible with our preservation subdivision ordinance in allowing those subdivisions if there
29 was any conflict foreseen?
30
31 Mr. Larkin: With the situations that we looked at when we were considering changes to the
32 ordinance so that we wouldn't necessarily have to use a PC to achieve those same goals we
33 didn't come across any examples where this defmition of private streets would impact those
34 projects. It is not inconceivable that there could be something in the Open Space area for
35 example where there would be a long enough driveway into the second lot that would meet the
36 definition of a private street if those are parcelized. I don't know of any language that would be
37 able to correct that situation that wouldn't alter the initiative as proposed. I am certainly open to
38 suggestions if other people have ideas. I think that it would be the narrower of the possible
39 definitions but if we have two lots that are parcelized and the same driveway is providing access
40 to both of those lots or parcels then it would meet this definition of a private street.
41
42 Commissioner Holman: Obviously what I am trying to avoid here is having conflicting
43 ordinances. I was thinking that one of the responses had been that we might extend the 200 to
44 225. That is not the language that is in the initiative.
45
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1 Mr. Larkin: That is the struggle. I know you have raised this issue before and that is the struggle
2 we are having. The only way to alter that 200 feet is to go back to a vote of the citizens. So the
3 one area where we could make the change would be in the definition to somehow remove that
4 situation from the definition. I think if we do that we are creating more -there will be
5 unintended consequences where we will be taking things that I think were intended to be
6 considered private streets and not considering them to be private streets. If that is the
7 recommendation or the priority of the Commission and the Council is to make those projects,
8 that situation and find an exemption for that then that is what we will do, but we will need to do
9 it through the definition.
10
11 Commissioner Holman: Thank you for that. Actually, could you give an example of an
12 unintended consequence might be?
13
14 Mr. Larkin: Well, I think the intension is that if somebody has a 200-foot road that is going to
15 serve two lots or parcels that that road would be a private street and would have to meet the
16 private street definitions. If you read the stated purpose of the initiative it is so that garbage
17 trucks and fire trucks and that sort of equipment can get down that road. They are asking for that
18 width. Curtis pointed out that the length is in a couple of places and we actually inserted it into
19 the definition so we can change it within the definition on the 200-foot length.
20
21 Mr. Williams: The initiative didn't change the definition of200 foot in length. That has been in
22 there already and it doesn't conflict with anything. Elsewhere the provisions of the street width
23 generally talk about the number of parcels or lots not the length of the street. So I think we
24 probably could change that. I just don't know what is magic about 225 feet as opposed to 200
25 feet. Like Don said all the ones we looked at in terms of trying to identify some before when that
26 other ordinance was coming around nothing was over 200 feet. So it doesn't seem to us that it is
27 likely to but there may be something out there, but we don't know that 225 feet is going to solve
28 it either. So we would have to almost craft a very special exception for something we don't even
29 know exists. Don't even know if it is worth doing that or not.
30
31 Commissioner Holman: That's okay, the number 225 had come up in the meeting, and I am just
32 trying to be proactive rather than having to come back later. We did also talk about the fact that a
33 lot of those driveways are going to be ten or 12 feet wide. So okay.
34 Then just for clarification the ordinance in front of us has its own timelines but it is only
35 amending the definition of private street. Everything that is in the ordinance that was passed
36 previously, all ofthat language, still holds including the effective date because that was in the
37 language.
38
39 Mr. Williams: That is correct.
40
41 Commissioner Holman: Just clarifying that. Those are my only two questions.
42
43 Chair Garber: Thank you. Commissioner Fineberg and then Lippert.
44
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1 Commissioner Fineberg: Questions for Staff. Is there an industry standard definition of private
2 street? What does the state say? If one looked at a city planner's manual for the legal code is
3 there something that is standard? We are trying to wordsmith it.
4
5 Mr. Larkin: I looked a number of different local municipal zoning codes and the definition is
6 more frequently I would say a circular definition that a private street is a street that is not owned
7 by the city. There are some that have definitions that are more complicated than what we are
8 proposing, some that are way too simple, but there is no standard definition. The Map Act does
9 not have a specific definition of a private street. If it did that is probably what we would use.
10
11 Commissioner Fineberg: Okay. It just seems to me that by having detailed specifics about what a
12 private street is that there will be other loopholes that can't be anticipated. If there was
13 something that was sort of a generic if cars drive on it, it gets you to places, and it isn't public •
14 then it is private but in more generic terms it would be the catchall that we are aiming for.
15 Mr. Larkin: The difficulty and the reason that we put as much into this as we did is our goal was
16 to affect the intent of the initiative and a lot of the definitions that other cities use would not
17 capture the types ofprojects that I think the people circulating the initiative wanted to capture.
18 Many of them talk about thoroughfare, they use terms that really only apply to busy streets. It
19 was clear from the statement of purpose in the initiative that they weren't talking about the kinds
20 of things that this initiative --in particular under many of the definitions for example the Arbor
21 Real project wouldn't meet some of their definitions of private streets. That is stated right up
22 front in the initiative is the type of project that this initiative was intended to preclude from
23 happening again.
24
25 Commissioner Fineberg: Okay. For the most common kinds ofprojects that we can anticipate
26 that will come forward does this definition of parcel cover projects like a.mixed-use project
27 where there is a grocery store whether it is fee simple or condo? Would the projects that are in
28 the pipeline, disregarding date, but just thinking about the character of the projects, would the
29 projects that are in the pipeline or that we know are coming soon, would those be covered
30 adequately by this definition?
31
32 Mr. Larkin: It is probably easier to give an example ofprojects that are not covered. It would be
33 apartment buildings that are under single ownership. If there is an office complex that is not a
34 mixed use that is under single ownership those are driveways those are not streets. Anything that
35 is multifamily for sale. A parcel is a parcel of record that you pay property tax on. So if you own
36 your condo unit or your air space unit that is a parcel. Oversimplifying it but generally when you
37 are talking about a lot you are talking about a piece of earth and when you are talking about a
38 parcel you are talking about something you own. So parcel actually does cover far more lots and
39 that is why we chose to use the word 'parcel.'
40
41 Mr. Williams: In could add, the specific example you gave oflike College Terrace Center,
42 which with the grocery store and the office and all that would not be covered by this it is one
43 site, one lot. So we have driveway standards that dictate what the width is when you have that
44 kind of situation. If the eight residential units for instance were not rental and they were condo
45 then it still depends on how the subdivision is done. If they were just laid out as that and then the
46 street was not either an easc;;ment or a separate parcel then it wouldn't apply. So really you are
Page 7
1 trying to distinguish between driveways where parking is provided elsewhere and private streets
2 where we are looking at is parking provided along it and that helps dictate the width and that
3 kind of situation. So it clearly applies to or would have to Arbor Real, True Mark, Vantage, and
4 Echelon projects, the Summerhill Homes project at the Elk's, the Palo Alto Bowl would because
5 that Ryan Lane a street and that is a mixed use project but it has a separate parcel for that lane
6 that serves clearly two or more parcels.
7
8 Commissioner Fineberg: Okay, so if I understand it correctly then if there is one parcel, one
9 common ownership, even if it is 100 rental units it would be a driveway and not a private street.
10 So I am looking at Attachment A that paragraph at the bottom, Section 30, a) is the sentence, the
11 third line where we corrected 'lots' to 'parcels,' and then b) which is the second possible
12 scenario it is to or from one parcel which does not have the frontage. So how would you have a
13 private street to one parcel?
14
15 Mr. Williams: You would have a parcel up front on the street and then one behind it and you
16 would either have a platted lot for the street coming in to serve that parcel behind or as
17 Commissioner Holman if even for two single family homes on a long flag or if it were an
18 easement or a separate kind of parcel, if it were more than 200 feet long then that would be the
19 case. So you are essentially serving using that street to gain access to a parcel that is behind the
20 one that is right up on the street. So that would cover if it was a very long.
21
22 Commissioner Fineberg: I am sorry I am stuck. If it the definition though is that there is one
23 ownership it is a driveway not a street. How would it be a street?
24
25 . Mr. Williams: Right, you are right it wouldn't be a street if it is all one ownership. I am saying if
26 the second ownership is back behind the first parcel that is up on a street so that it doesn't have
27· direct access onto the street but then it has an easement through the front or access easement or it
28 is actually a separate parcel that maybe they share maintenance on or something like that that
29 would be considered a private street.
30
31 Commissioner Fineberg: Thank you. Okay. My last question on the Staff Report page 3 just
32 above the section where it talks about policy implication Staffis recommending that the
33 ordinance Section 5 specifically state that the ordinance should not be applicable to any
34 subdivision for which the Tentative Map has been submitted prior to November 4, 2009. Is there
35 an advantage or a reason to have that specific language stated versus if that is what our attorney's
36 think the state says, state law is there, why categorically state it, rather than just let it be tested in
37 court?
38
39 Mr. Larkin: The reason to categorically state it instead of having it be tested in court is testing in
40 court is expensive. We would prefer to put it right up front. We believe that is consistent with
41 state law. I know Mr. Moss has mentioned the vested rights doctrine. Vest right doctrine applies
42 to the Zoning Ordinance and many other development standards but in the Subdivision Map Act
43 a developer is constrained only by the rules that are in place at the time that their map is
44 complete. So that is our position on what state law is. I think it is abundantly clear and well
45 tested but rather than waste time a frivolous lawsuit it is better just to put it right up front in the
46 ordinance.
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1 Mr. Williams: If I could add this says November 4 so there is an argument that any project that
2 came in since November 4 until this is adopted by the Council also wouldn't be subject to this.
3 Originally when we started doing this had anticipated hopefully being to Council by October,
4 which is sort of why We put the November 4 to coincide with the election date and the initiative
5 date and all that. We are comfortable leaving this in because I think that was sort of the intent
6 and certainly if anybody came in at this point in time we would be telling them this is going to
7 apply to you. So rather than leaving it blank and just filling in the date it gets adopted I think we
8 are comfortable with doing this. By the way, we have not had anyone since November 4 come in
9 with a subdivision map.
10
11 Commissioner Fineberg: One follow up on that please if! could. Ifthere were to be a lawsuit I
12 am assuming it would be a private party suing the developer for enforcement of the ordinance. I
13 am seeing a head nod no. How would the City be involved if that were an issue?
14
15 Mr. Larkin: It would be a writ of mandate against the City. The developer would be the real party
16 in interest. The City would be the defendant in that lawsuit.
17
18 Commissioner Fineberg: Thank you.
19 Chair Garber: Thank you. Commissioner Lippert and then Commissioner Holman did you have
20 something?
21
22 Commissioner Lippert: I want to go back to Section 4 on page 1. I guess it is point 30. "Private
23 Street" means any parcel ofland not dedicated to a public street, which is used for ingress and
24 egress by two or more lots, which do not have the required minimum frontage on a public street,
25 etc. One ofthe advantages of being an architect is that I get to work with a variety of sites and
26 problems. I happen to have had a proj ect, which would have fit into that definition and would
27 have had to comply with the rules of a private street. The site is such that there would be
28 constraints that it just wouldn't work. It would negate my entire site. I will elaborate a little bit
29 more. This is in the Barron Park section of Palo Alto. As you know the lots there are a little bit
30 funky. It happens to be on a comer but it is the kind of comer that sort of rounds. It is a curved
31 radius comer. Due to that the site only has maybe a frontage of 34 feet. So in order to solve that
32 problem many years ago when they did the subdivision they actually put an ingress/egress
33 easement on the adjacent neighbor's property. So what you have is I think it is eight feet on the
34 neighbor's property and you have two feet on the target property on a wedge shaped lot. What is
35 even more horrendous is that this lot goes back and it is 200 feet long. So you wind up with a
36 very long, harrow croissant shaped lot. A point of fact is what you would wind up with if you
37 were to literally take the definition here and apply what a private street is between the two
38 parcels you would wind up with a private street there that would have to be built to the minimum·
39 width when a normal driveway would normally be needed to serve this.
40
41 Mr. Williams: So the driveway served both lots or just serves this one lot? It goes through the
42 other lot and serves this parceL
43
44 Commissioner Lippert: Exactly.
45
46 Mr. Williams: So it is just serving one lot.
Page 9
1 Commissioner Lippert: No, it could serve both lots. It serves both lots because it is an
2 ingress/egress easement. Then what adds insult to injury I guess is that the adjacent parcel on the
3 other side is very much like that because it is a fan.
4
5 Mr. Williams: So does the adjacent parcel use it for access?
6
7 Commissioner Lippert: Yes.
8
9 Mr. Williams: The first criterion isn't met though. It does have frontage. We have crossed out
10 that 'required minimum frontage.'
11
12 Commissioner Lippert: Okay, so that is gone.
13
14 Mr. Williams: So if the lot has frontage on a public street.
15
16 Mr. Larkin: The other thing I would point out is this only applies to new subdivisions. Because it
17 only applies to new subdivisions it is not the kind of thing where if you were to redevelop
18 without re-subdividing the lot. In your example if that rear lot that is being served only by this
19 easement was to redevelop the house on that property it wouldn't trigger a new subdivision so it
20 wouldn't trigger this ordinance, at least in terms of the street width.
21
22 Commissioner Lippert: The point that I guess I was going to make is that maybe the thing to do
23 is say three or more lots because geometries with threes begin to change radically. With two
24 what you have could very well be that you have two rectangular lots with a driveway that is
25 straddling both properties and both property owners have a right to use it as there is an easement
26 on both properties. You see that a lot in Los Angeles where you have one driveway between
27 houses and then it branches off and you have two separate garages in the back of the property.
28 Does that sound problematic or workable?
29
30 Mr. Williams: I think it would present a different set of problems. Those two parcels could be
3 1 two commercial parcels so having two might very well justify this as a private street and not a
32 driveway. So if you went to three you would be again excluding potentially a significant amount
33 of development that would otherwise be called a private street. So I think that there is sort of a
34 flips ide to that that would not work if the parcels are commercial/residential or whatever. Ijust
35 think the situation that you have outlined is disqualified by two or three things in this paragraph,
36 the first one being that it does have frontage on the public street.
37
38 Commissioner Lippert: Okay. I am interested in hearing from Bob Moss who is about to leave
39 the Chamber. I read through your legal preview. You live in Barron Park, which is really a
40 single-family development. It is rather rural. You don't live near any multifamily housing or
41 commercial lots to speak of I understand your rationale behind what you are looking for in the
42 intent of the law but what is your rationale or your reasoning for getting involved in this?
43
44 Mr. Moss: Why would we do it?
45
46 Commissioner Lippert: Why would you want to do this as an individual?
Page 10
1 Mr. Moss: Well, we were seeing an awful lot of problems with private street development.
2 People who live near Arbor Real in particular were complaining very vociferously about the
3 overflow parking. I drove in there and I could see there was a real problem getting equipment in,
4 getting garbage trucks and emergency vehicles, which has been verified by the Green Waste
5 action last week where they are going to start charging extra for servicing those areas.
6 The other thing, and this actually struck a chord among all of you was when it was identified that
7 the area occupied by the private streets was being used to calculate the floor area ratio, the lot
8 sizes and so on. I remember when Staff mentioned this all you kind of said, good heavens this is
9 terrible. It was creating all kinds of problems that had not been anticipated. We were seeing
10 projects come in with the private streets. The one that really pulled a lot of people's cords is the
11 one at West Bayshore and Lorna Verde where they are putting in 96 homes with all private
12 streets. That is going to cause significant overflow parking in that neighborhood. So we just felt
13 this was a loophole that the developers had seized on and we should fix it.
14
15 Commissioner Lippert: Excuse me. I am trying to understand. You live a mile from Arbor Real,
16 approximately.
17
18 Mr. Moss: Right.
19
20 Commissioner Lippert: Arbor Real doesn't impact your neighborhood. What is your interest?
21
22 Chair Garber: Commissioner, although it is a curious topic I don't know if we really need to or
23 the speaker needs to respond necessarily. You are welcome to but I am just giving you cover if
24 you don't feel like you need to.
25
26 Mr. Moss: Well, if the condition exists it is just a matter oftime before something like that is
27 going to happen in Barron Park, just like it is going to happen allover the city. As you know,
28 Barron Park has an unusual street system. We have public streets that are as narrow as 15 feet. I
29 have seen the problems on those streets. I have seen the problems on some of the public streets in
30 Barron Park where you can't get two cars passing each other at the end of Los Robles going
31 down toward Gunn High SchooL You can't get a garbage truck going down that street without it
32 having to backup and every once in awhile hit something like a fire plug which happened about
33 eight or ten years ago and ended up flooding my family room. So building developments with .
34 narrow streets creates problems. If each of us only worries about what happens next door to us
35 and not what happens in the rest of the community I don't think we are being good citizens. So
36 that is the reason that I took on the proj ect.
37
38 Commissioner Lippert: Thank you for answering that.
39
40 Chair Garber: Thank you. Did you have anything else? Commissioner Holman.
41
42 Commissioner Holman: Just one little thing, but I am prompted to make a comment. I would
43 hope as we look at involvement in our community that we look at people who live in the furthest
44 reaches of our community whether we live in Downtown North or Community Center or
45 wherever that we see everyone who lives here as our neighbor. So it does matter.
Page 11
1 Mine is kind of a housekeeping and tracking question, if not a suggestion. Presumably we will
2 get our search function even further improved than where we have it now. So I am just
3 wondering if it might be advantageous to reference Ordinance 5059 in this ordinance subject line
4 so that there can be a cross-reference.
5
6 Mr. Williams: In the findings above you mean? Like on B or C, the Council adopted the
7 amendments as proposed, and put that in the ordinance?
8
9 Commissioner Holman: I don't necessarily have the answer to this. I am sorry it just occurred to
10 me on the spot. I know when searching for things it is difficult sometimes to know what exists
11 pertaining to a particular ordinance. So I was thinking perhaps, this will be ordinance whatever it
12 is, and if you go to the last line of it, amend the definition of private street perhaps as set forth in
13 ordinance number 5059 or something of that nature. So there is just some kind of cross-reference
14 so that a search would tum up this other ordinance.
15
16 Mr. Larkin: We can do that. I was also just going to point out that when this codified in the
17 subdivision code it will have a reference at the end of the sections that identifies each ordinance
18 that amended that section and when that ordinance was adopted.
19
20 Commissioner Holman: That is helpful to know too, thank you.
21
22 Mr. Williams: If you are searching and you are not searching for ordinance number 5059 you are
23 just wanting it to pop up when you see this ordinance?
24
25 Commissioner Holman: Well, you might be looking for 5059 perhaps but if you want to know if
26 there is another ordinance that exists and what it did and what its intention was.
27
28 Mr. Williams: Yes, so I would think it would work in C, where it says on September 21 the
29 Council adopted the amendments as proposed in the initiative petition and then put in there in
30 parenthesis, ordinance number 5059. That should pop up.
31
32 Commissioner Holman: Yes, cross-references I find to be helpful.
33
34 Chair Garber: I see no more lights. Commissioner Keller, a motion perhaps? I apologize
35 Commissioner Keller, Commissioner Fineberg had a comment. We will close the public hearing,
36 thank you.
37
38 Commissioner Fineberg: I had sent a question to Staff about whether it made sense in the
39 definitions to add a definition of a gross lot area and net lot area. We have the ordinance that
40 currently excludes the private street area from the area when we are doing the lot area calculation
41 but we don't have a name to call that gross less private street. So would it make sense to
42 introduce, and obviously there would have to be some double-checking to make sure it doesn't
43 complicate other things in other places, but would it make sense to introduce a definition of a net
44 lot area, which is equal to gross minus private street?
45
Page 12
1 Mr. Williams: I don't think in this case that is helpful because our zoning code defines lot area. It
2 doesn't say gross or net right now. It basically says take your FAR and your density as applied to
3 the lot area and then the definition of lot area excludes. So really our definition of lot area is net
4 lot area because it excludes various easements and watercourses and it had been public right-of-
5 way for streets. Now with the changes that have been made in the initiative it excludes private
6 streets as well. So we would be introducing a net lot area, which would then compel us to then
7 create a gross lot area, which we don't really need to have two. The one works right now. So I
8 don't think it really adds anything to do that at this point.
9
10 Commissioner Fineberg: Okay, so when you are doing these calculations and there is a statement
11 that the parcel's lot area is X and that would exclude everything that should be excluded. What
12 do you call that measurement that you started with before you did the exclusions? For there to be
13 transparency and full information you have to know both numbers. What you started with, what
14 you excluded, and where you ended up. If you only talk about where you end up you don't know
15 what got excluded and where you start from. So that is just why I am asking that.
16
17 Mr. Williams: We call it lot area and then we exclude from that these right-of-ways and
18 easements and such. We don't then call it a net lot area after that. So it is basically a lot area and
19 then for calculation purposes as you get to these other criteria or standards we have excluded
20 those areas. I see your point but I would be very concerned that to come up with these then two
21 definitions that we are going to mess up something else. We are going to have to really think
22 through what kind of implications that has. Are we going to have to go through all of the zoning
23 code to be sure that we are saying gross or net in every place where we say 'lot area' right now?
24 It just says 'lot area.' So I think it is just overly complicated to do that. It is not an area where we
25 have had problems before. The only problem as pointed out in the initiative that it doesn't really
26 speak to the private street issue but now it does.
27
28 Chair Garber: Commissioner Keller, a motion.
29
30 Commissioner Keller: First a couple of brief questions. I think the intent of what Commissioner
31 Fineberg referred to might be met by whenever there are exclusions that are used in calculating
32 the lot areas defined in the code that those exclusion calculations be made part of the Staff
33 Report. That says if you will the plat line enclosed area is X and we excluded X, Y, and Z
34 amounting to or to create a lot area ofY. I think that would provide the intent without having any
35 need to change the ordinances.
36 The second thing is with respect to Commissioner Lippert's question. Is it the policy of Palo Alto
37 to discourage new flag lots that don't already exist?
38
39 Mr. Williams: Yes, it is the policy to.
40
41 Commissioner Keller: So if an existing flag lot exists it can be maintained but we are generally
42 not going to create new flag lots.
43
44 Mr. Williams: Generally not. It takes some kind of exception to create a flag lot.
45
Page 13
I Commissioner Keller: So ifthat even affects one parcel that would be removed from the street
2 for which there would be a driveway. So that is the issue.
3 The last question I am going to bring up is a little bit more interesting and I believe it comes to
4 Comniissioner Fineberg's question about rental housing. An entire development under one
5 ownership, which is some sort of rental process, which could be in a townhouse style if you will
6 but under one ownership I am assuming that the ordinance would not apply to that or would it?
7
8 Mr. Larkin: It wouldn't because this ordinance only comes into play if there is a subdivision and
9 there is no subdivision in that case.
10
11 Commissioner Keller: In that case there is the potential, and I realize that part of what I do as a
12 computer scientist is look at boundary conditions, pun not intended. So the idea is that when you
13 have a rental-housing complex for which narrow driveways are put in which subsequently is
14 converted to a condo complex through a condo conversion I am wondering whether such condo
15 conversions should be prohibited if when it was built it should have had a wider driveway as a
16 condo. I am wondering what the proper way of handling that is.
17
18 Mr. Larkin: We already have an extremely restrictive condo conversion ordinance so it is
19 unlikely that we are going to have a lot of that situation. In the event that somebody was able to
20 meet those criteria and convert a project like that to a condo in most cases condo conversions are
21 required to come up to code. The only wrinkle in Palo Alto that is unique is that our variance
22 ordinance allows us to factor in for the built environment. I don't know how that would work.
23 Honestly, I have not thought of it.
24
25 Commissioner Keller: Allows you to look at the built environment but not the building that you
26 caused for the project. So you can't get benefit from your own created condition.
27
28 Mr. Larkin: In most other cities that is true. Almost all other cities that is true. Palo Alto's
29 variance ordinance at this does not preclude you from creating your own hardship. I think that is
30 something that will be looked at but that is the way that our ordinance is written right now. What
31 I am not sure of though is if you can get a variance from the subdivision ordinance and my guess
32 is that, although I have not looked at that specifically, they would need some sort of exception
33 and I don't know what the findings are for that.
34
35 Commissioner Keller: Okay, so we have two things from that. One is we need to revisit the
36 variance processes to make sure that one can't create one's own hardship and benefit from it.
37
38 Mr. Larkin: You have a subcommittee looking at that.
39
40 Commissioner Keller: Great. The second thing is the issue of the extent to which a subsequent
41 subdivision through the condo conversion has to obey this ordinance.
42
43 Mr. Larkin: My inclination is that they would but I just don't want to say that definitively. We
44 have not had a condominium conversion in well over 20 years.
45
46
Page 14
1 MOTION
2
3 Commissioner Keller: Okay, great. In that case I am ready to make a motion. My motion is to
4 accept Staff recommendation with the following amendments. First where it says Section 2 refers
5 to Section 21.040.030(a) (30) on the third line the word 'lots' is replaced by the word 'parcels' as
6 Staffhad said. The second change is that there be an additional section, which modifies Section
7 21.20.240(b) (4) to include after the first paragraph the words, 'for the purposes of this section
8 "lots" includes fee ownership, condominium, townhouse, or other ownership configurations.
9
10 Mr. Williams: My understanding was that was going in Section 2 under the definition of private
11 street at the end ofthat. For the purposes of the provisions of Section 21.20.240(b) (4) so we
12 don't have to get into the area of the initiative, the term lot includes .....
13
14 Commissioner Keller: Well, the problem is that the if we put it there would that I am not sure
15 whether that let me continue to finish the thing and then we can talk about that, okay? So the
16 third part is that Section 1, paragraph (c) makes reference to ordinance 5059 for the cross-
17 reference.
18
19 Now in terms of your comments about private streets I am not clear if you don't put the
20 paragraph in Section 21.20.240(b)(4) how that would modify the word 'lots' in that paragraph.
21
22 Mr. Larkin: We are putting it in the definition specifically to define the word 'lots' as it applies
23 to this provision. What we don't want to do is start to insert Commission or Council inserted
24 language in the middle of what was done by initiative because it becomes too difficult in the
25 future if 40 or 50 years ago when our private streets definition was first put in the code the
26 Council at that time had no idea how ownership would change in the ensuing 40 or 50 years. We
27 would like to keep the changes that we are going to make right to that definition that isn't part of
28 the initiative and leave the initiative in tact. Thatis the easier way to handle it and it
29 accomplishes you are intending to do.
30
31 Commissioner Keller: Okay, so you are suggesting at the end of 21.040.030( a) (30) a sentence to
32 the effect of for the purposes of what?
33
34 Mr. Williams: For the purpose ofthe provisions of Section 21.20.240(b) (4) the term 'lot'
35 includes fee ownership, condominium, townhome or other ownership configurations. So very
36 specifically here in the definitions we are clarifying that the lot means the same as parcel for that
37 particular purpose in the initiative ordinance.
38
39 Commissioner Keller: Fine. So the second provision that I stated in my motion is being replaced
40 by the one that Planning Director Williams just referenced.
41
42 SECOND
43
44 Commissioner Lippert: Second.
45
Page 15
1 Chair Garber: Seconded by Commissioner Lippert. Would the maker like to speak to their
2 motion?
3 I
4 Commissioner Keller: I think that these changes to the definition of private streets along with the
5 further changes that we have made effectuate the intent of the circulated petition and I think will
6 produce better projects and better law. Thank you.
7
8 Chair Garber: Commissioner Lippert.
9
10 Commissioner Lippert: Thank you very much. First of aH I want to thank Bob Moss. Bob, I
11 appreciate you taking the initiative to do this. My line of questioning was not meant to put you in
12 a compromising position. It really was to clarify what the motivation was behind doing this. You
13 are correct, this body and the City Council has struggled for a very, very long time with trying to
14 get our hands around some consistency in terms of standards for developments. What we have
15 always seemed to run up against is when we get the Tentative Map and we do the Site and
16 Design our hands are tied at a time when we need to make a recommendation to Council. What
17 this enables the City to do is to up front demand that developments take into consideration that
18 they are building more than just driveways and parking that they are actually building mini
19 neighborhoods. The benefit I believe of what you have proposed here or what you have brought
20 forward and Council has forwarded onto us is really a great step in terms of doing two things.
21 Number one is reinforcing the street fabric ofthe city, the circulation, how the city circulation
22 works. Number two I believe it also diminishes the possibility of having enclaves or gated
23 c?mmunities. What it really does is begin to create neighborhood within neighborhoods.
24
25 I have walked around a great many ofthese developments after they have been built and frankly
26 it is very difficult to find your way in and out of these developments. By doing this in some ways
27 it formalizes the street grid and says this is how you get in and out of this area. It makes widths
28 that are appropriate. It allows for the facilities in the way of garbage pickup, fire trucks access as
29 well as parking for the residents and it begins to establish those and formalize them as the
30 requirements of any large development here.
31 So first of all I want to thank you and I think that this is great. I appreciate you bringing this
32 forward.
33
34 Chair Garber: Thank you. Commissioner Fineberg, a friendly amendment?
35
36 Commissioner Fineberg: I would like to offer a friendly amendment, which I believe could be
37 characterized as a correction that Planning Director Williams stated earlier. In Attachment A that
38 last paragraph, the sentence (a) where we substituted the word 'parcels' for the word 'lot' if you
39 continue on in that sentence I believe, I am seeing a nod yes, we need to strike the words, 'the
40 required minimum.' So it would just read, the parcels, which do not have frontage on a public
41 street. The reason for that is because we don't have a required minimum.
42
43 Commissioner Keller: So that is in the third line of paragraph 30, I will accept that.
44
45 Commissioner Lippert: I will accept that as well. That was a concern that I had. Thank you for
46 picking that up.
Page 16
1 Commissioner Fineberg: Also my thoughts and,~<;;pmments. I will be supporting this amendment
2 to the ordinance. I believe it implements what was intended in the initiative and it is a good
3 thing.
4
5 MOTION PASSED (7-0-0-0)
6
7 Chair Garber: I see no other lights. Let's vote. All those in favor ofthe motion as stated please
8 say aye. (ayes) All those opposed? The motion passes unanimously with Commissioners
9 Holman, Martinez, Fineberg, Garber, Tuma, Keller, and Lippert voting aye.
Page 17
CITY OF PALO ALTO
Memorandum
14
February 1,2010
TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER
DATE: FEBRUARY 1,2010
DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
SUBJECT: Consider the Approval of Water Supply Assessment for Stanford Medical Center
Staff requests that this item described above be continued to the City Council hearing of
February 8, 2010.
Thank you.
C RTIS WILLIAMS
Director of Planning and
Community Environment