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2015-01-12 City Council Agenda Packet
CITY OF PALO ALTO CITY COUNCIL JANUARY 12, 2015 Regular Meeting Council Chambers 6:00 PM Agenda posted according to PAMC Section 2.04.070. Supporting materials are available in the Council Chambers on the Thursday preceding the meeting. PUBLIC COMMENT Members of the public may speak to agendized items; up to three minutes per speaker, to be determined by the presiding officer. If you wish to address the Council on any issue that is on this agenda, please complete a speaker request card located on the table at the entrance to the Council Chambers, and deliver it to the City Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Council, but it is very helpful. TIME ESTIMATES Time estimates are provided as part of the Council's effort to manage its time at Council meetings. Listed times are estimates only and are subject to change at any time, including while the meeting is in progress. The Council reserves the right to use more or less time on any item, to change the order of items and/or to continue items to another meeting. Particular items may be heard before or after the time estimated on the agenda. This may occur in order to best manage the time at a meeting or to adapt to the participation of the public. To ensure participation in a particular item, we suggest arriving at the beginning of the meeting and remaining until the item is called. 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 up to three minutes for concluding remarks after other members of the public have spoken. Call to Order Study Session 6:00-7:00 PM 1.Presentation From Caltrain Staff on the Peninsula Corridor Electrification Project Final Environmental Impact Report Special Orders of the Day 7:00-7:20 PM 2.Presentation Regarding the Community Services Department's Summer Programs 3.Resolution of the Council of the City of Palo Alto Expressing Appreciation to Greg Betts Upon His Retirement 1 January 12, 2015 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. REVISED City Manager Comments 7:20-7:30 PM Oral Communications 7:30-7:45 PM Members of the public may speak to any item NOT on the agenda. Council reserves the right to limit the duration of Oral Communications period to 30 minutes. Consent Calendar 7:45-7:50 PM Items will be voted on in one motion unless removed from the calendar by three Council Members. 4.Approval and Authorization for the City Manager to Execute an Electric Fund Construction Contract with Pacheco Line Builders, Inc. for a Not To Exceed Amount of $3,000,000 for Three Years, $1,000,000 per year, for Electric Construction Services, Including Maintenance and Minor System Improvement Work on the City’s Overhead Electric Distribution System, and Adoption of a Related Budget Amendment Ordinance for Fiscal Year 2015 to Provide Appropriation in the Amount of $500,000 5.Approval of a Contract With Spencon Construction, Inc. in the Amount of $1,458,610.30 for the FY 2015 Sidewalk, Curb and Gutter Repairs Project 6.Approval of Contract No. C15156020 With CH2M HILL in the TotalAmount Not to Exceed $2,301,221 to Provide Design & Environmental Consulting Services for Sludge Dewatering and Load Out Facility at Regional Water Quality Control Plant - Capital Improvement Program Project WQ- 14001; and Adoption of a Budget Amendment Ordinance in the Amount of $1,942,651 to Provide Additional Appropriation for the Biosolids Facility Project, WQ-14001 7.Approval of a Contract with Innovative Interfaces Incorporated For Sierra, a Hosted Integrated Library System For the Palo Alto City Library For a First Year Cost Not to Exceed $188,814, and Full Contract to Last Not More Than Seven Years (2015-2022) For a Total Amount Not to Exceed $950,301 (CIP Project TE-11001) 8.Request for Authorization to Increase Legal Services Agreement with the law firm of Goldfarb & Lipman LLP by an additional $150,000 for a total not to exceed amount of $380,000 and Adoption of a related Residential Housing In-Lieu Fund Budget Amendment Ordinance 9.Approval of a Short Form Agreement for Revenue Contracts between the City of Palo Alto and the Cardiac Therapy Foundation of the Mid- 2 January 12, 2015 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. At-Place Memo Peninsula, Inc. Concerning The Use of the Gymnasium Facilities and Associated Fees for the Facility Use at the Cubberley Community Center for Jointly Supported Cardiac Therapy Programs 10.Review and Acceptance of Annual Status Report on Development Impact Fees for Fiscal Year 2014 11.Adoption of an Ordinance Governing Public Art for Municipal Projects Action Items Include: Reports of Committees/Commissions, Ordinances and Resolutions, Public Hearings, Reports of Officials, Unfinished Business and Council Matters. 7:50-9:20 PM 12.Council Action on Preliminary Matters Regarding the Application to Close the Buena Vista Mobilehome Park: (1) Determination of the Owner’s Request to Dismiss the Residents Association’s Appeal of theHearing Officer Decision; (2) Adoption of Procedures to Govern the Appeal; and (3) Direction to Staff regarding Scheduling the Appeal9:20-9:50 PM 13.Authorization for the Mayor to Sign a Letter Commenting on the Draft Environmental Impact Report/Environmental Assessment (DEIR) for the Valley Transportation Authority (VTA) Bus Rapid Transit Inter-Governmental Legislative Affairs 9:50-10:10 PM 14.Utilities Advisory Commission Recommendation that the City Council Adopt a Resolution Approving the City of Palo Alto Utilities Legislative Policy Guidelines 10:10-10:40 PM 15.Review and Approval of the Draft Legislative Program Manual and Draft Semi-Annual Legislative Strategic Initiatives Council Member Questions, Comments and Announcements Members of the public may not speak to the item(s) Closed Session 10:40-11:00 PM 16.CONFERENCE WITH CITY ATTORNEY-- EXISTING LITIGATION Subject: Sipple v. City of Alameda, Los Angeles County Superior Court, Case No. BC 462270 Subject Authority: Government Code Section 54956.9(d)(1) 3 January 12, 2015 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. Opposition to Tentative Decision Adjournment AMERICANS WITH DISABILITY ACT (ADA) 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. 4 January 12, 2015 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. Additional Information Supplemental Information Standing Committee Meetings Schedule of Meetings Schedule of Meetings Tentative Agenda Tentative Agenda Informational Report City of Palo Alto Utilities Quarterly Update for the First Quarter of Fiscal Year 2015 Early Release of City Council Agenda Packets 5 January 12, 2015 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. CITY OF PALO ALTO OFFICE OF THE CITY MANAGER January 12, 2015 The Honorable City Council Palo Alto, California Presentation From Caltrain Staff on the Peninsula Corridor Electrification Project Final Environmental Impact Report There is no report associated with this agenda item. Caltrain staff will be providing a presentation and taking questions and comments from the City Council and the members of the public. Department Head: James Keene, City Manager Page 2 City of Palo Alto (ID # 5357) City Council Staff Report Report Type: Special Orders of the Day Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Presentation Regarding CSD Summer Programs Title: Presentation Regarding the Community Services Department's Summer Programs From: City Manager Lead Department: Community Services Attachments: Attachment: Attachment A - CSD Summer Camp Review 2014 (PDF) Summer 2014 Mission-driven, dedicated and passionate staffers ensure that the Community Services Department (CSD) provides the highest quality programs and services possible. Working closely with children, parents and community members, the CSD staff grows deep roots to the amazing quality of life Palo Alto residents enjoy. With 34 parks, 3 open spaces, a golf course, hundreds of recreation classes, 2 museums, 3 theatres, a public art program, an artists studio program, special events like the Moonlight Run, May Fete Parade and Summer Concerts, and a comprehensive human services program, CSD’s work matters. Our bond with the community is perhaps best expressed in the summer season, when our camps and related programs are bursting with activity, creativity, fun and joy. Please enjoy this review of CSD’s 2014 Summer Season, dedicated to retiring CSD Director Greg Betts, who has devoted 31 years to making sure his passion for the work is shared by all of us who are honored to be part of the Community Services Department. 1 | Page CHILDREN’S FINE ART CAMPS “One of the best camps ever! Thanks for providing such a deep experience.” -- Parent Number of Camps: 64 Number of Campers: 800 Number of Waitlisted Campers: 263 Revenue Generated: $158,047 Survey Response Summary: 99% of survey respondents would recommend the camp to a friend. “Thank you so much! I was really impressed by all the staff, including the volunteers, and I particularly liked how well the teachers got to know my daughter and her work in such a short time!” – Parent CHILDREN’S THEATRE CAMPS “Fantastic enthusiastic staff made the joy of theater contagious for my kids!”--Parent Number of Camps: 15 Number of Campers: 453 Number of Waitlisted Campers: 18 Revenue Generated: $208,000 Survey Response Summary: 95% of respondents would recommend the camps to others ““I love this camp and it was a good experience for my first time.”—Camper 2 | Page RECREATION CAMPS Number of Camps: 30 Number of Campers: 804 Number of Waitlisted Campers: 51 Revenue Generated: $268,297 Survey Response Summary: 99% would recommend the camp to others. “She [the Debate Coach] was awesome! Very articulate, thorough, ran the camp professionally - our thanks to her for a great camp!” -- Parent SPECIAL INTEREST CAMPS “Tom enjoyed making the movies and the free play. He voted this as the best camp he has done this year. He enjoyed all the learning and the company of the new friends he made this week.”—Parent Number of Camps: 16 Number of Campers: 477 Number of Waitlisted Campers: 111 Revenue Generated: $176,634 Survey Response Summary: 95% of respondents said they would recommend the camp to their friends. 3 | Page SPORTS CAMPS “I thought my son’s coaches were fantastic. The emphasis was on fun and they delivered,” Parent of Skyhawk’s camper Number of Camps: 110 Number of Campers: 1,140 Revenue Generated: $198,157 JUNIOR MUSEUM and ZOO CAMPS “Thank you! My son looked forward to coming to camp every morning and was so excited to share his projects with us every afternoon!” -- Parent of Camp Kinetic Too camper Number of Camps: 60 Number of Campers: 709 (excluding pre/post campers) Number of Waitlisted Campers: 167 Revenue Generated: $275,633 Survey Response Summary: 95% rated the camps as excellent or superior to other camps “My daughter really loves it! It’s one of the best camps. Thumbs up!” -- Parent of a Zoo Camper 4 | Page AQUATICS Number of Swimmers: 1,505 Number of Life Guards: 70 Revenue Generated: $187,385 (including Pool fees and private parties) “My 3 children have taken lessons at Rinconada for the last 8 years. It has always been a great experience. Now the older kids would love to take a diving class. Keep up the good work!” - Parent OPEN SPACE and PARKS Open Space, Parks, and Golf offers over 4,000 acres of park land, three nature centers, two native plant nurseries, and diverse recreational activities including: hiking, biking, canoeing, windsurfing, baseball, basketball, tennis, lawn bowling, golfing, nature observation, skate bowl, community gardening, 3 dog parks, and coming soon- bocce! Our park system has something fun for everyone! Number of summer weekends Foothills Park Campground is completely booked: 98% Number of summer weekends the reserve-able picnic areas are fully booked: 84% Number of Community Gardeners: 280 “There is something for everyone here. From tennis courts and soccer fields to picnic areas and playgrounds, my children love it. There is even a water feature to run through during the summer months” –Park Visitor OPEN SPACE VISITORS PER YEAR: Foothills: 195,000 Arastradero: 125,000 Baylands: 850,000 TOTAL: 1,070,000 5 | Page SPECIAL EVENTS The Chili Cook-Off, a popular summer tradition in our city, had over 8,000 attendees this year. Attendees not only enjoyed over 18 kinds of chili, but for the first time there was an ‘ ice cream taste off’ featuring 6 different kinds of the cold and creamy treat. Rich Chili - Returning Champion for 2013 COMMUNITY SERVICES DEPARTMENT VOLUNTEERISM “Thank you so much for making me feel welcome…It has been so wonderful volunteering at the Art Center this past year.” – Teen Volunteer Volunteers are an essential partner for all CSD locations. Volunteers provide regular (weekly) and one-time support to a variety of CSD programs. CSD provides opportunities for youth in the community to perform community service and to earn volunteer hours. All CSD summer camps work with CITS (Counselors in Training). Many volunteer board members, commissioners and other helpers from the community volunteer their time to support CSD programs. The Art Center has the only City employee focused on volunteer coordination. The Junior Museum and Zoo receives many more applications for CITs than it is able to place due to lack of capacity to manage so many CITs. The following figures refer to annual, not just summer, volunteer data. 6 | Page Art Center Volunteers: Number of Volunteers: 804 Number of Adult Professional Interns: 25 Total Number of Service Hours: 7,923 Value of Service Hours: $208,454 Volunteer Age Range: 12-90 Recreation Volunteers: Total Number of Service Hours : 4100 hours Value of Service Hours: $107,871 Junior Museum and Zoo: Total Number of Service Hours: 3375 Value of Service Hours: $88,796 Volunteer Age Range: Grades 8-11 Children’s Theatre: Total Number of Volunteers: 1011 Total Number of Service Hours: 4058 Value of Service Hours: $106,764 Open Space and Parks: Total Number of Service Hours: 16,000 hours Value of Service Hours: $420,960 NOTES: $26.31/hour used to calculate Value of Service Hours; Data on Pre and Post camps were NOT included Greg Betts Director of Community Services Department City of Palo Alto Employee for 31 years 7 | Page RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO EXPRESSING APPRECIATION TO GREG BETTS UPON HIS RETIREMENT WHEREAS, Greg Betts has enthusiastically served the citizens of Palo Alto for over three decades as an innovative, compassionate and customer-focused leader who has developed successful programs, fostered strategic partnerships, enhanced community assets and achieved measurable customer satisfaction; and WHEREAS, Greg first joined the City of Palo Alto as a volunteer at Animal Services in 1972, then worked as a part-time employee during high school and college, and then in December 1983 he was hired as Superintendent of Animal Service and worked there until 1996, when he ultimately joined the Community Services Department; and WHEREAS, since joining Community Services, Greg, has worked tirelessly to connect stakeholders and create partnerships that have resulted in many stewardship programs, various habitat restoration projects, and grant funding programs that have expanded and enhanced our community assets to include the Heritage Park playground, Lytton Plaza renovations, Cogswell Plaza Wi-Fi, and most recently the Magical Bridge Universal Access Playground at Mitchell Park; and WHEREAS, Greg has lead the City’s park expansion efforts by dedicating Heritage Park and the Bressler Property at the Arastradero Preserve, enlarging Foothills Park, and creating the Bay-to-Ridge Trail to connect urban areas to open space preserves and four nature centers from the Baylands to Skyline; and WHEREAS, Greg has facilitated extensive public outreach for the long-term planning efforts of specific park and facility design such as the Arastradero Preserve Educational Gateway Facility and Mitchell Park Community Center, and has initiated the City-wide Parks, Open Space, Trails and Recreation Master Planning Process for the next 30 years of Palo Alto recreational facilities; and WHEREAS, while working for Animal Services, developed pet adoption counseling and screening protocols, expanded animal control service contracts with neighboring cities and implemented the microchip program for pet recovery. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Palo Alto recognizes Greg Betts for his tireless and enthusiastic commitment to the people of Palo Alto and thank him for his 31 years of dedicated service on their behalf. INTRODUCED AND PASSED: January 12, 2015 ATTEST: APPROVED: ___________________ ______________________ City Clerk Mayor APPROVED AS TO FORM: ____________________ ______________________ City Attorney City Manager City of Palo Alto (ID # 5388) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Overhead Construction Services FY 2014-2015 Title: Approval and Authorization for the City Manager to Execute an Electric Fund Construction Contract with Pacheco Line Builders, Inc. for a Not To Exceed Amount of $3,000,000 for Three Years, $1,000,000 per year, for Electric Construction Services, Including Maintenance and Minor System Improvement Work on the City’s Overhead Electric Distribution System, and Adoption of a Related Budget Amendment Ordinance for Fiscal Year 2015 to Provide Appropriation in the Amount of $500,000 From: City Manager Lead Department: Utilities Recommendation Staff recommends that Council: 1) Approve and authorize the City Manager to execute the attached construction contract (see Attachment A – Contract) with Pacheco Line Builders, Inc. (“Pacheco”) in an amount not-to-exceed $3,000,000 over 3 years, with a not to exceed amount of $1,000,000 per year, for Electric Overhead Construction Services, which includes construction maintenance and system improvement work on the City’s overhead electric distribution system at various locations throughout the City of Palo Alto. 2) Adopt a related Budget Amendment Ordinance to appropriate $500,000 from the Electric Distribution Reserves to the Electric Fund operating budget (Attachment C). Background During regular electric system inspection and evaluation, the Electric Operations Division (“Electric Operations”) identifies maintenance work throughout the utility electric distribution system. This includes identifying safety hazards, regulatory infractions, and deteriorated infrastructure, such as wood poles, that need to be replaced. There are currently insufficient resources within Electric Operations to complete all of the currently identified and anticipated construction work over the next three years. City of Palo Alto Page 2 The electric overhead construction services covered under this construction contract will be used to assist Electric Operations with completing the maintenance work necessary to keep the overhead electric distribution system in compliance with state and utility regulations, and operating in a safe, reliable, and efficient manner. The construction services will also be used to provide assistance and support to Electric Operations during emergency or storm situations. Discussion The work to be performed under this contract involves construction services on the City’s overhead electric distribution system. Staff prepared an Invitation for Bids (“IFB”) soliciting qualified contractors to provide Overhead Electric Construction crew(s) at the City’s request and billed on a time and equipment basis. An Overhead Construction Specification was included in the IFB detailing the type of construction work that the contracted crew is expected to complete. The proposers bid on the contract by providing labor and equipment rates for the various personnel and equipment that make up the typical overhead construction crews. The labor and equipment rates were then evaluated using a bid formula that anticipated the City’s use of contract crews. The bid summary provided in Attachment B shows how the labor and equipment rates the proposers submitted are used to create different crew rates and then evaluated. The following table summarizes the bid process initiated in September 2014: Bid Name / Number Overhead Construction Services FY 2014-2015 / IFB-155983 Proposed Length of Project 3 years Number of Bids Mailed to Contractors 27 Number of Bids Mailed to Builder’s Exchanges 8 Total Days to Respond to Bid 27 Pre-Bid Meeting Yes Number of Company Attendees at Pre-Bid Meeting 3 Number of Bids Received 3* Bid Evaluation Price Range From $507.16- $586.10 * Bid summary provided in Attachment B Staff has reviewed all bids submitted and recommends that the bid submitted by Pacheco be accepted and that Pacheco be declared the lowest responsive, responsible bidder by Council. Although Pacheco’s bid amount was the second lowest bid received overall (approximately 7% above the lowest received bid), Pacheco submitted the lowest responsive bid. PAR Electrical Contractors, Inc. (“PAR”) submitted the lowest bid overall; however, PAR’s bid included various changes and exceptions to the City’s IFB, including substantive changes to the City’s standard form contract. As a result, PAR’s bid is non-responsive pursuant to section 2.30.440(b) of the Palo Alto Municipal Code because it does not conform in all material respects to the requirements of the bid documents.. City of Palo Alto Page 3 Staff confirmed with the Contractor’s State License Board that Pacheco has an active license on file. Pacheco has preformed satisfactory work on a similar multi-year contract established from 2008-2011 for overhead construction services. Timeline In the event that Council approves the Contract, Pacheco will provide City requested operation crew(s) within 7 days of the issuance of Notice to Proceed. Resource Impact For FY 2015, $500,000 of the funds required for the construction contract is available in Electric System Improvements Capital Improvement Program project (EL-98003). The remaining $500,000 for FY 2015 will be added to the Electric Fund operating budget, offset by a reduction to the Electric Distribution Fund Operations Reserve, via the attached BAO. Continued work under this contract for FY 2016 through 2018 will be subject to satisfactory performance by the contractor and City Council approval of annual appropriations. Policy Implications The approval of this construction contract is consistent with existing city policies, including the Council approved Utilities Strategic Plan to operate the electric distribution system in a cost effective manner and to invest in utility infrastructure to deliver reliable service. Environmental Review This project does not meet the definition of a project pursuant to section 21065 of the California Public Resources Code and is otherwise categorically exempt from the California Environmental Quality Act (CEQA), under section 15301 (repair or maintenance of existing facilities), and section 15302 (replacement or reconstruction of existing structures and facilities) of Title 14 of the California Code of Regulations (the “CEQA Guidelines”). Attachments: Attachment A: Contract C15155783 Overhead 2015 (PDF) Attachment B: IFB 155983 Bid Summary (PDF) Attachment C: BAO XXXX Pacheco Contract Electric (PDF) CONSTRUCTION CONTRACT Contract No. C15155783 City of Palo Alto and Pacheco Utility Line Builders, Inc. PROJECT “Overhead Construction Services FY 2014-2015” Invitation for Bid (IFB) Package 1 Rev. July 2012 CONSTRUCTION CONTRACT ATTACHMENT A CONSTRUCTION CONTRACT TABLE OF CONTENTS SECTION 1. INCORPORATION OF RECITALS AND DEFINITIONS……………………………….. .................... 5 1.1 Recitals .............................................................................................................. 5 1.2 Definitions .......................................................................................................... 5 SECTION 2. THE PROJECT……………………………………………………………………………… .............................. 5 SECTION 3. THE CONTRACT DOCUMENTS…………………………………………………………. ......................... 5 3.1 List of Documents …………………………………………………………………………………………. ..... 5 3.2 Order of Precedence …………………………………………………………………………… ............... 6 SECTION 4. THE WORK ………………………………………………………………………………….............................. 6 SECTION 5. PROJECT TEAM ………………………………………………………………………….. ............................. 7 SECTION 6. TIME OF COMPLETION ………………………………………………………………….. .......................... 7 6.1 Time Is of Essence ....................................................................................... ……… 7 6.2 Commencement of Work .................................................................................... 7 6.3 Contract Time ..................................................................................................... 7 6.4 Liquidated Damages ........................................................................................... 7 6.4.1 Entitlement……………………………………………………………………………………………. 7 6.4.2 Daily Amount…………………………………………………………………………………………. 8 6.4.3 Exclusive Remedy………………………………………………………………………………….. 8 6.4.4 Other Remedies…………………………………………………………………………………... 8 6.5 Adjustments to Contract Time ......................................................................... … 8 SECTION 7. COMPENSATION TO CONTRACTOR………………………………………………………………………... 8 7.1 Contract Sum ……………………………………………………………………………………………………… 8 7.2 Full Compensation …………………………………………………………………………………………….. 9 7.3 Compensation for Extra or Deleted Work …………………………………………………………….9 7.3.1 Self Performed Work………………………………………………………………………………… 9 7.3.2 Subcontractors…………………………………………………………………………………………. 9 SECTION 8. STANDARD OF CARE .................................................................................................. 9 SECTION 9. INDEMNIFICATION .................................................................................................... 10 9.1 Hold Harmless…………………………………………………………………………………………………….. 10 9.2 Survival………………………………………………………………………………………………………………. 10 SECTION 10. NONDISCRIMINATION ............................................................................................. 10 SECTION 11. INSURANCE AND BONDS ......................................................................................... 10 Invitation for Bid (IFB) Package 2 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 12. PROHIBITION AGAINST TRANSFERS ......................................................................... 11 SECTION 13. NOTICES .................................................................................................................. 11 13.1 Method of Notice ………………………………………………………………………………………………..11 13.2 Notice Recipients ................................................................................................ 11 13.3 Change of Address .............................................................................................. 12 14.1 Resolution of Contract Disputes .......................................................................... 12 14.2 Resolution of Other Disputes .............................................................................. 12 14.2.1 Non-Contract Disputes ……………………………………………………………………………….12 14.2.2 Litigation, City Election ……………………………………………………...........................13 14.3 Submission of Contract Dispute …………………………………………………………………………..13 14.3.1 By Contractor …………………………………………………………………………………………. 13 14.3.2 By City ……………………………………………………………………………………………………. 13 14.4 Contract Dispute Resolution Process .............................................................. …… 13 14.4.1 Direct Negotiation………………………………………………………………………… ………….13 14.4.2 Deferral of Contract Disputes ………………………………………………………………… 14 14.4.3 Mediation ………………………………………………………………………………………………….14 14.4.4 Binding Arbitration ……………………………………………………………………………………15 14.5 Non-Waiver …………………………………………………………………………………………………………16 SECTION 15. DEFAULT ................................................................................................................. 16 15.1 Notice of Default ................................................................................................ 16 15.2 Opportunity to Cure Default ............................................................................... 16 SECTION 16. CITY'S RIGHTS AND REMEDIES ................................................................................. 16 16.1 Remedies Upon Default ...................................................................................... 16 16.1.1 Delete Certain Servic………………………………………………………...........................16 16.1.2 Perform and Withhold ……………………………………………………………………………. 16 16.1.3 Suspend The Construction Contract ………………………………………………………….16 16.1.4 Terminate the Construction Contract for Default ……………………………………..17 16.1.5 Invoke the Performance Bond ………………………………………………………………….17 16.1.6 Additional Provisions ……………………………………………………………………………….17 16.2 Delays by Sureties .............................................................................................. 17 16.3 Damages to City ................................................................................................. 17 16.3.1 For Contractor's Default …………………………………………………………………………..17 16.3.2 Compensation for Losses ………………………………………………………………………….17 16.5 Suspension by City for Convenience .................................................................... 18 16.6 Termination Without Cause ................................................................................ 18 Invitation for Bid (IFB) Package 3 Rev. July 2012 CONSTRUCTION CONTRACT 16.6.1 Compensation ………………………………………………………………………………………….18 16.6.2 Subcontractors …………………………………………………………………………………………18 16.7 Contractor’s Duties Upon Termination ................................................................ 19 SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES .................................................................. 19 17.1 Contractor’s Remedies ........................................................................................ 19 17.1.1 For Work Stoppage ………………………………………………………………………………….. 19 17.1.2 For City's Non-Payment …………………………………………………………………………… 19 17.2 Damages to Contractor ....................................................................................... 19 SECTION 18. ACCOUNTING RECORDS .......................................................................................... 19 18.1 Financial Management and City Access ......................................................... ……. 19 18.2 Compliance with City Requests ....................................................................... …. 20 SECTION 19. INDEPENDENT PARTIES ........................................................................................... 20 SECTION 20. NUISANCE ............................................................................................................... 20 SECTION 21. PERMITS AND LICENSES........................................................................................... 20 SECTION 22. WAIVER .................................................................................................................. 20 SECTION 23. GOVERNING LAW .................................................................................................... 20 SECTION 24. COMPLETE AGREEMENT .......................................................................................... 21 SECTION 25. SURVIVAL OF CONTRACT ......................................................................................... 21 SECTION 26. PREVAILING WAGES ................................................................................................ 21 SECTION 27. NON APPROPRIATION ............................................................................................. 21 SECTION 28. GOVERNMENTAL POWERS ...................................................................................... 21 SECTION 29. ATTORNEY FEES ...................................................................................................... 21 SECTION 30. COUNTERPARTS ...................................................................................................... 22 SECTION 31. SEVERABILITY .......................................................................................................... 22 Invitation for Bid (IFB) Package 4 Rev. July 2012 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT entered into on 12th day of January 2015 (“Execution Date”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and PACHECO UTILITY LINE BUILDERS, INC. ("Contractor"), is made with reference to the following: R E C I T A L S: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Contractor is a corporation duly organized and in good standing in the State of California, Contractor’s License Number 750251. Contractor represents that it is duly licensed by the State of California and has the background, knowledge, experience and expertise to perform the obligations set forth in this Construction Contract. C. On September 17, 2014, City issued an Invitation for Bids (IFB) 155983 to contractors for the “Overhead Construction Services FY 2014-2015” (“Project”). In response to the IFB, Contractor submitted a bid. D. City and Contractor desire to enter into this Construction Contract for the Project, and other services as identified in the Bid Documents for the Project upon the following terms and conditions. NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the undersigned parties as follows: SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS. 1.1 Recitals. All of the recitals are incorporated herein by reference. 1.2 Definitions. Capitalized terms shall have the meanings set forth in this Construction Contract and/or in the General Conditions. If there is a conflict between the definitions in this Construction Contract and in the General Conditions, the definitions in this Construction Contract shall prevail. SECTION 2 THE PROJECT. The Project is the construction of the “Overhead Construction Services FY 2014-2015” ("Project"). SECTION 3 THE CONTRACT DOCUMENTS. 3.1 List of Documents. The Contract Documents (sometimes collectively referred to as “Agreement” or “Bid Documents”) consist of the following documents which are on file with the Purchasing Division and are hereby incorporated by reference. 1) Change Orders 2) Field Change Orders Invitation for Bid (IFB) Package 5 Rev. July 2012 CONSTRUCTION CONTRACT 3) Contract 4) Project Plans and Drawings 5) Technical Specifications 6) Special Provisions 7) Notice Inviting Bids 8) Instructions to Bidders 9) General Conditions 10) Bidding Addenda 11) Invitation for Bids 12) Contractor's Bid/Non-Collusion Affidavit 13) Reports listed in the Bidding Documents 14) Public Works Department’s Standard Drawings and Specifications dated 2007 and updated from time to time 15) Utilities Department’s Water, Gas, Wastewater, Electric Utilities Standards dated 2005 and updated from time to time 16) City of Palo Alto Traffic Control Requirements 17) City of Palo Alto Truck Route Map and Regulations 18) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre- Qualification Checklist (if applicable) 19) Performance and Payment Bonds 20) Insurance Forms 3.2 Order of Precedence. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in the preceding section. If a claimed inconsistency cannot be resolved through the order of precedence, the City shall have the sole power to decide which document or provision shall govern as may be in the best interests of the City. SECTION 4 THE WORK. The Work includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all other things necessary for Contractor to perform its obligations and complete the Project, including, without Invitation for Bid (IFB) Package 6 Rev. July 2012 CONSTRUCTION CONTRACT limitation, any Changes approved by City, in accordance with the Contract Documents and all Applicable Code Requirements. SECTION 5 PROJECT TEAM. In addition to Contractor, City has retained, or may retain, consultants and contractors to provide professional and technical consultation for the design and construction of the Project. The Project requires that Contractor operate efficiently, effectively and cooperatively with City as well as all other members of the Project Team and other contractors retained by City to construct other portions of the Project. SECTION 6 TIME OF COMPLETION. 6.1 Time Is of Essence. Time is of the essence with respect to all time limits set forth in the Contract Documents. 6.2 Commencement of Work. Contractor shall commence the Work on the date specified in City’s Notice to Proceed. 6.3 Contract Time. Work hereunder shall begin on the date specified on the City’s Notice to Proceed and shall be completed not later than January 11, 2018. 6.4 Liquidated Damages. 6.4.1 Entitlement. City and Contractor acknowledge and agree that if Contractor fails to fully and satisfactorily complete the Work within the Contract Time, City will suffer, as a result of Contractor’s failure, substantial damages which are both extremely difficult and impracticable to ascertain. Such damages may include, but are not limited to: (i) Loss of public confidence in City and its contractors and consultants. (ii) Loss of public use of public facilities. (iii) Extended disruption to public. Invitation for Bid (IFB) Package 7 Rev. July 2012 CONSTRUCTION CONTRACT 6.4.2 Daily Amount. City and Contractor have reasonably endeavored, but failed, to ascertain the actual damage that City will incur if Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time. Therefore, the parties agree that in addition to all other damages to which City may be entitled other than delay damages, in the event Contractor shall fail to achieve Substantial Completion of the entire Work within the Contract Time, Contractor shall pay City as liquidated damages the amount of $500 per day for each Day occurring after the expiration of the Contract Time until Contractor achieves Substantial Completion of the entire Work. The liquidated damages amount is not a penalty but considered to be a reasonable estimate of the amount of damages City will suffer by delay in completion of the Work. 6.4.3 Exclusive Remedy. City and Contractor acknowledge and agree that this liquidated damages provision shall be City’s only remedy for delay damages caused by Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.4.4 Other Remedies. City is entitled to any and all available legal and equitable remedies City may have where City’s Losses are caused by any reason other than Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.5 Adjustments to Contract Time. The Contract Time may only be adjusted for time extensions approved by City and agreed to by Change Order executed by City and Contractor in accordance with the requirements of the Contract Documents. SECTION 7 COMPENSATION TO CONTRACTOR. 7.1 Contract Sum. Contractor shall be compensated for satisfactory completion of the Work in compliance with the Contract Documents in the Not to Exceed amount of Three Million Dollars ($3,000,000). Invitation for Bid (IFB) Package 8 Rev. July 2012 CONSTRUCTION CONTRACT 7.2 Full Compensation. The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor and, except as otherwise expressly permitted by the terms of the Contract Documents, shall cover all Losses arising out of the nature of the Work or from the acts of the elements or any unforeseen difficulties or obstructions which may arise or be encountered in performance of the Work until its Acceptance by City, all risks connected with the Work, and any and all expenses incurred due to suspension or discontinuance of the Work. The Contract Sum may only be adjusted for Change Orders issued, executed and satisfactorily performed in accordance with the requirements of the Contract Documents. 7.3 Compensation for Extra or Deleted Work. The Contract Sum shall be adjusted (either by addition or credit) for Changes in the Work involving Extra Work or Deleted Work based on one or more of the following methods to be selected by City: 1. Unit prices stated in the Contract Documents or agreed upon by City and Contractor, which unit prices shall be deemed to include Contractor Markup and Subcontractor/Sub-subcontractor Markups permitted by this Section. 2. A lump sum agreed upon by City and Contractor, based on the estimated Allowable Costs and Contractor Markup and Subcontractor Markup computed in accordance with this Section. 3. Contractor’s Allowable Costs, plus Contractor Markup and Subcontractor Markups applicable to such Extra Work computed in accordance with this Section. Contractor Markup and Subcontractor/Sub-subcontractor Markups set forth herein are the full amount of compensation to be added for Extra Work or to be subtracted for Deleted Work that is attributable to overhead (direct and indirect) and profit of Contractor and of its Subcontractors and Sub-subcontractors, of every Tier. When using this payment methodology, Contractor Markup and Subcontractor/Sub-subcontractor Markups, which shall not be compounded, shall be computed as follows: 7.3.1 Markup Self-Performed Work. 10% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be performed by Contractor with its own forces. 7.3.2 Markup for Work Performed by Subcontractors. 15% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be performed by a first Tier Subcontractor. SECTION 8 STANDARD OF CARE. Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised personnel. All services performed in connection with this Construction Contract shall be performed in a manner consistent with the standard of care under California law applicable to those who specialize in providing such services for projects of the type, scope and complexity of the Project. Invitation for Bid (IFB) Package 9 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 9 INDEMNIFICATION. 9.1 Hold Harmless. To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to City, from and against any and all Losses arising directly or indirectly from, or in any manner relating to any of, the following: (i) Performance or nonperformance of the Work by Contractor or its Subcontractors or Sub- subcontractors, of any tier; (ii) Performance or nonperformance by Contractor or its Subcontractors or Sub- subcontractors of any tier, of any of the obligations under the Contract Documents; (iii) The construction activities of Contractor or its Subcontractors or Sub-subcontractors, of any tier, either on the Site or on other properties; (iv) The payment or nonpayment by Contractor to any of its employees, Subcontractors or Sub-subcontractors of any tier, for Work performed on or off the Site for the Project; and (v) Any personal injury, property damage or economic loss to third persons associated with the performance or nonperformance by Contractor or its Subcontractors or Sub- subcontractors of any tier, of the Work. However, nothing herein shall obligate Contractor to indemnify any Indemnitee for Losses resulting from the sole or active negligence or willful misconduct of the Indemnitee. Contractor shall pay City for any costs City incurs to enforce this provision. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 9.2 Survival. The provisions of Section 9 shall survive the termination of this Construction Contract. SECTION 10 NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. Contractor acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and will comply with all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 11 INSURANCE AND BONDS. On or before the Execution Date, Contractor shall provide City with evidence that it has obtained insurance and Performance and Payment Bonds satisfying all requirements in Article 11 of the General Conditions. Failure to do so shall be deemed a material breach of this Construction Contract. Invitation for Bid (IFB) Package 10 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 12 PROHIBITION AGAINST TRANSFERS. City is entering into this Construction Contract based upon the stated experience and qualifications of the Contractor and its subcontractors set forth in Contractor’s Bid. Accordingly, Contractor shall not assign, hypothecate or transfer this Construction Contract or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or transfer without said consent shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor or of any general partner or joint venturer or syndicate member of Contractor, if the Contractor is a partnership or joint venture or syndicate or co-tenancy shall result in changing the control of Contractor, shall be construed as an assignment of this Construction Contract. Control means more than fifty percent (50%) of the voting power of the corporation or other entity. SECTION 13 NOTICES. 13.1 Method of Notice. All notices, demands, requests or approvals to be given under this Construction Contract shall be given in writing and shall be deemed served on the earlier of the following: (i) On the date delivered if delivered personally; (ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and addressed as hereinafter provided; (iii) On the date sent if sent by facsimile transmission; (iv) On the date sent if delivered by electronic mail; or (v) On the date it is accepted or rejected if sent by certified mail. 13.2 Notice Recipients. All notices, demands or requests (including, without limitation, Claims) from Contractor to City shall include the Project name and the number of this Construction Contract and shall be addressed to City at: To City: City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Copy to: City of Palo Alto Public Works Administration 250 Hamilton Avenue Palo Alto, CA 94301 Attn: Or Invitation for Bid (IFB) Package 11 Rev. July 2012 CONSTRUCTION CONTRACT City of Palo Alto Utilities Engineering 250 Hamilton Avenue Palo Alto, CA 94301 Attn: Jeevan Valath In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following: Palo Alto City Attorney’s Office 250 Hamilton Avenue P.O. Box 10250 Palo Alto, California 94303 All Claims shall be delivered personally or sent by certified mail. All notices, demands, requests or approvals from City to Contractor shall be addressed to: Pacheco Utility Line Builders Inc 615 10th Avenue Menlo Park, CA 94025-1807 13.3 Change of Address. In the event of any change of address, the moving party shall notify the other party of the change of address in writing. Each party may, by written notice only, add, delete or replace any individuals to whom and addresses to which notice shall be provided. SECTION 14 DISPUTE RESOLUTION. 14.1 Resolution of Contract Disputes. Contract Disputes shall be resolved by the parties in accordance with the provisions of this Section 14, in lieu of any and all rights under the law that either party have its rights adjudged by a trial court or jury. All Contract Disputes shall be subject to the Contract Dispute Resolution Process set forth in this Section 14, which shall be the exclusive recourse of Contractor and City for such Contract Disputes. 14.2 Resolution of Other Disputes. 14.2.1 Non-Contract Disputes. Contract Disputes shall not include any of the following: (i) Penalties or forfeitures prescribed by statute or regulation imposed by a governmental agency; (ii) Third party tort claims for personal injury, property damage or death relating to any Work performed by Contractor or its Subcontractors or Sub-subcontractors of any tier; (iii) False claims liability under California Government Code Section 12650, et. seq.; (iv) Defects in the Work first discovered by City after Final Payment by City to Contractor; (v) Stop notices; or (vi) The right of City to specific performance or injunctive relief to compel performance of any provision of the Contract Documents. Invitation for Bid (IFB) Package 12 Rev. July 2012 CONSTRUCTION CONTRACT 14.2.2 Litigation, City Election. Matters that do not constitute Contract Disputes shall be resolved by way of an action filed in the Superior Court of the State of California, County of Santa Clara, and shall not be subject to the Contract Dispute Resolution Process. However, the City reserves the right, in its sole and absolute discretion, to treat such disputes as Contract Disputes. Upon written notice by City of its election as provided in the preceding sentence, such dispute shall be submitted by the parties and finally decided pursuant to the Contract Dispute Resolution Process in the manner as required for Contract Disputes, including, without limitation, City’s right under Paragraph 14.4.2 to defer resolution and final determination until after Final Completion of the Work. 14.3 Submission of Contract Dispute. 14.3.1 By Contractor. Contractors may commence the Contract Dispute Resolution Process upon City's written response denying all or part of a Claim pursuant to Paragraph 4.2.9 or 4.2.10 of the General Conditions. Contractor shall submit a written Statement of Contract Dispute (as set forth below) to City within seven (7) Days after City rejects all or a portion of Contractor's Claim. Failure by Contractor to submit its Statement of Contract Dispute in a timely manner shall result in City’s decision by City on the Claim becoming final and binding. Contractor’s Statement of Contract Dispute shall be signed under penalty of perjury and shall state with specificity the events or circumstances giving rise to the Contract Dispute, the dates of their occurrence and the asserted effect on the Contract Sum and the Contract Time. The Statement of Contract Dispute shall include adequate supporting data to substantiate the disputed Claim. Adequate supporting data for a Contract Dispute relating to an adjustment of the Contract Time shall include both of the following: (i) All of the scheduling data required to be submitted by Contractor under the Contract Documents to obtain extensions of time and adjustments to the Contract Time and (ii) A detailed, event-by-event description of the impact of each event on completion of Work. Adequate data to support a Statement of Contract Dispute involving an adjustment of the Contract Sum must include both of the following: (a) A detailed cost breakdown and (b) Supporting cost data in such form and including such information and other supporting data as required under the Contract Documents for submission of Change Order Requests and Claims. 14.3.2 By City. City's right to commence the Contract Dispute Resolution Process shall arise at any time following City's actual discovery of the circumstances giving rise to the Contract Dispute. City asserts Contract Disputes in response to a Contract Dispute asserted by Contractor. A Statement of Contract Dispute submitted by City shall state the events or circumstances giving rise to the Contract Dispute, the dates of their occurrence and the damages or other relief claimed by City as a result of such events. 14.4 Contract Dispute Resolution Process. The parties shall utilize each of the following steps in the Contract Dispute Resolution Process in the sequence they appear below. Each party shall participate fully and in good faith in each step in the Contract Dispute Resolution Process, and good faith effort shall be a condition precedent to the right of each party to proceed to the next step in the process. 14.4.1 Direct Negotiations. Designated representatives of City and Contractor shall meet as soon as possible (but not later than ten (10) Days after receipt of the Statement of Contract Dispute) in a good Invitation for Bid (IFB) Package 13 Rev. July 2012 CONSTRUCTION CONTRACT faith effort to negotiate a resolution to the Contract Dispute. Each party shall be represented in such negotiations by an authorized representative with full knowledge of the details of the Claims or defenses being asserted by such party in the negotiations, and with full authority to resolve such Contract Dispute then and there, subject only to City’s obligation to obtain administrative and/or City Council approval of any agreed settlement or resolution. If the Contract Dispute involves the assertion of a right or claim by a Subcontractor or Sub-subcontractor, of any tier, against Contractor that is in turn being asserted by Contractor against City (“Pass-Through Claim”), then the Subcontractor or Sub-Subcontractor shall also have a representative attend the negotiations, with the same authority and knowledge as described above. Upon completion of the meeting, if the Contract Dispute is not resolved, the parties may either continue the negotiations or any party may declare negotiations ended. All discussions that occur during such negotiations and all documents prepared solely for the purpose of such negotiations shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. 14.4.2 Deferral of Contract Disputes. Following the completion of the negotiations required by Paragraph 14.4.1, all unresolved Contract Disputes shall be deferred pending Final Completion of the Project, subject to City’s right, in its sole and absolute discretion, to require that the Contract Dispute Resolution Process proceed prior to Final Completion. All Contract Disputes that have been deferred until Final Completion shall be consolidated within a reasonable time after Final Completion and thereafter pursued to resolution pursuant to this Contract Dispute Resolution Process. The parties can continue informal negotiations of Contract Disputes; provided, however, that such informal negotiations shall not be alter the provisions of the Agreement deferring final determination and resolution of unresolved Contract Disputes until after Final Completion. 14.4.3 Mediation. If the Contract Dispute remains unresolved after negotiations pursuant to Paragraph 14.4.1, the parties shall submit the Contract Dispute to non-binding mediation before a mutually acceptable third party mediator. .1 Qualifications of Mediator. The parties shall endeavor to select a mediator who is a retired judge or an attorney with at least five (5) years of experience in public works construction contract law and in mediating public works construction disputes. In addition, the mediator shall have at least twenty (20) hours of formal training in mediation skills. .2 Submission to Mediation and Selection of Mediator. The party initiating mediation of a Contract Dispute shall provide written notice to the other party of its decision to mediate. In the event the parties are unable to agree upon a mediator within fifteen (15) Days after the receipt of such written notice, then the parties shall submit the matter to the American Arbitration Association (AAA) at its San Francisco Regional Office for selection of a mediator in accordance with the AAA Construction Industry Mediation Rules. .3 Mediation Process. The location of the mediation shall be at the offices of City. The costs of mediation shall be shared equally by both parties. The mediator shall provide an independent assessment on the merits of the Contract Dispute and recommendations for resolution. All discussions that occur during the mediation and all documents prepared solely for the purpose of the mediation shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. Invitation for Bid (IFB) Package 14 Rev. July 2012 CONSTRUCTION CONTRACT 14.4.4 Binding Arbitration. If the Contract Dispute is not resolved by mediation, then any party may submit the Contract Dispute for final and binding arbitration pursuant to the provisions of California Public Contract Code Sections 10240, et seq. The award of the arbitrator therein shall be final and may be entered as a judgment by any court of competent jurisdiction. Such arbitration shall be conducted in accordance with the following: .1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint in arbitration in accordance with the regulations promulgated pursuant to California Public Contract Code Section 10240.5. .2 Qualifications of the Arbitrator. The arbitrator shall be approved by all parties. The arbitrator shall be a retired judge or an attorney with at least five (5) years of experience in public works construction contract law and in arbitrating public works construction disputes. In addition, the arbitrator shall have at least twenty (20) hours of formal training in arbitration skills. In the event the parties cannot agree upon an arbitrator, the provisions of California Public Contract Code Section 10240.3 shall be followed in selecting an arbitrator possessing the qualifications required herein. .3 Hearing Days and Location. Arbitration hearings shall be held at the offices of City and shall, except for good cause shown to and determined by the arbitrator, be conducted on consecutive business days, without interruption or continuance. .4 Hearing Delays. Arbitration hearings shall not be delayed except upon good cause shown. .5 Recording Hearings. All hearings to receive evidence shall be recorded by a certified stenographic reporter, with the costs thereof borne equally by City and Contractor and allocated by the arbitrator in the final award. .6 Limitation of Depositions. The parties may conduct discovery in accordance with the provisions of section 10240.11 of the Public Contract Code; provided, however, that depositions shall be limited to both of the following: (i) Ten (10) percipient witnesses for each party and 5 expert witnesses per party. Upon a showing of good cause, the arbitrator may increase the number of permitted depositions. An individual who is both percipient and expert shall, for purposes of applying the foregoing numerical limitation only, be deemed an expert. Expert reports shall be exchanged prior to receipt of evidence, in accordance with the direction of the arbitrator, and expert reports (including initial and rebuttal reports) not so submitted shall not be admissible as evidence. .7 Authority of the Arbitrator. The arbitrator shall have the authority to hear dispositive motions and issue interim orders and interim or executory awards. Invitation for Bid (IFB) Package 15 Rev. July 2012 CONSTRUCTION CONTRACT .8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to a jury trial with respect to any Contract Dispute that is subject to binding arbitration in accordance with the provisions of this Paragraph 14.4.4. Contractor shall include this provision in its contracts with its Subcontractors who provide any portion of the Work. 14.5 Non-Waiver. Participation in the Contract Dispute Resolution Process shall not waive, release or compromise any defense of City, including, without limitation, any defense based on the assertion that the rights or Claims of Contractor that are the basis of a Contract Dispute were previously waived by Contractor due to Contractor’s failure to comply with the Contract Documents, including, without limitation, Contractor’s failure to comply with any time periods for providing notice of requests for adjustments of the Contract Sum or Contract Time or for submission of Claims or supporting documentation of Claims. SECTION 15 DEFAULT. 15.1 Notice of Default. In the event that City determines, in its sole discretion, that Contractor has failed or refused to perform any of the obligations set forth in the Contract Documents, or is in breach of any provision of the Contract Documents, City may give written notice of default to Contractor in the manner specified for the giving of notices in the Construction Contract. 15.2 Opportunity to Cure Default. Except for emergencies, Contractor shall cure any default in performance of its obligations under the Contract Documents within two (2) Days (or such shorter time as City may reasonably require) after receipt of written notice. However, if the breach cannot be reasonably cured within such time, Contractor will commence to cure the breach within two (2) Days (or such shorter time as City may reasonably require) and will diligently and continuously prosecute such cure to completion within a reasonable time, which shall in no event be later than ten (10) Days after receipt of such written notice. SECTION 16 CITY'S RIGHTS AND REMEDIES. 16.1 Remedies Upon Default. If Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section 15, then City may pursue any remedies available under law or equity, including, without limitation, the following: 16.1.1 Delete Certain Services. City may, without terminating the Construction Contract, delete certain portions of the Work, reserving to itself all rights to Losses related thereto. 16.1.2 Perform and Withhold. City may, without terminating the Construction Contract, engage others to perform the Work or portion of the Work that has not been adequately performed by Contractor and withhold the cost thereof to City from future payments to Contractor, reserving to itself all rights to Losses related thereto. 16.1.3 Suspend The Construction Contract. City may, without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, suspend all or any portion of this Construction Contract for as long a period of time as City determines, in its sole discretion, appropriate, in which event City shall have no Invitation for Bid (IFB) Package 16 Rev. July 2012 CONSTRUCTION CONTRACT obligation to adjust the Contract Sum or Contract Time, and shall have no liability to Contractor for damages if City directs Contractor to resume Work. 16.1.4 Terminate the Construction Contract for Default. City shall have the right to terminate this Construction Contract, in whole or in part, upon the failure of Contractor to promptly cure any default as required by Section 15. City’s election to terminate the Construction Contract for default shall be communicated by giving Contractor a written notice of termination in the manner specified for the giving of notices in the Construction Contract. Any notice of termination given to Contractor by City shall be effective immediately, unless otherwise provided therein. 16.1.5 Invoke the Performance Bond. City may, with or without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, exercise its rights under the Performance Bond. 16.1.6 Additional Provisions. All of City’s rights and remedies under this Construction Contract are cumulative, and shall be in addition to those rights and remedies available in law or in equity. Designation in the Contract Documents of certain breaches as material shall not waive the City’s authority to designate other breaches as material nor limit City’s right to terminate the Construction Contract, or prevent the City from terminating the Agreement for breaches that are not material. City’s determination of whether there has been noncompliance with the Construction Contract so as to warrant exercise by City of its rights and remedies for default under the Construction Contract, shall be binding on all parties. No termination or action taken by City after such termination shall prejudice any other rights or remedies of City provided by law or equity or by the Contract Documents upon such termination; and City may proceed against Contractor to recover all liquidated damages and Losses suffered by City. 16.2 Delays by Sureties. Without limiting to any of City’s other rights or remedies, City has the right to suspend the performance of the Work by Contractor’s sureties in the event of any of the following: (i) The sureties’ failure to begin Work within a reasonable time in such manner as to insure full compliance with the Construction Contract within the Contract Time; (ii) The sureties’ abandonment of the Work; (iii) If at any time City is of the opinion the sureties’ Work is unnecessarily or unreasonably delaying the Work; (iv) The sureties’ violation of any terms of the Construction Contract; (v) The sureties’ failure to perform according to the Contract Documents; or (vi) The sureties’ failure to follow City’s instructions for completion of the Work within the Contract Time. 16.3 Damages to City. 16.3.1 For Contractor's Default. City will be entitled to recovery of all Losses under law or equity in the event of Contractor’s default under the Contract Documents. 16.3.2 Compensation for Losses. In the event that City's Losses arise from Contractor’s default under the Contract Documents, City shall be entitled to withhold monies otherwise payable to Contractor until Final Completion of the Project. If City incurs Losses due to Contractor’s default, then the amount of Losses shall be deducted from the amounts withheld. Should the amount withheld exceed the amount deducted, the balance will be paid to Contractor or its designee upon Final Completion of the Project. If the Losses incurred by City exceed the amount withheld, Contractor shall be liable to City for the difference and shall promptly remit same to City. Invitation for Bid (IFB) Package 17 Rev. July 2012 CONSTRUCTION CONTRACT 16.4 Suspension by City for Convenience. City may, at any time and from time to time, without cause, order Contractor, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified as a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City’s expense, comply with the order and take all reasonable steps to minimize costs allocable to the Work covered by the Suspension Order. During the Suspension or extension of the Suspension, if any, City shall either cancel the Suspension Order or, by Change Order, delete the Work covered by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume and continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. A Suspension Order shall not be the exclusive method for City to stop the Work. 16.5 Termination Without Cause. City may, at its sole discretion and without cause, terminate this Construction Contract in part or in whole by giving thirty (30) Days written notice to Contractor. The compensation allowed under this Paragraph 16.5 shall be the Contractor’s sole and exclusive compensation for such termination and Contractor waives any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect or incidental damages of any kind resulting from termination without cause. 16.5.1 Compensation. Following such termination and within forty-five (45) Days after receipt of a billing from Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pay the following to Contractor as Contractor’s sole compensation for performance of the Work : .1 For Work Performed. The amount of the Contract Sum allocable to the portion of the Work properly performed by Contractor as of the date of termination, less sums previously paid to Contractor. .2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors and Sub-subcontractors for: (i) Demobilizing and (ii) Administering the close-out of its participation in the Project (including, without limitation, all billing and accounting functions, not including attorney or expert fees) for a period of no longer than thirty (30) Days after receipt of the notice of termination. .3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site which were fabricated for subsequent incorporation in the Work. 16.5.2 Subcontractors. Contractor shall include provisions in all of its subcontracts, purchase orders and other contracts permitting termination for convenience by Contractor on terms that are consistent with this Construction Contract and that afford no greater rights of recovery against Contractor than are afforded to Contractor against City under this Section. Invitation for Bid (IFB) Package 18 Rev. July 2012 CONSTRUCTION CONTRACT 16.6 Contractor’s Duties Upon Termination. Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the notice directs otherwise, do the following: (i) Immediately discontinue the Work to the extent specified in the notice; (ii) Place no further orders or subcontracts for materials, equipment, services or facilities, except as may be necessary for completion of such portion of the Work that is not discontinued; (iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of the notice of termination, of all subcontracts, purchase orders and contracts that are outstanding, including, without limitation, the terms of the original price, any changes, payments, balance owing, the status of the portion of the Work covered and a copy of the subcontract, purchase order or contract and any written changes, amendments or modifications thereto, together with such other information as City may determine necessary in order to decide whether to accept assignment of or request Contractor to terminate the subcontract, purchase order or contract; (iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions thereof, that City elects to accept by assignment and cancel, on the most favorable terms reasonably possible, all subcontracts, purchase orders or contracts, or portions thereof, that City does not elect to accept by assignment; and (v) Thereafter do only such Work as may be necessary to preserve and protect Work already in progress and to protect materials, plants, and equipment on the Project Site or in transit thereto. SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES. 17.1 Contractor’s Remedies. Contractor may terminate this Construction Contract only upon the occurrence of one of the following: 17.1.1 For Work Stoppage. The Work is stopped for sixty (60) consecutive Days, through no act or fault of Contractor, any Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to issuance of an order of a court or other public authority other than City having jurisdiction or due to an act of government, such as a declaration of a national emergency making material unavailable. This provision shall not apply to any work stoppage resulting from the City’s issuance of a suspension notice issued either for cause or for convenience. 17.1.2 For City's Non-Payment. If City does not make pay Contractor undisputed sums within ninety (90) Days after receipt of notice from Contractor, Contractor may terminate the Construction Contract (30) days following a second notice to City of Contractor’s intention to terminate the Construction Contract. 17.2 Damages to Contractor. In the event of termination for cause by Contractor, City shall pay Contractor the sums provided for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole and exclusive compensation and agrees to waive any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect and incidental damages, of any kind. SECTION 18 ACCOUNTING RECORDS. 18.1 Financial Management and City Access. Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Construction Contract in accordance with generally Invitation for Bid (IFB) Package 19 Rev. July 2012 CONSTRUCTION CONTRACT accepted accounting principles and practices. City and City's accountants during normal business hours, may inspect, audit and copy Contractor's records, books, estimates, take-offs, cost reports, ledgers, schedules, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project. Contractor shall retain these documents for a period of three (3) years after the later of (i) final payment or (ii) final resolution of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by law. 18.2 Compliance with City Requests. Contractor's compliance with any request by City pursuant to this Section 18 shall be a condition precedent to filing or maintenance of any legal action or proceeding by Contractor against City and to Contractor's right to receive further payments under the Contract Documents. City many enforce Contractor’s obligation to provide access to City of its business and other records referred to in Section 18.1 for inspection or copying by issuance of a writ or a provisional or permanent mandatory injunction by a court of competent jurisdiction based on affidavits submitted to such court, without the necessity of oral testimony. SECTION 19 INDEPENDENT PARTIES. Each party is acting in its independent capacity and not as agents, employees, partners, or joint ventures’ of the other party. City, its officers or employees shall have no control over the conduct of Contractor or its respective agents, employees, subconsultants, or subcontractors, except as herein set forth. SECTION 20 NUISANCE. Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in connection in the performance of services under this Construction Contract. SECTION 21 PERMITS AND LICENSES. Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor shall provide, procure and pay for all licenses, permits, and fees, required by the City or other government jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses for such licenses, permits, and fees shall be included in one or more Bid items. No other compensation shall be paid to the Contractor for these items or for delays caused by non-City inspectors or conditions set forth in the licenses or permits issued by other agencies. SECTION 22 WAIVER. A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. SECTION 23 GOVERNING LAW. This Construction Contract shall be construed in accordance with and governed by the laws of the State of California. Invitation for Bid (IFB) Package 20 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 24 COMPLETE AGREEMENT. This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This Agreement may be amended only by a written instrument, which is signed by the parties. SECTION 25 SURVIVAL OF CONTRACT. The provisions of the Construction Contract which by their nature survive termination of the Construction Contract or Final Completion, including, without limitation, all warranties, indemnities, payment obligations, and City’s right to audit Contractor’s books and records, shall remain in full force and effect after Final Completion or any termination of the Construction Contract. SECTION 26 PREVAILING WAGES. This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages in the performance and implementation of the Project, because the City, pursuant to its authority as a chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The City invokes the exemption from the state prevailing wage requirement for this Project and declares that the Project is funded one hundred percent (100%) by the City of Palo Alto. Or The Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations. Copies of these rates may be obtained at cost at the Purchasing office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of Sections 1775, 1776, 1777.5, 1810, and 1813 of the Labor Code. SECTION 27 NON APPROPRIATION. 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 the City does not appropriate funds for the following fiscal year for this event, 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 Construction Contract are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 28 AUTHORITY. 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. SECTION 29 ATTORNEY FEES. 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 and in any dispute described in Paragraph 14.2, Invitation for Bid (IFB) Package 21 Rev. July 2012 CONSTRUCTION CONTRACT the prevailing party in any action brought to enforce the provision of this Agreement may recover its reasonable costs and attorney’s 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 attorney’s’ fees paid to third parties. SECTION 30 COUNTERPARTS This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties, constitute a single binding agreement. SECTION 31 SEVERABILITY. In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected. IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed the date and year first above written. CITY OF PALO ALTO ____________________________ City Manager APPROVED AS TO FORM: ___________________________ Senior Asst. City Attorney PACHECO UTILITY LINE BUILDERS, INC. By:___________________________ Name:_________________________ Title:________________________ 22 Invitation for Bid (IFB) Package Rev. July 2012 CONSTRUCTION CONTRACT BID SUMMARY Invitation For Bid 155983 Title Overhead Construction Services FY 2014-2015 Date October 28, 2014 BID ITEM PAR Electrical Contractors, Inc. Pacheco Utility Line Builders, Inc. Klondyke Construction, LLC. 1‐ Foreman $ 124.60 $ 143.44 $ 155.77 2‐ Line Person $ 114.89 $ 132.22 $ 141.55 3‐ Truck Driver $ 78.29 $ 89.56 $ 113.56 4‐ Foreman OT $ 214.62 $ 222.96 $ 249.27 5‐ Line Person OT $ 196.76 $ 205.86 $ 222.46 6‐ Truck Driver OT $ 128.30 $ 140.14 $ 168.26 7‐ Line Truck $ 54.60 $ 40.60 $ 33.44 8‐ Bucket Truck (60’) $ 46.20 $ 44.69 $ 35.00 9‐ Pick‐up Truck $ 16.50 $ 13.41 $ 14.65 10‐ Cargo Trailer $ 7.30 $ 5.45 $ 7.00 11‐ Bucket Truck (35’) $ 37.60 $ 25.39 $ 27.79 4‐man crew hourly rate $ 557.27 $ 601.59 $ 642.52 2‐man crew hourly rate $ 230.78 $ 247.17 $ 282.90 4‐man crew OT hourly rate $ 861.04 $ 878.97 $ 952.54 Bid Submittal Evaluation $ 507.16 $ 544.58 $ 586.10 Formulas used for Lowest Bid Evaluation 4‐man crew hourly rate = (bid items 1) + (bid item 2)*2 + (bid item 3)+ (bid item 7)+ (bid item 8)+ (bid item 9)+ (bid item 10) 4‐man crew overtime hourly rate = (bid items 4) + (bid item 5)*2 + (bid item 6)+ (bid item 7)+ (bid item 8)+ (bid item 9)+ (bid item 10) 2‐man crew hourly rate= (bid items 2) + (bid item 3) + (bid item 11) Bid evaluation formula= (.75)(4‐man crew hourly rate) + (.20)(2‐man crew hourly rate) + (.05)(4‐man crew overtime hourly rate) PAR Electrical Contractors, Inc. deemed non‐responsive for modifying terms of IFB. Pacheco Utility Line Builders, Inc. is lowest responsive bidder. Contractor’s License Winning Contractor: Pacheco Line builders, Inc; Active C10 Contractor has active licenses that fulfill the requirements to perform the contracted work. ATTACHMENT B 1 Revised September 20, 2013 5388/so Ordinance No. XXXX ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR FISCAL YEAR 2015 IN THE ELECTRIC FUND TO PROVIDE AN APPROPRIATION OF $500,000 TO THE ELECTRIC OPERATING MAINTENANCE BUDGET FOR THE AWARD OF A CONSTRUCTION SERVICES CONTRACT TO PACHECO LINE BUILDERS, INC. FOR ELECTRIC OVERHEAD CONSTRUCTION SERVICES, OFFSET BY A REDUCTION TO THE ELECTRIC DISTRIBUTION FUND OPERATIONS RESERVE. The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. The Council of the City of Palo Alto finds and determines as follows: A. Pursuant to the provisions of Section 12 of Article III of the Charter of the City of Palo Alto, the Council on June 16, 2014 did adopt a budget for Fiscal Year 2015; and B. The Utilities Department conducts regular electric system inspection and evaluation to identify maintenance needs throughout the utility electric distribution system. This includes identifying safety hazards, regulatory infractions, and deteriorated infrastructure, such as wood poles, that need to be replaced; and C. There are currently insufficient resources within the Electric Operations Division to complete all of the identified and anticipated construction work; and D. Additional resources for electric overhead construction services are needed to assist Electric Operations with completing the back log of maintenance work necessary to keep the overhead electric distribution system in compliance with state and utility regulations, and operating in a safe, reliable, and efficient manner and to provide assistance and support to Electric Operations during emergency or storm situations; and E. In September 17, 2014 an Invitation for Bids (IFB) was posted to the City’s website and sent to eight building exchanges and twenty seven contractors for solicitation of electric overhead construction services; and F. Staff reviewed all bids submitted and recommends that the bid submitted by Pacheco Line Builders, Inc. be accepted and that Pacheco Line Builders, Inc. be declared the lowest responsible bidder; and G. One Million Dollars ($1,000,000) is needed to fund the contract for the first year; and SECTION 2. The sum of Five Hundred Thousand Dollars ($500,000) is hereby appropriated to the Electric Operating Maintenance budget to fund a portion of the contract. This increase is offset by a reduction to the Electric Distribution Fund Operations Reserve. The remaining Five Hundred Thousand Dollars ($500,000) required for the contract ATTACHMENT C 2 Revised September 20, 2013 5388/so will funded from previously appropriated funds in the Electric System Improvements CIP (EL-98003). SECTION 3. As provided in Section 2.04.330 of the Palo Alto Municipal Code, this ordinance shall become effective upon adoption. SECTION 4. The Council of the City of Palo Alto hereby finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. INTRODUCED AND PASSED: Enter Date Here AYES: NOES: ABSENT: ABSTENTIONS: NOT PARTICIPATING: ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ Senior Assistant City Attorney City Manager ____________________________ Director of Administrative Services City of Palo Alto (ID # 5364) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: 2015 Sidewalk, Curb and Gutter Repairs Project Title: Approval of a Contract With Spencon Construction, Inc. in the Amount of $1,458,610.30 for the FY 2015 Sidewalk, Curb and Gutter Repairs Project From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council: 1. Approve, and authorize the City Manager or his designee to execute, the attached contract with Spencon Construction, Inc. (Attachment A) in the amount of $1,458,610 for the FY 2015 Sidewalk, Curb and Gutter Repairs, Capital Improvement Program projects Sidewalk Repairs PO-89003 and Curb & Gutter Repairs PO-12001; and 2. Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with Spencon Construction, Inc. for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $146,000. Discussion Project Description Each year this project addresses one or two of the 23 Sidewalk Replacement Districts. The current cycle traversing the City (District by District) started in 1986. At the end of this proposed contract, three Sidewalk Replacement Districts will remain to be addressed by the ongoing program. Staff will issue a request for proposals (RFP) in the spring of 2015 to evaluate the sidewalk program and assess how future repairs will be done once the current cycle is completed. City of Palo Alto Page 2 The work to be performed under this contract is for sidewalk, curb, gutter, ramps, and asphalt pavement repairs; and Portland cement concrete and asphalt recycling. The sidewalk, curb, and gutter repair locations are shown on the attached Location Maps and Location Lists (Attachment B). The ongoing sidewalk portion of this contract will address sidewalk deficiencies in Sidewalk Replacement Districts 33, 34, and half of 32 that encompass Charleston Meadow, Monroe Park, Barron Park, and portions of College Terrace neighborhoods. The sidewalk portion also includes sidewalk repairs in the following intensive-use areas: in the University Avenue downtown area; #4000 Middlefield Road adjacent to Cubberley School; both sides of California Avenue, from El Camino Real Road to Amherst Street; both sides of El Camino Real Road, from California Avenue to southern City limits; and the construction of fifty curb ramps with detectable warning surface in compliance with the Americans with Disabilities Act (ADA). The ramps will include street names stamped on the curb ramp and a standardized detectable warning surface feature to warn visually-impaired people of potential hazards in their paths of travel. Detectable warning surfaces used in this project will consist of a surface of truncated domes aligned in a square grid pattern, and are yellow in color at yellow crosswalks and dark grey in color at all other locations. The domes are in compliance with Federal Highway Administration requirements enforcing the use of truncated domes on Federal, State and local level projects and also in accordance with Public Works Standard Drawings and Specifications. The curb and gutter portion of the project includes repairs of more than forty curb and gutter locations throughout the City that have been lifted by tree roots and have ponding problems. These curb and gutter locations are selected from a list of locations reported by the public and evaluated by Public Works staff. This project concentrates on curb and gutter repair requests that are not fixed by other projects such as the annual street maintenance overlay project. The Curb and Gutter Repair Project began in 2012 and is an ongoing project. Work in downtown areas will be stopped during lunch hours to minimize the inconvenience to restaurants, merchants and the public. In addition to sidewalk postings and flyers delivered to homes and businesses most directly impacted by the work, staff will also use other outreach methods such as Nextdoor and the City of Palo Alto Page 3 City of Palo Alto website to notify the public. In addition, staff will interface with the Palo Alto Downtown Business and Professional Association, neighborhood associations, and other organizations and businesses as appropriate. Bid Process On November 25, 2014, a notice inviting formal bids for the 2015 Sidewalk, Curb and Gutter Repairs Project was posted at City Hall, and sent to 12 builder’s exchanges and 7 contractors. The bidding period was 22 days. Bids were received from 6 qualified contractors on December 16, 2014, as listed on the attached Bid Summary (Attachment C). Summary of Bid Process Bid Name/Number FY 2015 Sidewalk, Curb & Gutter Repairs / IFB #156906 Proposed Length of Project 270 calendar days Number of Bids Mailed to Builder’s Exchanges 12 Number of Bids Mailed to Contractors 7 Total Days to Respond to Bid 22 Pre-Bid Meeting? No Number of Company Attendees at Pre-Bid Meeting NA Number of Bids Received: 6 Bid Price Range From a low of $1,458,610.30 to a high of $2,889,606.00 Bids ranged from a high of $2,889,606 to a low bid of 1,458,610.30. The low bid is 7% below the engineer’s estimate of $1,573,890, while the high bid is 84% above the engineer’s estimate. Staff has reviewed all bids and recommends that the bid of $1,458,610.30 submitted by Spencon Construction, Inc. be accepted and that Spencon Construction, Inc. be declared the lowest responsible bidder. Funding is available to award both Add Alternates in the amount of $57,980. Add Alternate #1 provides additional locations for sidewalk repair, and Add Alternate #2 City of Palo Alto Page 4 provides additional locations for curb and gutter repair. Therefore, staff is recommending including these in the contract for a total contract amount of $ 1,458,610.30. Per the instructions on the IFB, the Add Alternates were not considered in the basis for award. The contingency amount of $146,000, which equals 10 percent of the total contract, is requested for related, additional but unforeseen work which may develop during the project. Staff checked references supplied by the contractor for previous work performed and found no significant complaints. Staff also checked with the Contractor's State License Board and found that the contractor has an active license on file and has no outstanding complaints. Project Coordination The work included in this contract was coordinated with other capital projects at the monthly Utilities/Public Works Departments’ street work coordination meetings and by use of the Geographic Information System (GIS) project coordination program. The purpose of the monthly street work coordination meeting is to coordinate the installation, replacement, and repairs of City’s subsurface infrastructure (utilities) and street and sidewalk improvements with the annual street maintenance plan. The FY 2015 Sidewalk, Curb and Gutter Repairs Project has no conflicts with upcoming Public Works and Utilities projects. Resource Impact Funds for this project are included in the Capital Improvement Program (CIP) Projects: PO-89003 Sidewalk Repairs, and PO-12001 Curb & Gutter Repairs. Funding Source Contract Contingency Total Encumbrance 1 PO-89003 $1,231,512.20 $123,200 $1,354,712.20 2 PO-12001 $227,098.10 $22,800 $249,898.10 Totals $1,458,610.30 $146,000 $1,604,610.30 Environmental Review This project is categorically exempt from the California Environmental Quality Act (CEQA) under Section 15301c of the CEQA guidelines as repair, maintenance City of Palo Alto Page 5 and/or minor alteration of the existing facilities and no further environmental review is necessary. Attachments Attachment A: Contract Attachment B: Location Map & Street Lists (4 pages) Attachment C: Bid Summary Attachments: A - Construction Contract (PDF) B - Location Map & Street Lists (PDF) C - Bid Summary (PDF) Invitation for Bid (IFB) Package 1 Rev. July 2012 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT Contract No. C15156906 City of Palo Alto and Spencon Construction, Inc. PROJECT FY 2015 Sidewalk, Curb and Gutter Repairs Project Invitation for Bid (IFB) Package 2 Rev. July 2012 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT TABLE OF CONTENTS SECTION 1. INCORPORATION OF RECITALS AND DEFINITIONS……………………………….. .................... 5 1.1 Recitals ................................................................................................................ 5 1.2 Definitions ........................................................................................................... 5 SECTION 2. THE PROJECT……………………………………………………………………………… .............................. 5 SECTION 3. THE CONTRACT DOCUMENTS…………………………………………………………. ......................... 5 3.1 List of Documents …………………………………………………………………………………………. ..... 5 3.2 Order of Precedence …………………………………………………………………………… ................ 6 SECTION 4. THE WORK ………………………………………………………………………………… .............................. 7 SECTION 5. PROJECT TEAM ………………………………………………………………………….. ............................. 7 SECTION 6. TIME OF COMPLETION ………………………………………………………………….. .......................... 7 6.1 Time Is of Essence ........................................................................................ ……… 7 6.2 Commencement of Work ..................................................................................... 7 6.3 Contract Time ....................................................................................................... 7 6.4 Liquidated Damages ............................................................................................. 7 6.4.1 Entitlement……………………………………………………………………………………………. 7 6.4.2 Daily Amount…………………………………………………………………………………………. 8 6.4.3 Exclusive Remedy………………………………………………………………………………….. 8 6.4.4 Other Remedies…………………………………………………………………………………... 8 6.5 Adjustments to Contract Time ........................................................................... … 8 SECTION 7. COMPENSATION TO CONTRACTOR………………………………………………………………………... 8 7.1 Contract Sum ……………………………………………………………………………………………………… 1 7.2 Full Compensation …………………………………………………………………………………………….. 9 7.3 Compensation for Extra or Deleted Work …………………………………………………………….9 7.3.1 Self Performed Work………………………………………………………………………………… 9 7.3.2 Subcontractors…………………………………………………………………………………………. 9 SECTION 8. STANDARD OF CARE ................................................................................................... 9 SECTION 9. INDEMNIFICATION ...................................................................................................... 10 9.1 Hold Harmless…………………………………………………………………………………………………….. 10 9.2 Survival………………………………………………………………………………………………………………. 10 SECTION 10. NONDISCRIMINATION .............................................................................................. 10 SECTION 11. INSURANCE AND BONDS .......................................................................................... 10 Invitation for Bid (IFB) Package 3 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 12. PROHIBITION AGAINST TRANSFERS .......................................................................... 11 SECTION 13. NOTICES .................................................................................................................... 11 13.1 Method of Notice ………………………………………………………………………………………………..11 13.2 Notice Recipients ................................................................................................. 11 13.3 Change of Address ............................................................................................... 12 14.1 Resolution of Contract Disputes ........................................................................... 12 14.2 Resolution of Other Disputes ............................................................................... 12 14.2.1 Non‐Contract Disputes ……………………………………………………………………………….12 14.2.2 Litigation, City Election ……………………………………………………...........................13 14.3 Submission of Contract Dispute …………………………………………………………………………..13 14.3.1 By Contractor …………………………………………………………………………………………. 13 14.3.2 By City ……………………………………………………………………………………………………. 13 14.4 Contract Dispute Resolution Process ............................................................... …… 13 14.4.1 Direct Negotiation………………………………………………………………………… ………….13 14.4.2 Deferral of Contract Disputes ………………………………………………………………… 14 14.4.3 Mediation ………………………………………………………………………………………………….14 14.4.4 Binding Arbitration ……………………………………………………………………………………15 14.5 Non‐Waiver …………………………………………………………………………………………………………16 SECTION 15. DEFAULT ................................................................................................................... 16 15.1 Notice of Default .................................................................................................. 16 15.2 Opportunity to Cure Default ................................................................................ 16 SECTION 16. CITY'S RIGHTS AND REMEDIES .................................................................................. 16 16.1 Remedies Upon Default ....................................................................................... 16 16.1.1 Delete Certain Servic………………………………………………………...........................16 16.1.2 Perform and Withhold ……………………………………………………………………………. 16 16.1.3 Suspend The Construction Contract ………………………………………………………….16 16.1.4 Terminate the Construction Contract for Default ……………………………………..17 16.1.5 Invoke the Performance Bond ………………………………………………………………….17 16.1.6 Additional Provisions ……………………………………………………………………………….17 16.2 Delays by Sureties ................................................................................................ 17 16.3 Damages to City ................................................................................................... 17 16.3.1 For Contractor's Default …………………………………………………………………………..17 16.3.2 Compensation for Losses ………………………………………………………………………….17 16.5 Suspension by City for Convenience ..................................................................... 18 16.6 Termination Without Cause ................................................................................. 18 Invitation for Bid (IFB) Package 4 Rev. July 2012 CONSTRUCTION CONTRACT 16.6.1 Compensation ………………………………………………………………………………………….18 16.6.2 Subcontractors …………………………………………………………………………………………18 16.7 Contractor’s Duties Upon Termination ................................................................. 19 SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES ................................................................... 19 17.1 Contractor’s Remedies ......................................................................................... 19 17.1.1 For Work Stoppage ………………………………………………………………………………….. 19 17.1.2 For City's Non‐Payment …………………………………………………………………………… 19 17.2 Damages to Contractor ........................................................................................ 19 SECTION 18. ACCOUNTING RECORDS ............................................................................................ 19 18.1 Financial Management and City Access .......................................................... ……. 19 18.2 Compliance with City Requests ........................................................................ …. 20 SECTION 19. INDEPENDENT PARTIES ............................................................................................. 20 SECTION 20. NUISANCE ................................................................................................................. 20 SECTION 21. PERMITS AND LICENSES ............................................................................................ 20 SECTION 22. WAIVER .................................................................................................................... 20 SECTION 23. GOVERNING LAW ..................................................................................................... 20 SECTION 24. COMPLETE AGREEMENT ........................................................................................... 21 SECTION 25. SURVIVAL OF CONTRACT .......................................................................................... 21 SECTION 26. PREVAILING WAGES .................................................................................................. 21 SECTION 27. NON APPROPRIATION .............................................................................................. 21 SECTION 28. GOVERNMENTAL POWERS ........................................................................................ 21 SECTION 29. ATTORNEY FEES ........................................................................................................ 21 SECTION 30. COUNTERPARTS ........................................................................................................ 22 SECTION 31. SEVERABILITY ........................................................................................................... 22 Invitation for Bid (IFB) Package 5 Rev. July 2012 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT entered into on January 12, 2015 (“Execution Date”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and ISPENCON CONSTRUCTION, INC. ("Contractor"), is made with reference to the following: R E C I T A L S: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Contractor is a California Corporation duly organized and in good standing in the State of California, Contractor’s License Number 820205. Contractor represents that it is duly licensed by the State of California and has the background, knowledge, experience and expertise to perform the obligations set forth in this Construction Contract. C. On November 25, 2014, City issued an Invitation for Bids (IFB) to contractors for the FY 2015 Sidewalk, Curb And Gutter Repairs (“Project”). In response to the IFB, Contractor submitted a bid. D. City and Contractor desire to enter into this Construction Contract for the Project, and other services as identified in the Bid Documents for the Project upon the following terms and conditions. NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the undersigned parties as follows: SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS. 1.1 Recitals. All of the recitals are incorporated herein by reference. 1.2 Definitions. Capitalized terms shall have the meanings set forth in this Construction Contract and/or in the General Conditions. If there is a conflict between the definitions in this Construction Contract and in the General Conditions, the definitions in this Construction Contract shall prevail. SECTION 2 THE PROJECT. The Project is the construction of the FY 2015 Sidewalk, Curb and Gutter Repairs ("Project"). SECTION 3 THE CONTRACT DOCUMENTS. 3.1 List of Documents. The Contract Documents (sometimes collectively referred to as “Agreement” or “Bid Documents”) consist of the following documents which are on file with the Purchasing Division and are hereby incorporated by reference. 1) Change Orders 2) Field Change Orders Invitation for Bid (IFB) Package 6 Rev. July 2012 CONSTRUCTION CONTRACT 3) Contract 4) Project Plans and Drawings 5) Technical Specifications 6) Special Provisions 7) Notice Inviting Bids 8) Instructions to Bidders 9) General Conditions 10) Bidding Addenda 11) Invitation for Bids 12) Contractor's Bid/Non‐Collusion Affidavit 13) Reports listed in the Bidding Documents 14) Public Works Department’s Standard Drawings and Specifications dated 2007 and updated from time to time 15) Utilities Department’s Water, Gas, Wastewater, Electric Utilities Standards dated 2005 and updated from time to time 16) City of Palo Alto Traffic Control Requirements 17) City of Palo Alto Truck Route Map and Regulations 18) Notice Inviting Pre‐Qualification Statements, Pre‐Qualification Statement, and Pre‐ Qualification Checklist (if applicable) 19) Performance and Payment Bonds 20) Insurance Forms 3.2 Order of Precedence. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in the preceding section. If a claimed inconsistency cannot be resolved through the order of precedence, the City shall have the sole power to decide which document or provision shall govern as may be in the best interests of the City. Invitation for Bid (IFB) Package 7 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 4 THE WORK. The Work includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all other things necessary for Contractor to perform its obligations and complete the Project, including, without limitation, any Changes approved by City, in accordance with the Contract Documents and all Applicable Code Requirements. SECTION 5 PROJECT TEAM. In addition to Contractor, City has retained, or may retain, consultants and contractors to provide professional and technical consultation for the design and construction of the Project. The Project requires that Contractor operate efficiently, effectively and cooperatively with City as well as all other members of the Project Team and other contractors retained by City to construct other portions of the Project. SECTION 6 TIME OF COMPLETION. 6.1 Time Is of Essence. Time is of the essence with respect to all time limits set forth in the Contract Documents. 6.2 Commencement of Work. Contractor shall commence the Work on the date specified in City’s Notice to Proceed. 6.3 Contract Time. Work hereunder shall begin on the date specified on the City’s Notice to Proceed and shall be completed not later than . within Two Hundred Seventy calendar days (270) after the commencement date specified in City’s Notice to Proceed. 6.4 Liquidated Damages. 6.4.1 Entitlement. City and Contractor acknowledge and agree that if Contractor fails to fully and satisfactorily complete the Work within the Contract Time, City will suffer, as a result of Contractor’s failure, substantial damages which are both extremely difficult and impracticable to ascertain. Such damages may include, but are not limited to: (i) Loss of public confidence in City and its contractors and consultants. (ii) Loss of public use of public facilities. (iii) Extended disruption to public. Invitation for Bid (IFB) Package 8 Rev. July 2012 CONSTRUCTION CONTRACT 6.4.2 Daily Amount. City and Contractor have reasonably endeavored, but failed, to ascertain the actual damage that City will incur if Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time. Therefore, the parties agree that in addition to all other damages to which City may be entitled other than delay damages, in the event Contractor shall fail to achieve Substantial Completion of the entire Work within the Contract Time, Contractor shall pay City as liquidated damages the amount of $500 per day for each Day occurring after the expiration of the Contract Time until Contractor achieves Substantial Completion of the entire Work. The liquidated damages amount is not a penalty but considered to be a reasonable estimate of the amount of damages City will suffer by delay in completion of the Work. 6.4.3 Exclusive Remedy. City and Contractor acknowledge and agree that this liquidated damages provision shall be City’s only remedy for delay damages caused by Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.4.4 Other Remedies. City is entitled to any and all available legal and equitable remedies City may have where City’s Losses are caused by any reason other than Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.5 Adjustments to Contract Time. The Contract Time may only be adjusted for time extensions approved by City and agreed to by Change Order executed by City and Contractor in accordance with the requirements of the Contract Documents. SECTION 7 COMPENSATION TO CONTRACTOR. Invitation for Bid (IFB) Package 1 Rev. July 2012 CONSTRUCTION CONTRACT 7.1 Contract Sum. Contractor shall be compensated for satisfactory completion of the Work in compliance with the Contract Documents the Contract Sum of One Million Four Hundred Fifty Eight Thousand Six Hundred Ten & Thirty Cents Dollars ($1,458,610.30). [This amount includes the Base Bid and Add Alternates 1 and 2 that added $57,980 to the Base Bids.] / / / / Invitation for Bid (IFB) Package 9 Rev. July 2012 CONSTRUCTION CONTRACT 7.2 Full Compensation. The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor and, except as otherwise expressly permitted by the terms of the Contract Documents, shall cover all Losses arising out of the nature of the Work or from the acts of the elements or any unforeseen difficulties or obstructions which may arise or be encountered in performance of the Work until its Acceptance by City, all risks connected with the Work, and any and all expenses incurred due to suspension or discontinuance of the Work. The Contract Sum may only be adjusted for Change Orders issued, executed and satisfactorily performed in accordance with the requirements of the Contract Documents. 7.3 Compensation for Extra or Deleted Work. The Contract Sum shall be adjusted (either by addition or credit) for Changes in the Work involving Extra Work or Deleted Work based on one or more of the following methods to be selected by City: 1. Unit prices stated in the Contract Documents or agreed upon by City and Contractor, which unit prices shall be deemed to include Contractor Markup and Subcontractor/Sub‐subcontractor Markups permitted by this Section. 2. A lump sum agreed upon by City and Contractor, based on the estimated Allowable Costs and Contractor Markup and Subcontractor Markup computed in accordance with this Section. 3. Contractor’s Allowable Costs, plus Contractor Markup and Subcontractor Markups applicable to such Extra Work computed in accordance with this Section. Contractor Markup and Subcontractor/Sub‐subcontractor Markups set forth herein are the full amount of compensation to be added for Extra Work or to be subtracted for Deleted Work that is attributable to overhead (direct and indirect) and profit of Contractor and of its Subcontractors and Sub‐subcontractors, of every Tier. When using this payment methodology, Contractor Markup and Subcontractor/Sub‐subcontractor Markups, which shall not be compounded, shall be computed as follows: 7.3.1 Markup Self‐Performed Work. 10% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be performed by Contractor with its own forces. 7.3.2 Markup for Work Performed by Subcontractors. 15% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be performed by a first Tier Subcontractor. SECTION 8 STANDARD OF CARE. Contractor agrees that the Work shall be performed by qualified, experienced and well‐supervised personnel. All services performed in connection with this Construction Contract shall be performed in a manner consistent with the standard of care under California law applicable to those who specialize in providing such services for projects of the type, scope and complexity of the Project. Invitation for Bid (IFB) Package 10 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 9 INDEMNIFICATION. 9.1 Hold Harmless. To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to City, from and against any and all Losses arising directly or indirectly from, or in any manner relating to any of, the following: (i) Performance or nonperformance of the Work by Contractor or its Subcontractors or Sub‐ subcontractors, of any tier; (ii) Performance or nonperformance by Contractor or its Subcontractors or Sub‐ subcontractors of any tier, of any of the obligations under the Contract Documents; (iii) The construction activities of Contractor or its Subcontractors or Sub‐subcontractors, of any tier, either on the Site or on other properties; (iv) The payment or nonpayment by Contractor to any of its employees, Subcontractors or Sub‐subcontractors of any tier, for Work performed on or off the Site for the Project; and (v) Any personal injury, property damage or economic loss to third persons associated with the performance or nonperformance by Contractor or its Subcontractors or Sub‐ subcontractors of any tier, of the Work. However, nothing herein shall obligate Contractor to indemnify any Indemnitee for Losses resulting from the sole or active negligence or willful misconduct of the Indemnitee. Contractor shall pay City for any costs City incurs to enforce this provision. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 9.2 Survival. The provisions of Section 9 shall survive the termination of this Construction Contract. SECTION 10 NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. Contractor acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and will comply with all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 11 INSURANCE AND BONDS. On or before the Execution Date, Contractor shall provide City with evidence that it has obtained insurance and Performance and Payment Bonds satisfying all requirements in Article 11 of the General Conditions. Failure to do so shall be deemed a material breach of this Construction Contract. Invitation for Bid (IFB) Package 11 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 12 PROHIBITION AGAINST TRANSFERS. City is entering into this Construction Contract based upon the stated experience and qualifications of the Contractor and its subcontractors set forth in Contractor’s Bid. Accordingly, Contractor shall not assign, hypothecate or transfer this Construction Contract or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or transfer without said consent shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor or of any general partner or joint venturer or syndicate member of Contractor, if the Contractor is a partnership or joint venture or syndicate or co‐tenancy shall result in changing the control of Contractor, shall be construed as an assignment of this Construction Contract. Control means more than fifty percent (50%) of the voting power of the corporation or other entity. SECTION 13 NOTICES. 13.1 Method of Notice. All notices, demands, requests or approvals to be given under this Construction Contract shall be given in writing and shall be deemed served on the earlier of the following: (i) On the date delivered if delivered personally; (ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and addressed as hereinafter provided; (iii) On the date sent if sent by facsimile transmission; (iv) On the date sent if delivered by electronic mail; or (v) On the date it is accepted or rejected if sent by certified mail. 13.2 Notice Recipients. All notices, demands or requests (including, without limitation, Claims) from Contractor to City shall include the Project name and the number of this Construction Contract and shall be addressed to City at: To City: City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Copy to: City of Palo Alto Public Works Administration 250 Hamilton Avenue Palo Alto, CA 94301 Attn: Holly Boyd Or Invitation for Bid (IFB) Package 12 Rev. July 2012 CONSTRUCTION CONTRACT City of Palo Alto Utilities Engineering 250 Hamilton Avenue Palo Alto, CA 94301 Attn: In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following: Palo Alto City Attorney’s Office 250 Hamilton Avenue P.O. Box 10250 Palo Alto, California 94303 All Claims shall be delivered personally or sent by certified mail. All notices, demands, requests or approvals from City to Contractor shall be addressed to: Spencon Construction, Inc. P.O. Box 1220 Danville, CA 94526 Attn: Steve Stahl 13.3 Change of Address. In the event of any change of address, the moving party shall notify the other party of the change of address in writing. Each party may, by written notice only, add, delete or replace any individuals to whom and addresses to which notice shall be provided. SECTION 14 DISPUTE RESOLUTION. 14.1 Resolution of Contract Disputes. Contract Disputes shall be resolved by the parties in accordance with the provisions of this Section 14, in lieu of any and all rights under the law that either party have its rights adjudged by a trial court or jury. All Contract Disputes shall be subject to the Contract Dispute Resolution Process set forth in this Section 14, which shall be the exclusive recourse of Contractor and City for such Contract Disputes. 14.2 Resolution of Other Disputes. 14.2.1 Non‐Contract Disputes. Contract Disputes shall not include any of the following: (i) Penalties or forfeitures prescribed by statute or regulation imposed by a governmental agency; (ii) Third party tort claims for personal injury, property damage or death relating to any Work performed by Contractor or its Subcontractors or Sub‐subcontractors of any tier; (iii) False claims liability under California Government Code Section 12650, et. seq.; (iv) Defects in the Work first discovered by City after Final Payment by City to Contractor; (v) Stop notices; or (vi) The right of City to specific performance or injunctive relief to compel performance of any provision of the Contract Documents. Invitation for Bid (IFB) Package 13 Rev. July 2012 CONSTRUCTION CONTRACT 14.2.2 Litigation, City Election. Matters that do not constitute Contract Disputes shall be resolved by way of an action filed in the Superior Court of the State of California, County of Santa Clara, and shall not be subject to the Contract Dispute Resolution Process. However, the City reserves the right, in its sole and absolute discretion, to treat such disputes as Contract Disputes. Upon written notice by City of its election as provided in the preceding sentence, such dispute shall be submitted by the parties and finally decided pursuant to the Contract Dispute Resolution Process in the manner as required for Contract Disputes, including, without limitation, City’s right under Paragraph 14.4.2 to defer resolution and final determination until after Final Completion of the Work. 14.3 Submission of Contract Dispute. 14.3.1 By Contractor. Contractors may commence the Contract Dispute Resolution Process upon City's written response denying all or part of a Claim pursuant to Paragraph 4.2.9 or 4.2.10 of the General Conditions. Contractor shall submit a written Statement of Contract Dispute (as set forth below) to City within seven (7) Days after City rejects all or a portion of Contractor's Claim. Failure by Contractor to submit its Statement of Contract Dispute in a timely manner shall result in City’s decision by City on the Claim becoming final and binding. Contractor’s Statement of Contract Dispute shall be signed under penalty of perjury and shall state with specificity the events or circumstances giving rise to the Contract Dispute, the dates of their occurrence and the asserted effect on the Contract Sum and the Contract Time. The Statement of Contract Dispute shall include adequate supporting data to substantiate the disputed Claim. Adequate supporting data for a Contract Dispute relating to an adjustment of the Contract Time shall include both of the following: (i) All of the scheduling data required to be submitted by Contractor under the Contract Documents to obtain extensions of time and adjustments to the Contract Time and (ii) A detailed, event‐by‐event description of the impact of each event on completion of Work. Adequate data to support a Statement of Contract Dispute involving an adjustment of the Contract Sum must include both of the following: (a) A detailed cost breakdown and (b) Supporting cost data in such form and including such information and other supporting data as required under the Contract Documents for submission of Change Order Requests and Claims. 14.3.2 By City. City's right to commence the Contract Dispute Resolution Process shall arise at any time following City's actual discovery of the circumstances giving rise to the Contract Dispute. City asserts Contract Disputes in response to a Contract Dispute asserted by Contractor. A Statement of Contract Dispute submitted by City shall state the events or circumstances giving rise to the Contract Dispute, the dates of their occurrence and the damages or other relief claimed by City as a result of such events. 14.4 Contract Dispute Resolution Process. The parties shall utilize each of the following steps in the Contract Dispute Resolution Process in the sequence they appear below. Each party shall participate fully and in good faith in each step in the Contract Dispute Resolution Process, and good faith effort shall be a condition precedent to the right of each party to proceed to the next step in the process. 14.4.1 Direct Negotiations. Designated representatives of City and Contractor shall meet as soon as possible (but not later than ten (10) Days after receipt of the Statement of Contract Dispute) in a good Invitation for Bid (IFB) Package 14 Rev. July 2012 CONSTRUCTION CONTRACT faith effort to negotiate a resolution to the Contract Dispute. Each party shall be represented in such negotiations by an authorized representative with full knowledge of the details of the Claims or defenses being asserted by such party in the negotiations, and with full authority to resolve such Contract Dispute then and there, subject only to City’s obligation to obtain administrative and/or City Council approval of any agreed settlement or resolution. If the Contract Dispute involves the assertion of a right or claim by a Subcontractor or Sub‐subcontractor, of any tier, against Contractor that is in turn being asserted by Contractor against City (“Pass‐Through Claim”), then the Subcontractor or Sub‐Subcontractor shall also have a representative attend the negotiations, with the same authority and knowledge as described above. Upon completion of the meeting, if the Contract Dispute is not resolved, the parties may either continue the negotiations or any party may declare negotiations ended. All discussions that occur during such negotiations and all documents prepared solely for the purpose of such negotiations shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. 14.4.2 Deferral of Contract Disputes. Following the completion of the negotiations required by Paragraph 14.4.1, all unresolved Contract Disputes shall be deferred pending Final Completion of the Project, subject to City’s right, in its sole and absolute discretion, to require that the Contract Dispute Resolution Process proceed prior to Final Completion. All Contract Disputes that have been deferred until Final Completion shall be consolidated within a reasonable time after Final Completion and thereafter pursued to resolution pursuant to this Contract Dispute Resolution Process. The parties can continue informal negotiations of Contract Disputes; provided, however, that such informal negotiations shall not be alter the provisions of the Agreement deferring final determination and resolution of unresolved Contract Disputes until after Final Completion. 14.4.3 Mediation. If the Contract Dispute remains unresolved after negotiations pursuant to Paragraph 14.4.1, the parties shall submit the Contract Dispute to non‐binding mediation before a mutually acceptable third party mediator. .1 Qualifications of Mediator. The parties shall endeavor to select a mediator who is a retired judge or an attorney with at least five (5) years of experience in public works construction contract law and in mediating public works construction disputes. In addition, the mediator shall have at least twenty (20) hours of formal training in mediation skills. .2 Submission to Mediation and Selection of Mediator. The party initiating mediation of a Contract Dispute shall provide written notice to the other party of its decision to mediate. In the event the parties are unable to agree upon a mediator within fifteen (15) Days after the receipt of such written notice, then the parties shall submit the matter to the American Arbitration Association (AAA) at its San Francisco Regional Office for selection of a mediator in accordance with the AAA Construction Industry Mediation Rules. .3 Mediation Process. The location of the mediation shall be at the offices of City. The costs of mediation shall be shared equally by both parties. The mediator shall provide an independent assessment on the merits of the Contract Dispute and recommendations for resolution. All discussions that occur during the mediation and all documents prepared solely for the purpose of the mediation shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. Invitation for Bid (IFB) Package 15 Rev. July 2012 CONSTRUCTION CONTRACT 14.4.4 Binding Arbitration. If the Contract Dispute is not resolved by mediation, then any party may submit the Contract Dispute for final and binding arbitration pursuant to the provisions of California Public Contract Code Sections 10240, et seq. The award of the arbitrator therein shall be final and may be entered as a judgment by any court of competent jurisdiction. Such arbitration shall be conducted in accordance with the following: .1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint in arbitration in accordance with the regulations promulgated pursuant to California Public Contract Code Section 10240.5. .2 Qualifications of the Arbitrator. The arbitrator shall be approved by all parties. The arbitrator shall be a retired judge or an attorney with at least five (5) years of experience in public works construction contract law and in arbitrating public works construction disputes. In addition, the arbitrator shall have at least twenty (20) hours of formal training in arbitration skills. In the event the parties cannot agree upon an arbitrator, the provisions of California Public Contract Code Section 10240.3 shall be followed in selecting an arbitrator possessing the qualifications required herein. .3 Hearing Days and Location. Arbitration hearings shall be held at the offices of City and shall, except for good cause shown to and determined by the arbitrator, be conducted on consecutive business days, without interruption or continuance. .4 Hearing Delays. Arbitration hearings shall not be delayed except upon good cause shown. .5 Recording Hearings. All hearings to receive evidence shall be recorded by a certified stenographic reporter, with the costs thereof borne equally by City and Contractor and allocated by the arbitrator in the final award. .6 Limitation of Depositions. The parties may conduct discovery in accordance with the provisions of section 10240.11 of the Public Contract Code; provided, however, that depositions shall be limited to both of the following: (i) Ten (10) percipient witnesses for each party and 5 expert witnesses per party. Upon a showing of good cause, the arbitrator may increase the number of permitted depositions. An individual who is both percipient and expert shall, for purposes of applying the foregoing numerical limitation only, be deemed an expert. Expert reports shall be exchanged prior to receipt of evidence, in accordance with the direction of the arbitrator, and expert reports (including initial and rebuttal reports) not so submitted shall not be admissible as evidence. .7 Authority of the Arbitrator. The arbitrator shall have the authority to hear dispositive motions and issue interim orders and interim or executory awards. Invitation for Bid (IFB) Package 16 Rev. July 2012 CONSTRUCTION CONTRACT .8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to a jury trial with respect to any Contract Dispute that is subject to binding arbitration in accordance with the provisions of this Paragraph 14.4.4. Contractor shall include this provision in its contracts with its Subcontractors who provide any portion of the Work. 14.5 Non‐Waiver. Participation in the Contract Dispute Resolution Process shall not waive, release or compromise any defense of City, including, without limitation, any defense based on the assertion that the rights or Claims of Contractor that are the basis of a Contract Dispute were previously waived by Contractor due to Contractor’s failure to comply with the Contract Documents, including, without limitation, Contractor’s failure to comply with any time periods for providing notice of requests for adjustments of the Contract Sum or Contract Time or for submission of Claims or supporting documentation of Claims. SECTION 15 DEFAULT. 15.1 Notice of Default. In the event that City determines, in its sole discretion, that Contractor has failed or refused to perform any of the obligations set forth in the Contract Documents, or is in breach of any provision of the Contract Documents, City may give written notice of default to Contractor in the manner specified for the giving of notices in the Construction Contract. 15.2 Opportunity to Cure Default. Except for emergencies, Contractor shall cure any default in performance of its obligations under the Contract Documents within two (2) Days (or such shorter time as City may reasonably require) after receipt of written notice. However, if the breach cannot be reasonably cured within such time, Contractor will commence to cure the breach within two (2) Days (or such shorter time as City may reasonably require) and will diligently and continuously prosecute such cure to completion within a reasonable time, which shall in no event be later than ten (10) Days after receipt of such written notice. SECTION 16 CITY'S RIGHTS AND REMEDIES. 16.1 Remedies Upon Default. If Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section 15, then City may pursue any remedies available under law or equity, including, without limitation, the following: 16.1.1 Delete Certain Services. City may, without terminating the Construction Contract, delete certain portions of the Work, reserving to itself all rights to Losses related thereto. 16.1.2 Perform and Withhold. City may, without terminating the Construction Contract, engage others to perform the Work or portion of the Work that has not been adequately performed by Contractor and withhold the cost thereof to City from future payments to Contractor, reserving to itself all rights to Losses related thereto. 16.1.3 Suspend The Construction Contract. City may, without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, suspend all or any portion of this Construction Contract for as long a period of time as City determines, in its sole discretion, appropriate, in which event City shall have no Invitation for Bid (IFB) Package 17 Rev. July 2012 CONSTRUCTION CONTRACT obligation to adjust the Contract Sum or Contract Time, and shall have no liability to Contractor for damages if City directs Contractor to resume Work. 16.1.4 Terminate the Construction Contract for Default. City shall have the right to terminate this Construction Contract, in whole or in part, upon the failure of Contractor to promptly cure any default as required by Section 15. City’s election to terminate the Construction Contract for default shall be communicated by giving Contractor a written notice of termination in the manner specified for the giving of notices in the Construction Contract. Any notice of termination given to Contractor by City shall be effective immediately, unless otherwise provided therein. 16.1.5 Invoke the Performance Bond. City may, with or without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, exercise its rights under the Performance Bond. 16.1.6 Additional Provisions. All of City’s rights and remedies under this Construction Contract are cumulative, and shall be in addition to those rights and remedies available in law or in equity. Designation in the Contract Documents of certain breaches as material shall not waive the City’s authority to designate other breaches as material nor limit City’s right to terminate the Construction Contract, or prevent the City from terminating the Agreement for breaches that are not material. City’s determination of whether there has been noncompliance with the Construction Contract so as to warrant exercise by City of its rights and remedies for default under the Construction Contract, shall be binding on all parties. No termination or action taken by City after such termination shall prejudice any other rights or remedies of City provided by law or equity or by the Contract Documents upon such termination; and City may proceed against Contractor to recover all liquidated damages and Losses suffered by City. 16.2 Delays by Sureties. Without limiting to any of City’s other rights or remedies, City has the right to suspend the performance of the Work by Contractor’s sureties in the event of any of the following: (i) The sureties’ failure to begin Work within a reasonable time in such manner as to insure full compliance with the Construction Contract within the Contract Time; (ii) The sureties’ abandonment of the Work; (iii) If at any time City is of the opinion the sureties’ Work is unnecessarily or unreasonably delaying the Work; (iv) The sureties’ violation of any terms of the Construction Contract; (v) The sureties’ failure to perform according to the Contract Documents; or (vi) The sureties’ failure to follow City’s instructions for completion of the Work within the Contract Time. 16.3 Damages to City. 16.3.1 For Contractor's Default. City will be entitled to recovery of all Losses under law or equity in the event of Contractor’s default under the Contract Documents. 16.3.2 Compensation for Losses. In the event that City's Losses arise from Contractor’s default under the Contract Documents, City shall be entitled to withhold monies otherwise payable to Contractor until Final Completion of the Project. If City incurs Losses due to Contractor’s default, then the amount of Losses shall be deducted from the amounts withheld. Should the amount withheld exceed the amount deducted, the balance will be paid to Contractor or its designee upon Final Completion of the Project. If the Losses incurred by City exceed the amount withheld, Contractor shall be liable to City for the difference and shall promptly remit same to City. Invitation for Bid (IFB) Package 18 Rev. July 2012 CONSTRUCTION CONTRACT 16.4 Suspension by City for Convenience. City may, at any time and from time to time, without cause, order Contractor, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified as a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City’s expense, comply with the order and take all reasonable steps to minimize costs allocable to the Work covered by the Suspension Order. During the Suspension or extension of the Suspension, if any, City shall either cancel the Suspension Order or, by Change Order, delete the Work covered by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume and continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. A Suspension Order shall not be the exclusive method for City to stop the Work. 16.5 Termination Without Cause. City may, at its sole discretion and without cause, terminate this Construction Contract in part or in whole by giving thirty (30) Days written notice to Contractor. The compensation allowed under this Paragraph 16.5 shall be the Contractor’s sole and exclusive compensation for such termination and Contractor waives any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect or incidental damages of any kind resulting from termination without cause. 16.5.1 Compensation. Following such termination and within forty‐five (45) Days after receipt of a billing from Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pay the following to Contractor as Contractor’s sole compensation for performance of the Work : .1 For Work Performed. The amount of the Contract Sum allocable to the portion of the Work properly performed by Contractor as of the date of termination, less sums previously paid to Contractor. .2 For Close‐out Costs. Reasonable costs of Contractor and its Subcontractors and Sub‐subcontractors for: (i) Demobilizing and (ii) Administering the close‐out of its participation in the Project (including, without limitation, all billing and accounting functions, not including attorney or expert fees) for a period of no longer than thirty (30) Days after receipt of the notice of termination. .3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site which were fabricated for subsequent incorporation in the Work. 16.5.2 Subcontractors. Contractor shall include provisions in all of its subcontracts, purchase orders and other contracts permitting termination for convenience by Contractor on terms that are consistent with this Construction Contract and that afford no greater rights of recovery against Contractor than are afforded to Contractor against City under this Section. Invitation for Bid (IFB) Package 19 Rev. July 2012 CONSTRUCTION CONTRACT 16.6 Contractor’s Duties Upon Termination. Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the notice directs otherwise, do the following: (i) Immediately discontinue the Work to the extent specified in the notice; (ii) Place no further orders or subcontracts for materials, equipment, services or facilities, except as may be necessary for completion of such portion of the Work that is not discontinued; (iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of the notice of termination, of all subcontracts, purchase orders and contracts that are outstanding, including, without limitation, the terms of the original price, any changes, payments, balance owing, the status of the portion of the Work covered and a copy of the subcontract, purchase order or contract and any written changes, amendments or modifications thereto, together with such other information as City may determine necessary in order to decide whether to accept assignment of or request Contractor to terminate the subcontract, purchase order or contract; (iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions thereof, that City elects to accept by assignment and cancel, on the most favorable terms reasonably possible, all subcontracts, purchase orders or contracts, or portions thereof, that City does not elect to accept by assignment; and (v) Thereafter do only such Work as may be necessary to preserve and protect Work already in progress and to protect materials, plants, and equipment on the Project Site or in transit thereto. SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES. 17.1 Contractor’s Remedies. Contractor may terminate this Construction Contract only upon the occurrence of one of the following: 17.1.1 For Work Stoppage. The Work is stopped for sixty (60) consecutive Days, through no act or fault of Contractor, any Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to issuance of an order of a court or other public authority other than City having jurisdiction or due to an act of government, such as a declaration of a national emergency making material unavailable. This provision shall not apply to any work stoppage resulting from the City’s issuance of a suspension notice issued either for cause or for convenience. 17.1.2 For City's Non‐Payment. If City does not make pay Contractor undisputed sums within ninety (90) Days after receipt of notice from Contractor, Contractor may terminate the Construction Contract (30) days following a second notice to City of Contractor’s intention to terminate the Construction Contract. 17.2 Damages to Contractor. In the event of termination for cause by Contractor, City shall pay Contractor the sums provided for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole and exclusive compensation and agrees to waive any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect and incidental damages, of any kind. SECTION 18 ACCOUNTING RECORDS. 18.1 Financial Management and City Access. Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Construction Contract in accordance with generally Invitation for Bid (IFB) Package 20 Rev. July 2012 CONSTRUCTION CONTRACT accepted accounting principles and practices. City and City's accountants during normal business hours, may inspect, audit and copy Contractor's records, books, estimates, take‐offs, cost reports, ledgers, schedules, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project. Contractor shall retain these documents for a period of three (3) years after the later of (i) final payment or (ii) final resolution of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by law. 18.2 Compliance with City Requests. Contractor's compliance with any request by City pursuant to this Section 18 shall be a condition precedent to filing or maintenance of any legal action or proceeding by Contractor against City and to Contractor's right to receive further payments under the Contract Documents. City many enforce Contractor’s obligation to provide access to City of its business and other records referred to in Section 18.1 for inspection or copying by issuance of a writ or a provisional or permanent mandatory injunction by a court of competent jurisdiction based on affidavits submitted to such court, without the necessity of oral testimony. SECTION 19 INDEPENDENT PARTIES. Each party is acting in its independent capacity and not as agents, employees, partners, or joint ventures’ of the other party. City, its officers or employees shall have no control over the conduct of Contractor or its respective agents, employees, subconsultants, or subcontractors, except as herein set forth. SECTION 20 NUISANCE. Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in connection in the performance of services under this Construction Contract. SECTION 21 PERMITS AND LICENSES. Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor shall provide, procure and pay for all licenses, permits, and fees, required by the City or other government jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses for such licenses, permits, and fees shall be included in one or more Bid items. No other compensation shall be paid to the Contractor for these items or for delays caused by non‐City inspectors or conditions set forth in the licenses or permits issued by other agencies. SECTION 22 WAIVER. A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. SECTION 23 GOVERNING LAW. This Construction Contract shall be construed in accordance with and governed by the laws of the State of California. Invitation for Bid (IFB) Package 21 Rev. July 2012 CONSTRUCTION CONTRACT SECTION 24 COMPLETE AGREEMENT. This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This Agreement may be amended only by a written instrument, which is signed by the parties. SECTION 25 SURVIVAL OF CONTRACT. The provisions of the Construction Contract which by their nature survive termination of the Construction Contract or Final Completion, including, without limitation, all warranties, indemnities, payment obligations, and City’s right to audit Contractor’s books and records, shall remain in full force and effect after Final Completion or any termination of the Construction Contract. SECTION 26 PREVAILING WAGES. This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages in the performance and implementation of the Project, because the City, pursuant to its authority as a chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The City invokes the exemption from the state prevailing wage requirement for this Project and declares that the Project is funded one hundred percent (100%) by the City of Palo Alto. Or The Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations. Copies of these rates may be obtained at cost at the Purchasing office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of Sections 1775, 1776, 1777.5, 1810, and 1813 of the Labor Code. SECTION 27 NON APPROPRIATION. 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 the City does not appropriate funds for the following fiscal year for this event, 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 Construction Contract are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 28 AUTHORITY. 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. SECTION 29 ATTORNEY FEES. 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 and in any dispute described in Paragraph 14.2, 22 Invitation for Bid (IFB) Package Rev. July 2012 CONSTRUCTION CONTRACT the prevailing party in any action brought to enforce the provision of this Agreement may recover its reasonable costs and attorney’s 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 attorney’s’ fees paid to third parties. SECTION 30 COUNTERPARTS This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties, constitute a single binding agreement. SECTION 31 SEVERABILITY. In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected. IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed the date and year first above written. CITY OF PALO ALTO ____________________________ Purchasing Manager City Manager APPROVED AS TO FORM: ___________________________ Senior Asst. City Attorney APPROVED: ___________________________ Public Works Director CONTRACTOR SPENCON CONSTRUCTION, INC. By:___________________________ Name:_________________________ Title:________________________ ATTACHMENT B FY 2015 Sidewalk, Curb, & Gutter Repairs Project STREET LISTS 1 (Sidewalk Repair List) Street From To DOWNTOWN Addison Avenue (north) Waverley St Scott Street Birch Street (west) Stanford Ave Oxford Ave Bryant Street #532; # 534; #540; #541; #565 - Center Drive Eleanor Pardee Park - Cowper Street #825 to #837 - Downtown Library Bryant St; Forest Ave; Ramona St - Edgewood Drive #1636 - Emerson Street #412; #420; #430; #445; #611; #643; #718 - Emerson Street (east) Lytton Ave Everett Ave Gilman Street (both sides) Hamilton Ave Forest Ave Hamilton Avenue #435; #505 - Jackson Drive #576 - Kipling Street #405 (along Lytton Ave) - Kipling Street (west) Lytton Ave University Ave Middlefield Road #4000 (Cubberley School) - Oregon Avenue #1055 (curb ramp) - Ramona Street (both sides) Channing Ave Addison Ave Waverley Street #510 - LOCATION 1 Barclay Court Robles Park alley walk; Wilkie Way end Cesano Court El Camino Real Rd end Darlington Court Park Blvd end Dinahs Court El Camino Real Rd end Duluth Circle West Charleston Rd end Edlee Avenue Ruthema Ave Park Blvd El Camino Real Road (east) Cesano Ct Monroe Dr El Camino Real Road (east) Monroe Dr Dinahs Ct El Camino Real Road (east) Dinahs Ct Deodar Ln El Camino Real Road (east) West Charleston Rd El Camino Way El Camino Real Road (east) El Camino Way El Camino Way El Camino Real Road (west) Vista Ave Maybell Ave El Camino Real Road (west) Arastradero Rd City Limit George Hood Lane Wilkie Way end James Road El Camino Way Wilkie Way Miller Court #4362 - Monroe Drive #474 - Newberry Court Park Blvd end Park Boulevard West Charleston Rd Whitclem Dr Ruthema Avenue West Charleston Rd Edlee Ave West Charleston Road El Camino Real Road Alma St ATTACHMENT B FY 2015 Sidewalk, Curb, & Gutter Repairs Project STREET LISTS 2 Whitclem Court Whitclem Dr end Whitclem Place Whitclem Dr end Whitclem Way Whitclem Dr end Whitclem Drive Wilkie Way Park Blvd Wilkie Way West Charleston Rd end LOCATION 2 Barron Avenue (south) Cass Way Carlitos Ct Carlitos Court Barron Ave end Cass Way Barron Ave end El Camino Real Road (east) El Camino Way Ventura Ave El Camino Real Road (east) Ventura Ave Curtner Ave El Camino Real Road (east) Curtner Ave Wilton Ave El Camino Real Road (east) Wilton Ave Matadero Ave El Camino Real Road (east) Fernando Ave Lambert Ave El Camino Real Road (east) Lambert Ave Portage Ave El Camino Real Road (east) Olive Ave Pepper Ave El Camino Real Road (west) Page Mill Rd Hansen Way El Camino Real Road (west) Hansen Way Matadero Ave El Camino Real Road (west) Matadero Ave Kendall Ave El Camino Real Road (west) Barron Ave Military Way El Camino Real Road (west) Military Way Los Robles Av Hansen way El Camino Real Rd Page Mill Rd Ilima Court Laguna Ave end Ilima Way Laguna Ave Mcgregor Way Kendall Avenue El Camino Real Rd Whitsell St La Para Avenue (north) La Donna St Laguna Ave Laguna Avenue San Jude Ave Ilima Ct Los Robles Avenue El Camino Real Rd; (Fairmede corner) Campana Dr Magnolia Drive Kendall Ave Military Way Matadero Avenue El Camino Real Rd Whitsell St Mcgregor Way Ilima Way end Page Mill Road #395 along Park Paradise Court Paradise Way end Paradise Way Mcgregor Way end Timlott Lane El Centro St end Vista Avenue El Camino Real Rd Cobel Ln LOCATION 3: California Avenue (south) Amherst St Hanover St California Avenue (south) Hanover St El Camino Real California Avenue (north) El Camino Real Rd Yale St California Avenue (north) Yale St Williams St California Avenue (north) Williams St Wellesley St ATTACHMENT B FY 2015 Sidewalk, Curb, & Gutter Repairs Project STREET LISTS 3 California Avenue (north) Wellesly St Cornell St California Avenue (north) Cornell St Princeton St California Avenue (north) Oberlin St Harvard St California Avenue (north) Hanover St Dartmouth St California Avenue (north) Dartmouth St Columbia St California Avenue (north) Columbia St Bowdoin St California Avenue (north) Bowdoin St Amherst St El Camino Real Road (east) Sheridan Ave Grant Ave El Camino Real Road (east) Sherman Ave California Ave Hanover Street (both sides) California Ave Page Mill Rd (Curb & Gutter List) Street Limit Curb & Gutter Type Addison Avenue (north) Waverley St to Scott St A Birch Street #2060; #2130; #2160 A Boyce Avenue #835; #947; #950 A Bruce Drive #816 B Bryant Street #724 A California Avenue #777; #855 A Center Drive #880 B College Avenue #211 (along Park Blvd) A Colorado Avenue #200 B Cowper Street #1499; #2122 A Emerson Street #412; #420; #430; #745 A Hamilton Avenue #435 A Homer Avenue #200 (along Emerson St) A Hansen Way #3075 A Loma Verde Avenue Cowper St to Avalon Ct A Los Robles Avenue #630 A Nevada Avenue #425; #437 B Madison Avenue #539; #545; #555; #538; #546 B Margarita Avenue #389 A Middlefield Road #2352; #2360; #2370; corner Oregon A Monroe Drive #140 A Otterson Court #2968 A Oxford Avenue #304 (along Birch St) A Paradise Way #980 A Park Boulevard #2248; #2250; #2211; #2253; #2265 to #2277 A Phillips Road #8 B Rorke Way #810 B Stanford Avenue #301 (along Birch St) A Waverley Street #2388; #2345 A Webster Street #259 (along Everett Ave) A 2015 SIDEWALK, CURB and GUTTER REPAIRS PROJECT IFB NO. 156906 BID SUMMARY ATTACHMENT C Engineer's SPENCON JJR ROSAS GOLDEN BAY SPOSETO VANGUARD BASE BID 1: (Sidewalk Repair) Estimate CONSTRUCTION CONSTRUCTION CONSTRUCTION CONSTRUCTION ENGINEERING CONSTRUCTION BID DESCRIPTION BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID ITEM QTY UNIT PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT 1 Sidewalk, 4" thick 75,170 SF $8.50 $638,945 $8.00 $601,360.00 $7.75 $582,567.50 $8.80 $661,496.00 $9.50 $714,115.00 $11.70 $879,489.00 $14.00 $1,052,380.00 2 Driveway, 6" thick 21,760 SF $9.50 $206,720 $8.25 $179,520.00 $9.30 $202,368.00 $9.80 $213,248.00 $12.00 $261,120.00 $12.90 $280,704.00 $15.50 $337,280.00 3 Rolled curb & gutter (width 24") 1,180 LF $35.00 $41,300 $35.00 $41,300.00 $28.70 $33,866.00 $39.00 $46,020.00 $40.00 $47,200.00 $40.00 $47,200.00 $70.00 $82,600.00 4 Rolled curb & gutter (width 36")340 LF $42.00 $14,280 $35.00 $11,900.00 $41.00 $13,940.00 $48.00 $16,320.00 $50.00 $17,000.00 $53.00 $18,020.00 $86.00 $29,240.00 5 Curb Ramp 50 EA $2,000.00 $100,000 $1,800 $90,000.00 $2,063.00 $103,150.00 $2,350.00 $117,500.00 $2,700.00 $135,000.00 $2,670.00 $133,500.00 $4,350.00 $217,500.00 6 Domes only 60 EA $300.00 $18,000 $285.00 $17,100.00 $345.00 $20,700.00 $280.00 $16,800.00 $300.00 $18,000.00 $480.00 $28,800.00 $450.00 $27,000.00 7 Curb 3,470 LF $25.00 $86,750 $26.00 $90,220.00 $14.35 $49,794.50 $22.00 $76,340.00 $31.00 $107,570.00 $28.00 $97,160.00 $40.00 $138,800.00 8 Gutter Pan 8,910 SF $9.50 $84,645 $8.25 $73,507.50 $12.30 $109,593.00 $12.00 $106,920.00 $10.50 $93,555.00 $14.00 $124,740.00 $20.00 $178,200.00 9 Asphalt pavement 9,630 SF $7.00 $67,410 $7.00 $67,410.00 $8.15 $78,484.50 $7.00 $67,410.00 $14.00 $134,820.00 $12.00 $115,560.00 $14.45 $139,153.50 10 Special saw cutting 2,750 LF $2.50 $6,875 $0.50 $1,375.00 $4.95 $13,612.50 $4.00 $11,000.00 $2.00 $5,500.00 $5.00 $13,750.00 $3.00 $8,250.00 11 Recycle concrete & asphalt 3,970 Ton $1.00 $3,970 $0.01 $39.70 $0.01 $39.70 $0.02 $79.40 $0.01 $39.70 $1.00 $3,970.00 $9.05 $35,928.50 12 Traffic control 1 LS $10,000.00 $10,000 $1,000.00 $1,000.00 $0.30 $0.30 $1,000.00 $1,000.00 $13,249 $13,249.00 $26,000 $26,000.00 $81,000 $81,000.00 13 Misc. Transportation Improvements $20,000 LS $20,000 $20,000 $20,000 $20,000.00 $20,000.00 $20,000.00 $20,000.00 BASE BID 1 TOTAL:$1,298,895 $1,194,732.20 $1,228,116.00 $1,354,133.40 $1,567,168.70 $1,788,893.00 $2,347,332.00 BASE BID 2: (Curb & Gutter Repair) 14 Sidewalk, 4" thick 1,410 SF $8.50 $11,985 $8.00 $11,280.00 $8.15 $11,491.50 $8.80 $12,408.00 $9.50 $13,395.00 $11.70 $16,497.00 $14.00 $19,740.00 15 Driveway, 6" thick 820 SF $9.50 $7,790 $8.25 $6,765.00 $12.30 $10,086.00 $9.80 $8,036.00 $12.00 $9,840.00 $12.90 $10,578.00 $15.50 $12,710.00 16 Rolled C&G Type B (width 36")730 LF $42.00 $30,660 $35.00 $25,550.00 $41.00 $29,930.00 $48.00 $35,040.00 $50.00 $36,500.00 $53.00 $38,690.00 $86.00 $62,780.00 17 Curb 2,030 LF $25.00 $50,750 $26.00 $52,780.00 $14.35 $29,130.50 $22.00 $44,660.00 $31.00 $62,930.00 $28.00 $56,840.00 $40.00 $81,200.00 18 Gutter Pan 8,580 SF $9.50 $81,510 $8.25 $70,785.00 $12.30 $105,534.00 $12.00 $102,960.00 $10.50 $90,090.00 $14.00 $120,120.00 $20.00 $171,600.00 19 Asphalt pavement 5,390 SF $7.00 $37,730 $7.00 $37,730.00 $8.15 $43,928.50 $7.00 $37,730.00 $14.00 $75,460.00 $12.00 $64,680.00 $14.45 $77,885.50 20 Recycle concrete & asphalt 810 TON $1.00 $810 $0.01 $8.10 $0.01 $8.10 $0.02 $16.20 $0.01 $8.10 $1.00 $810.00 $9.05 $7,330.50 21 Traffic control 1 LS $5,000.00 $5,000 $1,000.00 $1,000.00 $0.30 $0.30 $1,000.00 $1,000.00 $13,249.00 $13,249.00 $4,000.00 $4,000.00 $15,000.00 $15,000.00 BASE BID 2 TOTAL:$226,235 $205,898.10 $230,108.90 $241,850.20 $301,472.10 $312,215.00 $448,246.00 BASE BID GRAND TOTAL (BASIS of AWARD):$1,525,130 $1,400,630.30 $1,458,224.90 $1,595,983.60 $1,868,640.80 $2,101,108.00 $2,795,578.00 ADD ALTERNATE #1: (Sidewalk Repair) 22 Sidewalk, 4" thick 3,200 SF $8.50 $27,200 $11.00 $35,200.00 $8.15 $26,080.00 $9.00 $28,800.00 $9.50 $30,400.00 $11.70 $37,440.00 $14.00 $44,800.00 23 Recycle Concrete & Asphalt 90 TON $1.00 $90 $12.00 $1,080.00 $0.01 $0.90 $0.02 $1.80 $0.01 $0.90 $1.00 $90.00 $9.05 $814.50 24 Traffic Control 1 lS $500.00 $500 $500.00 $500.00 $0.30 $0.30 $1,000.00 $1,000.00 $3,260.00 $3,260.00 $2,100.00 $2,100.00 $3,500.00 $3,500.00 ADD ALTERNATE #1 TOTAL:$27,790 $36,780.00 $26,081.20 $29,801.80 $33,660.90 $39,630.00 $49,114.50 ADD ALTERNATE #2: (Curb & Gutter Repair) 25 Curb 400 LF $25.00 $10,000 $11.00 $4,400.00 $14.35 $5,740.00 $22.00 $8,800.00 $31.00 $12,400.00 $28.00 $11,200.00 $40.00 $16,000.00 26 Gutter 800 SF $9.50 $7,600 $12.00 $9,600.00 $12.30 $9,840.00 $14.00 $11,200.00 $10.50 $8,400.00 $14.00 $11,200.00 $20.00 $16,000.00 27 Asphalt pavement 400 SF $7.00 $2,800 $15.00 $6,000.00 $8.15 $3,260.00 $8.00 $3,200.00 $14.00 $5,600.00 $12.00 $4,800.00 $14.45 $5,780.00 28 Recycle Concrete & Asphalt 70 TON $1.00 $70 $10.00 $700.00 $0.01 $0.70 $0.02 $1.40 $0.01 $0.70 $1.00 $70.00 $9.05 $633.50 29 Traffic Control 1 LS $500.00 $500 $500.00 $500.00 $0.30 $0.30 $1,000.00 $1,000.00 $3,260.00 $3,260.00 $2,100.00 $2,100.00 $6,500.00 $6,500.00 ADD ALTERNATE #2 TOTAL:$20,970 $21,200.00 $18,841.00 $24,201.40 $29,660.70 $29,370.00 $44,913.50 ADD ALTERNATES TOTAL:$48,760 $57,980.00 $44,922.20 $54,003.20 $63,321.60 $69,000.00 $94,028.00 BASE BID GRAND TOTAL (BASIS OF AWARD):$1,525,130 $1,400,630.30 $1,458,224.90 $1,595,983.60 $1,868,640.80 $2,101,108.00 $2,795,578.00 ADD ALTERNATES TOTAL:$48,760 $57,980.00 $44,922.20 $54,003.20 $63,321.60 $69,000.00 $94,028.00 CONTRACT TOTAL AMOUNT:$1,573,890 $1,458,610.30 $1,503,147.10 $1,649,986.80 $1,931,962.40 $2,170,108.00 $2,889,606.00 City of Palo Alto (ID # 5295) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Sludge Dewatering and Load Out Facility Title: Approval of Contract No. C15156020 With CH2M HILL in the Total Amount Not to Exceed $2,301,221 to Provide Design & Environmental Consulting Services for Sludge Dewatering and Load Out Facility at Regional Water Quality Control Plant - Capital Improvement Program Project WQ- 14001; and Adoption of a Budget Amendment Ordinance in the Amount of $1,942,651 to Provide Additional Appropriation for the Biosolids Facility Project, WQ-14001. From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council: 1. Approve, and authorize the City Manager or his designee, to execute the attached contract with CH2M HILL (Attachment A) in an amount not to exceed $2,301,221 for design and environmental consulting services for sludge dewatering and loadout facility (Component One of the Organics Facilities Plan (OFP)) at the Regional Water Quality Control Plant (RWQCP) Capital Improvement Program, Project WQ-14001, including $2,092,019 for basic services and $209,202 for additional services; and 2. Adopt the Budget Amendment Ordinance in the amount of $1,942,651 (Attachment B) to increase the Biosolids Facility project in the Wastewater Treatment Fund (WQ-14001), offset by a corresponding reduction to the Plant Equipment Replacement project (WQ-80021). Executive Summary A Long Range Facilities Plan (LRFP) was prepared in 2012 to provide a road map for the RWQCP’s future. In 2014, a Biosolids Facilities Plan (BFP) was prepared as City of Palo Alto Page 2 part of an Organics Facilities Plan (OFP). The RWQCP seeks professional engineering and design services to assist staff with the implementation of Component One of the Organics Facilities Plan, which is a new sludge dewatering and truck loadout facility. The new facility will allow retirement of the City’s two sewage sludge incinerators by 2019. Total project cost including design and construction is expected to be approximately $18 million. Background The Palo Alto Regional Water Quality Control Plant (RWQCP) was originally constructed in 1934 and has undergone several expansions and upgrades. The RWQCP is an advanced treatment facility that provides treatment and disposal of wastewater for the cities of Palo Alto, Mountain View, and Los Altos; the Town of Los Altos Hills; the East Palo Alto Sanitary District; and Stanford University. The RWQCP currently has a designed average dry weather flow (ADWF) capacity of 39 million gallons per day (MGD), and a current average flow of about 18 MGD. The RWQCP effluent is partly discharged to the San Francisco Bay, and partly diverted to the RWQCP recycled water facility for reuse. For more information on solids handling systems, see the Biosolids Facilities Plan, Long Range Facilities Plan, and the Preliminary Design Report for the sludge dewatering and truck load out facility. Discussion The City is one of two wastewater plants operating sewage sludge incinerators in California. Palo Alto is planning to retire the incinerators in 2019, when the incinerators will have been in service for 47 years. On January 24, 2013, Council approved the development of a Biosolids Facility Plan (BFP) (See SR ID# 3383). On May 12, 2014, Council approved an Organic Facilities Plan (OFP) (See SR ID# 4744). The BFP, in particular, detailed the evaluation of solutions to retire the Plant’s two sewage sludge incinerators. On May 12, 2014, the Council also directed staff to initiate the design of Component One of the OFP, which is a sludge dewatering and truck load out facility. The new sludge dewatering and truck load facility allows sealed truck hauling of dewatered sewage sludge cake to regional facilities for final treatment. The likely facilities would either compost and/or anaerobically digest the sludge into a stabilized product for suitable land application. Approval of a sludge hauling contract detailing the disposal solution would be brought back to Council in approximately 2019, after successful City of Palo Alto Page 3 commissioning of the new dewatering and truck loadout facility. Component 2 of the OFP, the larger project at approximately $57 million total cost, consists of anaerobic digesters, biogas utilization, electric energy generating systems, and a thermal hydrolysis pretreatment step. Staff is still completing the preliminary design of Component 2 and work is expected to be complete in February 2015. Component 1 startup is needed prior to initiating construction of Component 2. The incinerators must remain in service until startup of the sludge dewatering facility; only then can the incinerators be demolished and the site cleared before the larger complex of digester tanks and energy generating equipment can be installed at the constrained RWQCP site. Council approval of the design contract for Component 1 is a key step in allowing for retirement of the incinerators and paving the way for the future anaerobic digester system that will produce local, renewable energy that can run the RWQCP. Scope of Services Description The consultant will design, develop specifications including those for ancillary equipment, prepare bid documents for procurement, and facilitate the permitting and California Environment Quality Act (CEQA) review for a complete operational sewage sludge dewatering system and load out facility. On September 2, 2014 a notice for Request for Proposals for design services for the Sludge Dewatering and Loadout Facility was posted to the City’s website and was sent to 5 design firms and 12 Builders Exchanges. Proposals were received from two firms on September 30, 2014. Summary of Solicitation Process Proposal Title/Number Design Of Sludge Dewatering and Loadout Facility At The Regional Water Quality Control Plant - RFP No. 156020 Proposed Length of Project 18 months Number of Proposals mailed &/or emailed 5 Consultants 12 Builders Exchanges Total Days to Respond to Proposal 28 Pre-proposal Meeting Date September 9, 2014 City of Palo Alto Page 4 Number of Company Attendees at Pre-proposal Meeting 6 firms Number of Proposals Received: 2 Number of Companies Interviewed 2 Range of Proposal Amounts Submitted $1,997,520 to $2,092,019 Evaluation of Proposals An evaluation committee consisting of Public Works Department engineering staff reviewed the two proposals. The committee carefully reviewed each firm's qualifications and submittal in response to the criteria identified in the RFP. The criteria used to evaluate the proposing firms included: Quality and completeness of proposal; quality, performance, and effectiveness of the work plan; proposer's experience; proposer's ability to perform the work within the time specified; cost; proposer's financial stability; proposer's prior record of performance with the City; and proposer's compliance with applicable laws and regulations. Both firms were invited to participate in oral interviews on October 30, 2014. Fee proposals of both firms were within 5% of each other, but CH2M HILL’s fees are higher. CH2M HILL was selected because of its understanding of needed design services; the quality, innovation and thoroughness of its proposed work plan; and the professional experience of the key team members. During CH2M HILL’s presentation and interview, CH2M HILL’s team members best demonstrated an understanding of the Plant’s intentions for this project, especially in regards to the building and equipment layout, height restrictions, other site constraints, and the future sludge digestion system. Timeline The base design work is estimated to be completed fourteen months after the issuance of the notice to proceed, or approximately March 2016. Construction is estimated to be completed thirty-six months after the issuance of notice to proceed, or approximately July 2019. City of Palo Alto Page 5 Resource Impact The project is to be funded by the Biosolids Facility project (WQ-14001) in the Wastewater Treatment Fund. With $358,570 available within this project, a shortfall of $1,942,651 exists. As a result, the Plant Equipment Replacement Project (WQ-80021) is proposed to be reduced, with resulting savings placed in the Biosolids Facility project. The overall cost of the Biosolids Facility project is not increasing at this time, but rather the project is being accelerated consistent with City Council direction. No major impacts as a result of reducing the Plant Equipment Replacement project are anticipated at this time as this recurring project is recommended to be fully funded again as part of the FY 2016 Proposed Capital budget process. Additionally, the CIP Program Manager (SR ID# 5116), RMC Water & Environment, will assist the City in securing a low-interest State Revolving Fund (SRF) loan for this project. The latest published SRF loan interest rate is a favorable 1.9%. An SRF loan can be secured after completion of CEQA. The SRF loan principal will reimburse the Wastewater Treatment Fund WQ-80021 capital budget to cover this project’s design, CEQA, and construction expenses; repayment of the principal and interest on the SRF loan will be paid by the Wastewater Treatment Fund operating budget, which is reimbursed approximately 62% by five Plant partner agencies. The first repayment of a 30-year SRF loan is expected to begin in early 2020, a year after construction completion, and would be included as an expense in the FY2020 Wastewater Treatment Fund operating budget. Policy Implications Authorization of this project does not represent a change in existing policies. Environmental Review This design phase of the project does not require the review under California Environmental Quality Act (CEQA); however a CEQA review will be completed for the construction phase of the project. At a minimum, a mitigated negative declaration is expected for the construction phase. Attachments: A: C15156020_CH2M HILL Design of Sludge Dewatering and Loadout Facility (PDF) B: BAO XXXX Biosolids CIP (DOCX) CITY OF PALO ALTO CONTRACT NO. C15156020 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND CH2M HILL ENGINEERING FOR PROFESSIONAL SERVICES This Agreement is entered into on this 12 th day of January, 2014, (“Agreement”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and CH2M HILL ENGINEERS, INC., a California corporation, located at 1737 North 1st Street, Suite 300, San Jose, CA 95112 ("CONSULTANT"). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to complete an operational sewage sludge dewatering system and load out facility at the Palo Alto Regional Water Quality Control Plant (“Project”) and desires to engage a consultant to size, design, and develop specifications for the sludge dewatering and loadout facility in connection with the Project (“Services”). B. CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit “A”, attached to and made a part of this Agreement. NOW, THEREFORE, in consideration of the recitals, covenants, terms, and conditions, in 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. Optional On-Call Provision (This provision only applies if checked and only applies to on- call agreements.) Services will be authorized by the City, as needed, with a Task Order assigned and approved by the City’s Project Manager. Each Task Order shall be in substantially the same form as Exhibit A-1. Each Task Order shall designate a City Project Manager and shall contain a specific scope of work, a specific schedule of performance and a specific compensation amount. The total price of all Task Orders issued under this Agreement shall not exceed the amount of Compensation set forth in Section 4 of this Agreement. CONSULTANT shall only be compensated for work performed under an authorized Task Order and the City may elect, but is not required, to Professional Services Rev. Feb. 2014 1 authorize work up to the maximum compensation amount set forth in Section 4. 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 performance of Services under this Agreement. CONSULTANT 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 of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY’s agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services described in Exhibit “A”, including both payment for professional services and reimbursable expenses, shall not exceed Two Million Ninety-Two Thousand Nineteen Dollars ($2,092,019.00). In the event Additional Services are authorized, the total compensation for Services, Additional Services and reimbursable expenses shall not exceed Two Million Three Hundred One Thousand Two Hundred and Twenty-One Dollars ($2,301,221). The applicable rates and schedule of payment are set out in Exhibit “C-1”, entitled “HOURLY RATE SCHEDULE,” which is attached to and made a part of this Agreement. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit “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 CONSULTANT’s billing rates (set forth in Exhibit “C- 1”). 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 13 below. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be Professional Services Rev. Feb. 2014 2 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx performed by CONSULTANT or under CONSULTANT’s supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. SECTION 7. COMPLIANCE WITH LAWS. CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all permits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services. SECTION 8. ERRORS/OMISSIONS. CONSULTANT shall correct, at no cost to CITY, any and all errors, omissions, or ambiguities in the work product submitted to CITY, provided CITY gives notice to CONSULTANT. If CONSULTANT has prepared plans and specifications or other design documents to construct the Project, CONSULTANT shall be obligated to correct any and all errors, omissions or ambiguities discovered prior to and during the course of construction of the Project. This obligation shall survive termination of the Agreement. SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall submit estimates of probable construction costs at each phase of design submittal. If the total estimated construction cost at any submittal exceeds ten percent (10%) 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 performing the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of the CITY. SECTION 11. ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the performance of any of CONSULTANT’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. Professional Services Rev. Feb. 2014 3 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx SECTION 12. SUBCONTRACTING. Option A: No Subcontractor: 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. Option B: Subcontracts Authorized: Notwithstanding Section 11 above, CITY agrees that subconsultants may be used to complete the Services. The subconsultants authorized by CITY to perform work on this Project are: MWA Architects Inc. Siegfried Engineering, Inc. Matthew Higgins, PhD CONSULTANT 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 Dave Green as the Project Manager to have supervisory responsibility for the performance, progress, and execution of the Services and Susan Dennis as the assistant project manager to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the project director, project coordinator, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY’s project manager. CONSULTANT, at CITY’s request, shall promptly remove personnel who CITY 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 the safety of persons or property. The City’s project manager is Padmakar Chaobal, Public Works Department, Environmental Services Division, Water Quality Control Plant, 2501 Embarcadero Way, Palo Alto, CA 94303, Telephone: (650) 329-2287. The project manager will be CONSULTANT’s point of contact with respect to performance, progress and execution of the Services. The CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF MATERIALS. Upon delivery, all work product, including without limitation, all writings, drawings, plans, reports, specifications, calculations, documents, other materials and copyright interests developed under this Agreement shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULTANT agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in CITY, and CONSULTANT waives and relinquishes all claims to copyright or other intellectual property rights in favor of the CITY. Neither CONSULTANT nor its contractors, if Professional Services Rev. Feb. 2014 4 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx 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. [Option A applies to the following design professionals pursuant to Civil Code Section 2782.8: architects; landscape architects; registered professional engineers and licensed professional land surveyors.] 16.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements (“Claims”) that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. [Option B applies to any consultant who does not qualify as a design professional as defined in Civil Code Section 2782.8.] 16.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements (“Claims”) resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. 16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of an Indemnified Party. 16.3. The acceptance of CONSULTANT’s services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive the expiration or early termination of this Agreement. SECTION 17. WAIVERS. The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, Professional Services Rev. Feb. 2014 5 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, 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". CONSULTANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies. 18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best’s Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 18.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution 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 materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification. If the insurer cancels or modifies the insurance and provides less than thirty (30) days’ notice to CONSULTANT, CONSULTANT shall provide the Purchasing Manager written notice of the cancellation or modification within two (2) business days of the CONSULTANT’s receipt of such notice. CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY’s Purchasing Manager during the entire term of this Agreement. 18.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 19.1. The City Manager may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (10) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 19.2. CONSULTANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereof to CITY, but Professional Services Rev. Feb. 2014 6 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx 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 copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULTANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 19.4. Upon such suspension or termination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (i.e., 10 days after giving notice) of suspension or 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 which are of direct and immediate benefit to CITY as such determination may be made by the City Manager acting in the reasonable exercise of his/her discretion. The following Sections will survive any expiration or termination of this Agreement: 14, 15, 16, 19.4, 20, and 25. 19.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. 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 of this Agreement, it will not employ subconsultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance Professional Services Rev. Feb. 2014 7 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 21.3. If the Project Manager determines that CONSULTANT is a “Consultant” as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate financial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act. SECTION 22. NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONSULTANT certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONSULTANT acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 23. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONSULTANT shall comply with the City’s Environmentally Preferred Purchasing policies which are available at the City’s Purchasing Department, incorporated by reference and may be amended from time to time. CONSULTANT shall comply with waste reduction, reuse, recycling and disposal requirements of the City’s Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or composting waste. In particular, Consultant shall comply with the following zero waste requirements: • All printed materials provided by Consultant to City generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double-sided and printed on a minimum of 30% or greater post-consumer content paper, unless otherwise approved by the City’s Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of 30% or greater post- consumer material and printed with vegetable based inks. • Goods purchased by Consultant on behalf of the City shall be purchased in accordance with the City’s Environmental Purchasing Policy including but not limited to Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Office. • Reusable/returnable pallets shall be taken back by the Consultant, at no additional cost to the City, for reuse or recycling. Consultant shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed. SECTION 24. NON-APPROPRIATION 24.1. 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. Professional Services Rev. Feb. 2014 8 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 25. MISCELLANEOUS PROVISIONS. 25.1. This Agreement will be governed by the laws of the State of California. 25.2. 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. 25.3. 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. 25.4. 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. 25.5. 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. 25.6. 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. 25.7. 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. 25.8 If, pursuant to this contract with CONSULTANT, City shares with CONSULTANT personal information as defined in California Civil Code section 1798.81.5(d) about a California resident (“Personal Information”), CONSULTANT shall maintain reasonable and appropriate security procedures to protect that Personal Information, and shall inform City immediately upon learning that there has been a breach in the security of the system or in the security of the Personal Information. CONSULTANT shall not use Personal Information for direct marketing purposes without City’s express written consent. 25.9 All unchecked boxes do not apply to this agreement. 25.10 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. 25.11 This Agreement may be signed in multiple counterparts, which shall, when Professional Services Rev. Feb. 2014 9 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx executed by all the parties, constitute a single binding agreement // 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 City Manager APPROVED AS TO FORM: Senior Asst. City Attorney CH2M HILL ENGINEERS, INC. By: Name: Title: Attachments: EXHIBIT “A”: SCOPE OF WORK EXHIBIT “B”: SCHEDULE OF PERFORMANCE EXHIBIT “C”: COMPENSATION EXHIBIT “C-1”: SCHEDULE OF RATES EXHIBIT “D”: INSURANCE REQUIREMENTS Professional Services Rev. Feb. 2014 10 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx EXHIBIT “A” SCOPE OF SERVICES Palo Alto Regional Water Quality Plant Design and Environmental Consulting Services for the Sludge Dewatering and Loadout Facility The Palo Alto Regional Water Quality Control Plant (RWQCP) was originally constructed in 1934 and had undergone several expansions and upgrades throughout the years. The RWQCP is an advanced treatment facility that provides treatment and disposal of wastewater for the Cites of Palo Alto, Mountain View, and Los Altos; the Town of Los Altos Hills; the East Palo Alto Sanitary District; and Stanford University. The RWQCP currently has a designed average dry weather flow (ADWF) capacity of 39 million gallons per day (MGD), and a current average flow of about 20 MGD. The RWQCP effluent is partly discharged to the San Francisco Bay, and partly diverted to the RWQCP recycled water facility for reuse. A Long Range Facilities Plan (LRFP) was prepared in 2012 to provide a road map for the RWQCP’s future. In 2014, a Biosolids Facility Plan (BFP or The Plan) was prepared and approved by the city. The RWQCP seeks professional engineering and design services to assist staff with the implementation of Component 1 of the Plan, which is a new sludge dewatering and truck loadout facility. BACKGROUND For more information on solids handling systems, see Biosolids Facilities Plan, Long Range Facilities Plan, and the Preliminary Design Report for the sludge dewatering and truck load out facility. SCOPE OF SERVICES A. GENERAL The consultant shall size, design, and develop specifications including those for ancillary equipment. Consultant shall prepare bid documents for procurement. Consultant shall prepare for permitting, including city permits and the California Environment Quality Act (CEQA) documentation, for a complete operational sewage sludge dewatering system and load out facility (The Project) at the Palo Alto Regional Water Quality Plant. The detailed design of this facility shall be informed by the “Preliminary Design” completed by City’s biosolids consultant. The “Preliminary Design” discusses the current and projected Professional Services Rev. Feb. 2014 11 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx undigested sludge and biosolids production, and description and sizing of the key equipment required for this facility. Consultant shall perform the design in phases. The design goals and deliverables shall be performed for 30% design, 60% design, and 90% design. At the completion of each phase of design, consultant shall submit the design package and meet with the City staff to review the submittal and discuss comments. The intent of the design review meeting is to solicit and compile comments, address issues, and resolve issues. Design drawings shall be prepared in AutoCAD and PDF, and specifications shall be prepared in Microsoft Word for the use by the City. Provide ten sets of hard copy drawings for City’s review at each phase. B. TASKS The consultant’s scope of work includes, but not necessarily limited to the following: Task 1: CEQA Documentation The Consultant shall develop any documentation that is necessary to meet requirements of the CEQA for the project. Staff anticipate the need for an Initial Study/Mitigated Negative Declaration (IS/MND) for the project, at a minimum. The facilities needed for the sludge dewatering and truck loadout facility are similar in nature to the solids handling facilities already constructed onsite at the RWQCP. The sludge dewatering facility has independent utility as a backup sludge dewatering and haul off facility that can be used long-term even if anaerobic digesters are not built; therefore, CEQA is being completed separately for the sludge dewatering and truck loadout facility and the future anaerobic digester facility. Consultant should evaluate the hauling needed to convey unclassified sludge to an offsite facility for processing and resulting air quality emissions. Air emissions associated with truck traffic will need to be evaluated and need to be less than the CEQA significance threshold to allow adoption of an MND. Emissions are not expected to be substantial. Approximately four truck trips per day are expected. The “Level of Service” standards on Embarcadero Road are not expected to deteriorate to a level that would require an EIR from the four truck trips per day. Consultant should evaluate potential for construction impacting possible California clapper rail and salt marsh harvest mouse habitat in the adjacent Palo Alto Baylands. There is no clapper rail or salt marsh habitat on the plant site, so the proximity of the Baylands is not anticipated to create a significant impact. If there are no significant impacts that could not be mitigated, the MND documentation is anticipated as the CEQA document. If an EIR was required, a contract amendment for Council approval would be prepared for the additional work. Task 2: Design A complete design package shall be prepared, suitable for issuance to prospective construction contractors. All necessary disciplines shall be provided, including geotechnical, structural, civil, Professional Services Rev. Feb. 2014 12 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx mechanical, process, architectural, electrical, instrumentation, HVAC, and landscape. The following list includes but not necessarily limited to, components of the design by process area. The consultant shall: Item 2.1 – Site Work - Survey and review the existing site conditions. There are multiple underground (UG) utilities such as pipes, electrical conduits, duct banks and structures (e.g., the existing concrete tunnel) at and in the proximity of the site. All available archived drawings of the UG utilities will be provided to the successful consultant. - The plant has significant geotechnical borings available for the site for use by the consultant and sub consultant. Existing soil data is available for review. If additional borings are required for design, please detail scope and costs in the proposal. - Verify the FEMA Base Flood Zone Elevation (10.5 feet NAVD 1988) for this site, and prepare equipment installations outside of the flood zone accordingly. All equipment, especially electrical equipment such as the 12kV to 480V step down power transformer, the standby diesel power generator, load bank, and motor control center should be above the Flood Zone Elevation. - The Plant monument (benchmark) is located at NE corner of the Old Pumping Plant (OPP) concrete slab. The Mean Sea Level Datum (MSLD) of the benchmark is 7.53 feet NAVD 1988 (Re-levelled from 4.68 feet USC&GS 1967). - Consider vehicle routing to sludge load out, polymer drop-off, generator fuel truck deliveries, etc. in design. - Pavement and pavement restoration design. - Forklift access to facility and for polymer deliveries. - Perimeter walkways and pathways. - Landscape restoration. Item 2.2 – Building: - The Consultant shall design an enclosed reinforced concrete structure to house the entire sludge dewatering system, scum concentrator, and the truck load out facility. - It is anticipated that the electrical power transformer (step down from utility power), the standby power generator, and load bank would be on a concrete pad outside the building. - The construction site falls in City’s PF (D) zone, public facility with a combining site and design review, which imposes certain height restrictions on the new construction. Per the Palo Alto Municipal Code, the height limit is 50’ above grade level. Consultant shall review the City’s zoning requirements for the design of the building. - Consultant shall follow the City’s Baylands Nature Preserve Site Assessment and Design Guidelines. - The building shall meet all applicable local and state building code requirements. - The truck loading facility shall be able to accommodate various types and sizes of commercial hauling trucks. - Design for building components that mitigate against potential problems created by animals commonly found in and around WQCP, including pigeons, swallows, bats, rats, foxes, skunks, and ground squirrels - Building design shall meet City’s noise ordinances. Professional Services Rev. Feb. 2014 13 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx Item 2.3 – Sludge Dewatering, Transport, and Loading Equipment - The system shall include necessary pumps, glass lined piping, valving, and fittings for the movement of sludge. The system shall include polymer receiving, mixing, and pumping equipment. - The system shall include sludge feed piping, metering, and mixing with polymer equipment. - The system shall include belt filter presses (BFP). Refer the preliminary design report for guidance on the type, size and capacity of the BFPs. - Sludge silo design shall have necessary corrosion protection. - The system shall include shafted and/or shaftless screw conveyors for movement of sludge cake. The system shall include sludge storage, weighing, and truck loading systems. - The truck loading equipment and the facility should be able to accommodate various types and sizes of commercial hauling trucks. Item 2.4 – Scum Pumping, Piping, Concentrator - The system shall include scum piping, scum concentrator, scum storage, scum loading, and scum off-haul facilities. The system shall include necessary heat tracing and housekeeping requirements. Item 2.5 – Odor Control and Ventilations Systems - The system shall include necessary HVAC, odor control, and other ventilation systems. Item 2.6 – Power Distribution The system shall include 12kV tie-in to existing 12kV loop system at a pad mounted switch near the proposed facility site. The system shall include new 12kV feeders to a new 12kV / 480V step down transformer. The system shall include a new load bank and standby diesel generator with automatic transfer switch (ATS). The system shall include a motor control center to distribute power to individual loads such as motors, panels, lighting, etc. 1. Consultant shall evaluate and conduct an electrical load study of the electrical power requirements of the new Sludge Dewatering and Load Out facility. 2. Evaluate and recommend optimum size and type of the new standby generator for this service load, based on the load study. Item 2.7 – Controls, Instrumentation, Networking, and SCADA The new system shall be designed around industry standard control instrumentation, signaling, and control systems. The system shall integrate with Plant’s standardized Allen-Bradley PLCs (ControlLogix 5000) and SCADA system (GE iFix 5.8). Networking shall be provided to plant SCADA via fiber optic. Item 2.8 – Spare parts storage and hoisting The new facility shall have space set aside for spare parts storage including 2-meter belt filter press rollers and roller belts, spare conveyor liners, spare conveyor motors, and so forth. New Professional Services Rev. Feb. 2014 14 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx storage shall be in a locked facility (e.g., cage unit) and accessible for movement to the related equipment. Hoisting equipment shall be provided for polymer bags, belt filter press rollers, belts, and so forth. Task 3 – Permits and Regulations Design shall comply with Palo Alto Municipal Code, state and federal regulations, CalOSHA requirements, and so forth. Details are listed below. Bay Area Air Quality Management District (BAAQMD) Permits and approvals are required. Consultant shall evaluate, prepare, and submit forms to obtain an authority to construct (ATC) for new standby diesel generator as well as odor control facilities. City staff will coordinate removal of incinerator and afterburner sources under the permit after startup of the sludge dewatering facility. Generator engine shall comply with Regulation 9 Rule 8. Odor control facilities shall be consistent with Regulation 7 for Odor Control and Regulation 1.301 Public Nuisance rules. Note that the plant has not received significant odor complaints in the past; no BAAQMD inspections have been required. The new facilities shall be designed sufficiently to reduce odors and odors from the existing sludge blend tank shall be brought into the new odor control systems so that the sewage sludge incinerator system can be retired as the odor control treatment method for the existing sludge blend tank. Regional Water Quality Control Board (RWQCB) Plant staff will handle coordination with RWQCB staff for the new facility. Plant staff will coordinate new USEPA 503 sludge regulation requirements and USEPA biosolids monitoring and reporting requirements. Consultant shall provide technical support, as necessary, as it relates to the new facility. Palo Alto Planning Department approvals with PTC/ARB/PACC: Permits and approvals are required. Specifically, the design shall comply with the zoning requirements in zone PF (D). PF is a public facilities district zone (see PAMC Chapter 18.28); the (D) is a site and design combining district, which adds additional reviews due to significant changes (See PAMC Chapter 18.30(G)). Comply with noise ordinance at PAMC Chapter 9.10 and Palo Alto Comprehensive Plan Goal N-8, regarding noise. Conduct a noise study, as necessary to comply with PAMC and Comprehensive Plan goal. Setbacks are 20-feet from property line and 50-foot height limits. RWQCP will pay Planning Department fees. Planning and Transportation Commission (PTC): Assume one public meeting for approval at PTC prior to meetings with the ARB. Architectural Review Board (ARB): The ARB requirements shall comply with a major design review. The preparation requirements are significant and consultant shall adequately cover the costs and time to prepare for this approval. Specific requirements can be found at Planning Department website at http://www.cityofpaloalto.org/civicax/filebank/documents/6473. The consultant shall employ necessary staffing to complete all of the ARB requirements and assume one study session, and up to three follow-up public hearings will be required to gain approval from Professional Services Rev. Feb. 2014 15 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx the ARB. The consultant shall be required to attend two meetings with Planning staff prior to the ARB study session, one Planning and Transportation Committee (PTC) meeting, any of the needed three ARB public hearings, and the final Palo Alto City Council approval meeting of the project to answer questions regarding the project. Palo Alto City Council (PACC): Assume one public meeting at PACC for project approval. Tree Removal Trees that must be removed at any proposed site must be detailed on a landscape drawing and a permit obtained prior to removal. Palo Alto Fire Department (PAFD): Permits and approvals are required. Consultant shall determine requirements for hazardous materials (e.g., diesel fuel in double contained standby generator base tank) and fire protection (e.g., fire hydrants, fire sprinklers, fire extinguishers, fire alarm, etc.). Design shall comply with PAFD requirements. Consultant shall evaluate and prepare a hazardous materials disclosure checklist and prepare the hazardous materials permit. Assume meetings with PAFD. Assume meetings with City Utilities Department water group on fire suppression water coordination Public Works Engineering Requirements Flood zone: Consultant’s design shall comply with AE (10.5) flood zone. Design shall provide flood proofing of the new equipment and installation. Basic information is below. Elevation certification will be provided during construction. 2501 Embarcadero Way Flood zone: AE10.5 (NAVD88) Panel: 0030H Storm water: All storm water shall be diverted back to plant headworks. No other storm water permitting will be required. Task 4: Services During Bidding (SDB) - Consultant shall assist the City in preparation of construction bid package/s (IFBs). - Consultant shall respond to the requests for clarification and/or information from prospective bidders. - Consultant shall assist the City with preparation of IFB addenda and furnish the originals required for said addenda. - Consultant shall attend and assist the City at the pre-bid conferences and the job walk. Task 5: Services During Construction (SDC) - Consultant shall review submittals from the contractor for conformance with the Professional Services Rev. Feb. 2014 16 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx Contract Documents. The Consultant shall review and return the submittal comments to the City within seven calendar days. - Consultant shall prepare written response to the Request for Information (RFI) submitted by the contractor. The Consultant shall review, comment and return the RFI responses within seven calendar days. - Consultant shall review and validate the Contract Change Order requests submitted by contractor for accuracy and correctness, as requested by the City. - As requested, the Consultant shall attend periodic Project Progress Meetings with the Contractor. Please allow for one meeting per month, at the minimum, during the construction phase. - At the completion of the construction, the consultant shall assist the City in identifying any deficiencies or non-compliance of the project documents by participating in walk through and creating a “punch list”. - The Consultant shall provide the technical support to the City during start up and commissioning of the new dewatering and load out equipment. The Consultant shall work with Contractor and equipment manufacturer’s representatives, as requested by the City. - The Consultant shall assist the City in monitoring, documenting and/or validating any testing required by the permitting agencies. Task 6 – Record Drawings and O&M Manuals - The Consultant shall periodically review the “as-built” or “red line” drawings and documents maintained by the contractor during construction. Upon construction completion, the Consultant shall prepare record drawings per contractor furnished “red lined” or “as-built” drawings. The record drawings shall consist of annotated contract drawings and electronic files showing changes in design and construction. - The consultant shall provide one full size, one half size (11”x17”) sets and electronic copies of the record drawings. The electronic copies shall be, one in AutoCAD 3D Civil 2010 and other in PDF format. - The construction contractor will be responsible for submitting the O&M Manuals. The consultant shall review contractor furnished O&M Manuals for completeness and to ensure that all appropriate information is included in the manuals for use by the Plant staff. Task 7 – Project Management Provide a competent project lead to direct, organize and coordinate, and consolidate the design team efforts to meet project goals and objectives. The project lead will supervise and provide direction to the team members as well as to the sub-consultants. The project management task includes but necessarily limited to: - Prepare and distribute a project management plan to include schedule, budget, roles, contacts and procedures. Professional Services Rev. Feb. 2014 17 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx - Prepare monthly progress report for submission to the City. At the least the report shall include the progress by each task down to the sub-tasks, the budget status, outstanding issues, potential changes, and schedule impacts. - Prepare, maintain, and update project schedule for City’s review and comments on, at the least monthly basis. - Coordinate twice monthly project coordination/progress meetings with City staff. Prepare and distribute Meeting Minutes. - Conduct internal team meetings to review progress, coordinate evaluations, and identify information needs. - Monitor project budget for effort versus progress and keep the City informed of the status. Identify and mitigate potential overruns. - Manage sub-consultants. - Manage QA / QC team. END OF SCOPE OF WORK Professional Services Rev. Feb. 2014 18 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx EXHIBIT “B” SCHEDULE OF PERFORMANCE CONSULTANT shall perform the Services so as to complete each milestone within the number of days/weeks specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the term of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed. Milestones Completion No. of Weeks From NTP 1. Task 1 18 CEQA Documentation 2. Task 2 56 Design 3. Task 3 56 Permits and Regulations 4. Task 4 65 Services During Bidding 5. Task 5 TBD Services During Construction 6. Task 6 TBD Record Drawings and O&M Manuals 7. Task 7 Project Management On Going Professional Services Rev. Feb. 2014 19 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx EXHIBIT “C” COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the hourly rate schedule attached as exhibit C-1 up to the not to exceed budget amount for each task set forth below. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit “A” (“Basic Services”) and reimbursable expenses shall not exceed $2,092,019. CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. In the event CITY authorizes any Additional Services, the maximum compensation shall not exceed $2,301,221. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY’s Project Manager may approve in writing the transfer of budget amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, including reimbursable expenses, does not exceed $2,092,019 and the total compensation for Additional Services does not exceed $209,202. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Task 1 $74,801 (CEQA Documentation) Task 2 $1,203,285 (Design) Task 3 $93,693 (Permits and Regulations) Task 4 $36,896 (Services During Bidding) Task 5 $454,172 (Services During Construction) Task 6 $53,686 (Record Drawings and O&M Manuals) Task 7 $141,086 (Project Management) Professional Services Rev. Feb. 2014 16 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx Sub-total Basic Services $2,057,619 Reimbursable Expenses $36,400 Total Basic Services and Reimbursable expenses $2,092,019 Additional Services (Not to Exceed) $209,202 Maximum Total Compensation $2,301,221 REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULTANT shall be reimbursed are: A. Travel outside or to the San Francisco Bay area, including transportation and meals, will be reimbursed at actual cost subject to the City of Palo Alto’s policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone service charges, cellular phone service charges, facsimile transmission and postage charges are reimbursable at actual cost. All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $1,000 shall be approved in advance by the CITY’s project manager. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY’s project manager’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT’s proposed maximum compensation, including reimbursable expense, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s Project Manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement Work required because the following conditions are not satisfied or are exceeded shall be considered as additional services: Professional Services Rev. Feb. 2014 17 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx a. Design additional air compressor in the new facility to replace the 30 hp air compressor currently located in the incinerator building; or, alternatively, design replacement of three existing air compressors around the plant; b. Provide design for new compressed air storage facility somewhere at plant; c. Assist the City with any additional work related to dewatering and haul off facility; Professional Services Rev. Feb. 2014 18 J:\engineer\Projects\Active Projects\Biosolids Facility Plan\Component 1 - Sludge Dewatering and Load Out Facility\Pre-award doc.s proposal evals, selection, SR etc\C15156020_CH2M HILL Design of Sludge Dewatering and Loadout FacilityRev1.docx EXHIBIT “C-1” HOURLY RATE SCHEDULE See attached CH2M HILL rate schedule. Professional Services Rev Sep. 2014 18 EXHIBIT “D” INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES YES WORKER’S COMPENSATION EMPLOYER’S LIABILITY STATUTORY STATUTORY YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED BODILY INJURY - EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY (30) DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. CITY APPROVES CH2M HILL’S PROFESSIONAL LIABILITY DEDUCTIBLE OF $750,000 AND COMMERICAL GENERAL LIABILITY DEDUCTIBLE OF $500,000, WHICH EXCEED THE CITY’S STANDARD $5,000 DEDUCTIBLE REQUIREMENT. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS” A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. Professional Services Rev Sep. 2014 19 B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE EMAILED OR MAILED TO: EMAIL: InsuranceCerts@CityofPaloAlto.org PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303. Professional Services Rev Sep. 2014 20 1 5295/eb Revised December 08, 2014 Attachment B Ordinance No. XXXX ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR THE FISCAL YEAR 2015 IN THE WASTEWATER TREATMENT FUND, REDUCING THE PLANT EQUIPMENT REPLACMENTS PROJECT (WQ-80021) BY $1,942,651 AND INCREASING THE BIOSOLIDS FACILITY PROJECT (WQ-14001) BY $1,942,651, RESULTING IN NO IMPACT TO THE RESERVE LEVEL IN THE WASTEWATER TREATMENT FUND. The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. The Council of the City of Palo Alto finds and determines as follows: A. Pursuant to the provisions of Section 12 of Article III of the Charter of the City of Palo Alto, the Council on June 16, 2014 did adopt a budget for Fiscal Year 2015; and B. The City of Palo Alto is one of only two wastewater plants in California operating sewage sludge incinerators, and plans to retire the incinerators in 2019; and C. On January 24, 2013 the City Council approved the development of a Biosolids Facility Plan, and on May 12, 2014 the City Council approved an Organics Facility Plan; and D. The City Council directed staff to initiate design of Component One of the Organics Facility Plan on May 12, 2014, which is a sludge dewatering truck load facility, which will allow for sealed truck hauling of dewatered sewage sludge cake to regional facilities for final treatment; and E. Funding adjustments included in this Budget Amendment Ordinance will allow for design and environmental consulting services for the sludge dewatering truckload facility. SECTION 2. The sum of One Million Nine Hundred Forty Two Thousand, Six Hundred and Fifty One Dollars ($1,942,651) is hereby reduced from the Plant Equipment Replacements project (WQ-80021) and the Biosolids Facility project (WQ-14001) is hereby increased by a corresponding amount, resulting in no net impact on reserves in the Wastewater Treatment Fund. SECTION 3. As provided in Section 2.04.330 of the Palo Alto Municipal Code, this ordinance shall become effective upon adoption. SECTION 4. The Council of the City of Palo Alto hereby finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. 2 5295/eb Revised December 08, 2014 // INTRODUCED AND PASSED: Enter Date Here AYES: NOES: ABSENT: ABSTENTIONS: NOT PARTICIPATING: ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ Senior Assistant City Attorney City Manager ____________________________ Director of Administrative Services ____________________________ Director of Public Works City of Palo Alto (ID # 4920) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Approval of a Contract for Hosted ILS Title: Approval of a Contract with Innovative Interfaces Incorporated For Sierra, a Hosted Integrated Library System For the Palo Alto City Library For a First Year Cost Not to Exceed $188,814, and Full Contract to Last Not More Than Seven Years (2015-2022) For a Total Amount Not to Exceed $950,301 (CIP Project TE-11001) From: City Manager Lead Department: Library Recommendation Staff recommends that Council consider the following motion: • Council approve, and authorize the City Manager or a designee to execute, the attached contract with Innovative Interfaces Incorporated, in the amount of $157,345 for a 1-year subscription to Sierra with the 6-year option to renew the contract upon the City’s service satisfaction, with a total not exceeding $950,301. • Approve a 20% contingency of $31,469 in addition to the contract amount for the first year. Executive Summary This project will purchase and implement state of the art software and/or software services to provide the functionality of the Library’s current integrated library system (ILS) and a significant upgrade to it. The ILS performs and manages most library transactions and operations, including circulation (check-in and check-out) of books and other materials, customer accounts (including financial records), and collections databases (magazines, films, ebooks, etc.); the public library catalog; processes associated with purchasing and cataloging items for the collection; and statistical reporting. Background The average life expectancy of an ILS is about seven years. The Library’s most recent ILS was installed in 2005. The project and associated costs are detailed in the Library’s technology plan completed in 2009 and reviewed by the Library Advisory Commission. The plan recommends the replacement of the ILS software in order take advantage of new features like federated City of Palo Alto Page 2 search and to implement a discovery layer, features which will allow users to find a greater number of resources or options to answer their searching terms. Additionally, the ILS replacement will allow the Library to achieve the following goals: • Eliminate most or all in-house ILS computer hardware and software via replacement with a cloud-based ILS service. • Address shortcomings in the existing bibliographic database system (limitations of the current ILS) including search, record display, and interoperability requirements with other vendors and services. • Improve the customer usability of the public access catalog to provide customizable web-based self-service. • Improve the functionality of the circulation system. • Improve database maintenance and cataloging. • Maintain functionality of acquisition and serials services. • Provide robust reporting and integration with third-party products and services. Discussion A request for proposal (RFP) for the Library Computer System software was issued in March 2014. An evaluation team of staff from the Library Department, IT, and a library technology consultant evaluated the proposals from five vendors. The criteria used were: cost considerations, company viability and references, support and maintenance agreements and expertise in providing the required service. The evaluation team invited three of the five to come to Palo Alto to do live demonstrations of their systems. Along with demonstrations and references from other libraries that currently use the respondent’s services, staff found that when taking into consideration all criteria, Innovative Interfaces, Incorporated was found to have the best ILS services to meet the needs of the Library. Evaluation and award of the ILS vendor was approved in November 2014. Timeline Following the execution of the contract, an implementation start date in March 2015 is anticipated. The go-live tentatively scheduled for September 2015. Resource Impact Funds for this contract have been identified in the CIP budgeted Technology Fund [TE11001]. The first year expense for switching from the current ILS system to Sierra is $188,814, including a 20% contingency. For the following six years, the total ongoing equipment and software maintenance costs are estimated at $761,487, including 20% contingency for each annual cost, and will be subject to annual appropriations. Policy Implications This agreement is consistent with existing City policy. City of Palo Alto Page 3 Environmental Review This request for additional funding for Sierra software s is not subject to CEQA pursuant to Title 14 California Code of Regulations Section 15061(b)(3), and it can be seen with certainty that there is no possibility of a significant effect on the environment. Attachments: Attachment A: Contract K120214 City of Palo Alto_Innovative-Signed (PDF) CITY OF PALO ALTO OFFICE OF THE CITY ATTORNEY January 12, 2015 The Honorable City Council Palo Alto, California Request for Authorization to Increase Legal Services Agreement with the law firm of Goldfarb & Lipman LLP by an additional $150,000 for a total not to exceed amount of $380,000 and Adoption of a related Residential Housing In-Lieu Fund Budget Amendment Ordinance The City Attorney’s Office requests the Council authorize an increase to the existing legal services agreement with the law firm of Goldfarb & Lipman, LLP, Attorneys at Law by an additional $150,000 for a total not to exceed amount of $380,000 for legal services relating to the City’s Below Market Rate Housing Program. In addition, in the City Attorney’s office requests that Council adopt an Ordinance Amending The Budget For Fiscal Year 2015 To Provide Additional Appropriation Of $150,000 In The Residential Housing In-Lieu Fee Fund to fund this increase. The City has an existing agreement with the Law Firm of Goldfarb & Lipman LLP for litigation services relating to the City’s Below Market Rate (“BMR”) Housing Program (Contract No. S13149272). The City Attorney's Office requests authorization to amend the agreement to increase compensation under the agreement by an additional $150,000. This amendment would bring the not to exceed amount of the agreement to $380,000. Goldfarb & Lipman has defended the City in two litigation matters relating to the City’s BMR housing program. Additional funding is necessary to fund documenting the settlement of one matter and continuing defense of the second matter. Based on the above, staff recommends to appropriate $150,000 from the Residential Housing In-Lieu Fee Fund to fund this contract amendment amount. ATTACHMENTS: BAO XXXX BMR Legal Services (DOCX) Department Head: Molly Stump, City Attorney Page 2 1 Revised September 20, 2013 5388/so Ordinance No. XXXX ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR FISCAL YEAR 2015 TO PROVIDE ADDITIONAL APPROPRIATION OF $150,000 IN THE RESIDENTIAL HOUSING IN-LIEU FEE FUND FOR LITIGATION SERVICES PROVIDED BY GOLDFARB & LIPMAN LLC. The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. The Council of the City of Palo Alto finds and determines as follows: A. Pursuant to the provisions of Section 12 of Article III of the Charter of the City of Palo Alto, the Council on June 16, 2014 did adopt a budget for Fiscal Year 2015; and B. Goldfarb & Lipman LLC has defended the City in two litigation matters relating to the City’s Below Market Rent (BMR) Housing Program since November 2012; and C. Additional funding is necessary to fund documenting the settlement of one matter and continuing defense of the second matter; and D. At the time that the 2015 Adopted Budget was being considered by the City Council, the status of the original law suit was being reviewed by the courts; and SECTION 2. The sum of One Hundred Fifty Thousand Dollars ($150,000) is hereby appropriated for litigation services contract amendment with Goldfarb & Lipman LLP, for a new not to exceed amount of Three Hundred Eighty Thousand Dollars ($380,000) and the ending fund balance in the Residential Housing In-Lieu Fund is decreased by One Hundred Fifty Thousand Dollars ($150,000). SECTION 3. As provided in Section 2.04.330 of the Palo Alto Municipal Code, this ordinance shall become effective upon adoption. SECTION 4. The Council of the City of Palo Alto hereby finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. // // // // // // // // // 2 Revised September 20, 2013 5388/so INTRODUCED AND PASSED: Enter Date Here AYES: NOES: ABSENT: ABSTENTIONS: NOT PARTICIPATING: ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ Senior Assistant City Attorney City Manager ____________________________ Director of Administrative Services City of Palo Alto (ID # 5416) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Cardiac Therapy Agreement Title: Approval of a Short Form Agreement for Revenue Contracts between the City of Palo Alto and the Cardiac Therapy Foundation of the Mid- Peninsula, Inc. Concerning The Use of the Gymnasium Facilities and Associated Fees for the Facility Use at the Cubberley Community Center for Jointly Supported Cardiac Therapy Programs From: City Manager Lead Department: Community Services Recommendation Staff recommends that the Council approve the Short Form Agreement for Revenue Contracts (Attachment A), extending the contract between the City of Palo Alto and the Cardiac Therapy Foundation of the Mid-Peninsula, Inc. (CTF) through December 31, 2019. Background The purpose of this public-private partnership/joint venture arrangement is to continue current classes, programs and services related to the CTF program at the Cubberley Community Center (Cubberley) for the benefit of resident and non-resident doctor-referred participants afflicted with cardiovascular disease and other medically related conditions. For almost 40 years, CTF has been serving adults with cardiovascular disease or diabetes. It is the only non-hospital-based program on the Peninsula that provides these kinds of therapeutic and educational services for persons who are at risk for heart attacks. In December 2001, the City and PAUSD entered into a property exchange agreement (Exchange) whereby the City obtained title to eight-acres of Cubberley site in exchange for the City's release of its interest in the Terman Community Center site to PAUSD. CTF sub-leased office and program space through the Jewish Community Center (JCC) at the Terman Community Center site before moving, along with the JCC, to Cubberley, when Terman was converted to a public middle school in 2003. In September 2009, the JCC relocated from Cubberley to its new campus on Fabian Way. CTF desired to remain at Cubberley due to the suitability of facilities and because the City could offer availability of gym space at times that would continue current therapy classes and programs. On September 27, 2010, the Council approved an agreement with CTF so it could continue to operate its program at Cubberley through December 31st 2014. City of Palo Alto Page 2 Discussion The agreement is a renewal of the existing agreement with CTF; the following are key changes: a. A 5 year term – January 1st, 2015 to December 31, 2019; and b. Revenue to the City will increase by 3% annually to match the agreement between PAUSD and the City of Palo Alto. The term of this agreement will expire at the same time as the City’s lease with PAUSD for the use of Cubberley, namely, December 31, 2019. At this time, it is unknown whether a new lease between the City and PAUSD will be negotiated for community use of Cubberley beyond December 31, 2019 or what the terms and conditions of a possible new lease will be. Therefore, any commitments to partner organizations providing services at Cubberley cannot extend beyond December 31, 2019. The Community Services Department values the services CTF has provided the Palo Alto community since 1970. The program has over 200 regular participants who exercise weekly at Cubberley under the supervision of doctors and a skilled nursing staff. In addition to the many health benefits this program provides, the program also provides a very positive social benefit, which is almost as important for the participants as the physical benefits. Each participant shares a common challenge that bonds them in a special way. This bond helps motivate members to keep healthy through physical activity. Countless friendships have developed over the 40 years, improving the quality of life for thousands of people. This in part is because the CTF program is not provided in a hospital setting but rather in a community center, making it much more appealing for many of the participants. The Community Services Department has been a longtime supporter of CTF and its programs. City staff wishes to ensure the CTF program continues to serve individuals that have suffered from cardiovascular disease and other medically-related conditions in Palo Alto at Cubberley. The renewal of this agreement is consistent with the provisions in the Council-adopted Public/Private Partnership Policy (Attachment B). This Joint Venture category of Public/Private Partnership exists, as CTF is an independent non-profit organization that offers much needed and appreciated services for the senior population in Palo Alto. In return the City provides CTF with gym space during low demand hours at a reduced rate. Resource Impact Annual revenue for the 2015 from CTF totals $30,420 for the long-term use of low demand space and hours at the Cubberley Community Center. Revenue to the City will increase annually by three percent (3%) consistent with the Cubberley agreement between the City of Palo Alto and PAUSD. Separate from the joint venture agreement, CTF also rents office space at City of Palo Alto Page 3 Cubberley Community Center at a rate of $540/month per the municipal fee schedule. Attachments: Attachment: Attachment A - Appendix L- Short Form Agreements for Revenue Contracts (DOC) Attachment: DRAFT SCOPE-COMPENSATION (DOC) Attachment: INSURANCE (DOCX) PURCHASING GUIDE – APPENDIX L PAGE 1 OF 4 Appendix L: Short Form Agreement for Revenue Contracts See next page for Forms and Instructions: PAGE 2 OF 4 APPEMDIX L – SHORT FORM AGREEMENTS FOR REVENUE CONTRACTS Short Form Agreement for Revenue Contracts Contract #: BY THIS AGREEMENT MADE AND ENTERED INTO ON THE 12 DAY OF January 2015 (date to be entered by the City) BY AND BETWEEN THE CITY OF PALO ALTO (“CITY”) AND Cardiac Therapy Foundation of the Midpeninsula, INC (“CONTRACTOR”), 4000 Middlefield Road, Suite G-8, Palo alto, Ca 94303-4739, 650-494-1300. IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES HERETO AGREE AS FOLLOWS: CONTRACTOR SHALL PROVIDE OR FURNISH THE FOLLOWING SPECIFIED AS SPECIFIED IN THE EXHIBITS NAMED BELOW EXHIBITS THE FOLLOWING ATTACHED EXHIBITS HEREBY ARE MADE PART OF THIS AGREEMENT: CONTRACT IS NOT COMPLETE UNLESS ALL EXHIBITS ARE ATTACHED Scope of Services General Condition Proof of Liability Insurance Gym Use and Allocation Policy Payment Plan and/or Schedule Will Contractor be in contact with minors and will they be handling food? Yes___ No X If YES, include and proof of negative TB testing and finger printing. TERM THE SERVICES FURNISHED UNDER THIS AGREEMENT SHALL COMMENCE ON January 1st 2014 AND SHALL BE COMPLETED BEFORE December 31, 2019 COMPENSATION FOR THE FULL PERFORMANCE OF THIS AGREEMENT and the Provision of the facilities and services CONTRACTOR SHALL PAY CITY: The total sum of $36,900 a year for 2015 (at $2,535 per month), which monthly payemt is due, in advance, within five (5) business days of the first day of each month; This includes (A) the sum of $2,535 per month for use of low demand space and hours at the Cubberley Community Center, and (B) the sum of $540 per month for the rental of office space at Cubberley. Compensation for gym space will increase yearly by three percent (3%) to coincide with the lease terms set up between PAUSD and The City of Palo Alto regarding Cubberley Community Center. Office space payemnts will be based on Municipal fee rates. PAYMENT RECORD (DEPARTMENT USE PAGE 3) CITY ACCOUNT NUMBER: COST CENTER GL ACCT PROJECT /INTERNAL ORDER PHASE NO. DOLLAR AMOUNT GENERAL TERMS AND CONDITIONS ARE INCLUDED ON ALL THREE PAGES OF THIS AGREEMENT. . HOLD HARMLESS. CONTRACTOR shall indemnify, defend and hold harmless CITY, its Council Members, officers, employees, and agents from any and all demands, claims or liability of any nature, including wrongful death, caused by or arising out of CONTRACTOR’S, its officers’, directors’, employees’ or agents’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which the law imposes strict liability on CONTRACTOR in the performance of or failure to perform this agreement by CONTRACTOR. PURCHASING GUIDE – APPENDIX L PAGE 3 OF 4 ENTIRE AGREEMENT. This agreement and the terms and conditions on the following pages represent the entire agreement between the parties with respect to the purchase and sale of the goods, equipment, materials or supplies or payment for services which may be the subject of this agreement. All prior agreements, representations, statements, negotiations and undertakings whether oral or written are superseded hereby. THIS AGREEMENT SHALL BECOME EFFECTIVE UPON ITS APPROVAL AND EXECUTION BY CITY. IN WITNESS THEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT THE DAY, MONTH, AND YEAR FIRST WRITTEN ABOVE. PROJECT MANAGER AND REPRESENTATIVE CONTRACTOR FOR CITY NAME Rob De Geus_________________________ BY _________________________________ DEPTRecreation, Community Services Dept. TITLE _____________________________________________ P.O, BOX 10250 PALO ALTO, CA 94303 __________________________________ Telephone 650-329-2639 INVOICING SEND ALL INVOICES TO THE CITY, ATTN: PROJECT MANAGER CITY OF PALO ALTO APPROVALS: (ROUTE FOR SIGNATURES ACCORDING TO NUMBERS IN APPROVAL BOXES BELOW) CITY DEPARTMENT Funds Have Been Budgeted (1) PURCHASING & CONTRACT ADMINISTRATION INSURANCE REVIEW (2) APPROVAL OVER $25,000 (3) PURCHASING MANAGER APPROVAL OVER $25,000 APPROVAL OVER $85,000 CITY OF PALO ALTO BY:_____________________________________ CITY ATTORNEY ATTEST: BY:________________________ _______________________ MAYOR CITY CLERK PAGE 4 OF 4 APPEMDIX L – SHORT FORM AGREEMENTS FOR REVENUE CONTRACTS CITY OF PALO ALTO GENERAL TERMS AND CONDITIONS A. ACCEPTANCE. This agreement is limited to the terms and conditions on pages 1, 2, and 3 hereof which includes any exhibits referenced. B. GOVERNING LAW. This agreement shall be governed by the laws of the state of California. C. INTEREST OF CONTRACTOR. It is understood and agreed that this agreement is not a contract of employment in the sense that the relation of master and servant exists between the CITY and undersigned. At all times CONRACTOR shall be deemed to be an independent contractor and CONTRACTOR is not authorized to bind CITY to any contracts or other obligations. In executing this agreement, CONTRACTOR certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. D. INSURANCE. CONTRACTOR agrees to provide the insurance specified in the “Insurance Requirements” form attached hereto as Exhibit C. In the event CONTRACTOR is unable to secure a policy endorsement naming the City of Palo Alto as an additional insured under any comprehensive general liability or comprehensive automobile policy or policies, CONTRACTOR shall at a minimum, and only with the written approval of City’s Risk Manager or designee, cause each such insurance policy obtained by it to contain an endorsement providing that the insurer waives all right of recovery by way of subrogation against CITY, its officers, agents, and employees in connection with any damage, claim, liability personal injury, or wrongful death covered by any such policy. Each such policy obtained by CONTRACTOR shall contain an endorsement requiring thirty (30) days' written notice from the insurer to CITY before cancellation or reduction in the coverage or limits of such policy. CONTRACTOR shall provide certificates of such policies or other evidence of coverage satisfactory to City's Risk Manager, together with evidence of payment of premiums, to CITY at the commencement of this agreement, and on renewal of the policy, or policies, not later than twenty (20) days before expiration of the terms of any such policy. E. TERMINATION. This agreement may be terminated by CITY upon ten (10) days written notice to CONTRACTOR. Monies then owing based upon work satisfactorily accomplished shall be paid to CONTRACTOR. F. CHANGES. This agreement shall not be assigned or transferred without the written consent of the CITY. No changes or variations of any kind are authorized without the written consent of the City Manager or his or her designee. G. AUDITS. CONTRACTOR agrees to permit CITY to audit, at any reasonable time during the term of this agreement and for three (3) years thereafter, CONTRACTOR'S records pertaining to matters covered by this agreement. CONTRACTOR further agrees to maintain such records for at least three (3) years after the term of this agreement. H. NO IMPLIED WAIVER. No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this agreement. I. CITY'S PROPERTY. Title to CITY’s property furnished to CONTRACTOR shall remain in the CITY. CONTRACTOR shall not alter or use property for any purpose, other than that specified by CITY, or for any other person without the prior written consent of CITY. CONTRACTOR shall store, protect, preserve, repair and maintain such property in accordance with sound professional practice, all at CONTRACTOR’s expense. J. NON-DISCRIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, age, ancestry, religion or sex of such person. CONTRACTOR agrees to meet all requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment. K. WARRANTY. CONTRACTOR expressly warrants that all materials and services covered by this agreement shall conform to the specifications, requirements, instructions, or other descriptions upon which this agreement is based, shall be fit and sufficient for the purpose intended, of good materials and workmanship and free from defect and that materials and services of CONTRACTOR’S design will be free from defect in design. Inspection, test, acceptance, payment or use of the goods furnished hereunder shall not affect the CONTRACTOR’S obligation under this warranty, and such warranties shall survive inspection, test acceptance and use. CONTRACTOR agrees to replace, restore, or correct defects of any materials or services not conforming to the foregoing warranty promptly. Without expense to CITY, when notified of such nonconformity by CITY, in the event of failure by CONTRACTOR to correct defects in or replace nonconforming goods or service promptly, CITY, after reasonable notice to CONTRACTOR, may make such corrections or replace such materials or services and charge contractor for the cost incurred by the CITY thereby. L. WORKERS’ COMPENSATION. CONTRACTOR, by executing this agreement, certifies that it is aware of the provisions of the labor code of the state of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and certifies that it will comply with such provisions before commencing the performance of the work of this agreement. M. PRICE TERMS. (a) Extra charges, invoices and payment. No extra charges of any kind will be allowed unless specifically agreed to in writing by CITY. All state and federal excise, sales and use taxes shall be stated separately on the invoices. (b) Transportation charges. Any transportation charges with respect to which CONTRACTOR is entitled to receive reimbursement shall be added to CONTRAACTOR’S invoice as a separate item, with the receipted freight bill attached thereto. (c) CONTRACTOR warrants that the prices for materials or services sold to CITY under this agreement are not less favorable than those currently extended to any other customers of the same or like articles or services in equal or less quantities. In event CONTRACTOR reduces its price for such materials or services during the term of this agreement, CONTRACTOR agrees to reduce the prices or rates hereof correspondingly. N. SCHEDULES OR DELIVERY. Time is of the essence of this agreement. CONTRACTOR agrees to comply with the specific schedule provided by the CITY or agreed upon herein without delay and without anticipating CITY’S requirements. CONTRACTOR also agrees not to make material commitments or scheduling arrangements in excess of the required amount or in advance of the time necessary to meet the schedule(s) of this agreement, if any. O. TRANSPORTATION, PACKAGING & LABELING. All materials or services are to be provided: (a) F.O.B.,Palo Alto unless otherwise specified; (b) with a packing list enclosed in cartons, which indicate the agreement number, exact quantity and descriptions, concerning any materials shipments; (c) and comply with current packaging and labeling requirements prescribed by D.O.T. DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 EXHIBIT “A” SCOPE OF SERVICES As a formally declared “joint venture” partner of the City, CONTRACTOR shall provide classes, programs and services related to its program for the benefit of resident and non-resident doctor referred participants having cardiovascular disease and other medically-related conditions. In the provision of these therapeutic services, CONTRACT shall: (1) Abide by the policies/procedures established by the CITY and the CITY'S Recreation Division of the Department of Community Services for the use of the CITY's facilities, equipment, furniture, and other Gym A and Gym Activity Room elements. These shall include, but are not limited to, the City of Palo Alto Injury and Prevention program, Operations Manual, Safety Procedures and Guidelines, and Building Emergency Procedures. (2) Obtain, supervise, and pay all necessary related fees for the services of all professional assistance needed to produce such programs operated by it. (3) Pay all fees and costs for materials, supplies and other fees and expenses connected with said programs. (4) Collect from program participants fees set by CONTRACTOR for all services rendered by it. CONTRACTOR shall set its own fee schedule and shall provide the CITY with a copy of its program and class fee schedule. (5) Be solely responsible for the control and supervision of all program activities and personnel connected therewith and shall notify all personnel of their obligations and responsibilities pertaining to their program area. CONTRACTOR will have primary responsibility for building security when CONTRACTOR is occupying the CITY's facilities. (6) Accommodate other uses of the Gym facility and Gym Activity Room, including, but not limited to, Gym A and the lobby during periods of non-use of the programs. The CITY DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 shall notify CONTRACTOR of such other uses. CONTRACTOR shall provide personnel for any moving of CONTRACTOR'S equipment. (7) Also designate as its Project Director or his/her designee (the "Project Director") for the term or duration of this Agreement an employee or subcontractor to manage or supervise on behalf of CONTRACTOR, including production, and served as CONTRACTOR'S liaison with the CITY's Project Manager or his/her designee (the "Project Manager") in all matters relating to the CITY in any manner. (8) Exercise safe practices in the use of the CITY's facilities and equipment, maintain and clear work areas, and within 24 hours of an incident, report in a form to be provided by the CITY, such information regarding the incident. Immediately report to the Project Manager on the same form any breakage, malfunction, deterioration or loss of any of the CITY'S resources. CONTRACTOR shall not attempt to repair any of the CITY's equipment used by CONTRACTOR in accordance with this Agreement. CONTRACTOR shall immediately discontinue any activity whenever an unsafe or dangerous condition is deemed to exist. CONTRACTOR shall train and supervise its staff and volunteers on safe practices and adhere to the CITY'S safety procedures and guidelines. If, in the opinion of any duly authorized CITY employee, CONTRACTOR is conducting an activity in an unsafe manner, CONTRACTOR or its agents shall be informed and shall immediately discontinue such activity until such activity is able to be conducted in a safe manner approved by the CITY's staff. (9) Promote and publicize all of its programs, and shall print in all publicity, including, but not limited to, publications, mailings, flyers, posters, brochures, programs, and paid or public service advertising, the statement, "In cooperation with the City of Palo Alto Community Services Department." In conformance with the Americans with Disabilities Act of 1990 (ADA) guidelines and requirements, CONTRACTOR shall bear responsibility for providing appropriate auxiliary aids and services where they are necessary to DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 achieve an equal opportunity to participate in and enjoy the benefits of classes and programs of CONTRACTOR under this Agreement. Newly printed programs shall include the following statement required by the ADA: "Persons with disabilities who require information on 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: ADA Coordinator, City of Palo Alto, 650-329- 2550 (Voice) or adacityofpaloalto.org (Internet)." (10) Continue to exist as an independent, non-profit corporation under the laws of the United States and the State of California. Any changes in CONTRACTOR's Articles of Incorporation, By-Laws, or tax-exempt status shall be reported by CONTRACTOR immediately to the Project Manager. Not more than twenty-five percent (25%) of the persons serving on the governing board of CONTRACTOR may be interested persons. An "interested person" means any person currently being compensated by CONTRACTOR for services rendered to it, whether as a full or part-time employee, independent contractor or otherwise, but excluding any reasonable compensation paid to a director for services rendered in the capacity of a director. (11) Submit all new signs or displays to be located on the Cubberley premises to the Project Manager for approval. Inside the Gym and Gym Activity Room, no display materials may be permanently placed by CONTRACTOR upon walls. A display may only be placed in a manner that all fasteners thereto can be removed at the time that any such display will be taken down. (12) Assure that Gym A and the Gym Activity Room, hallways and outdoor areas adjacent to the DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 Gym will be cleared and clean, and that scenery, properties, and other program equipment will be disassembled and stored, to the Project Manager's satisfaction, within 30 minutes after the end of the last class of the day or in accordance with a time schedule mutually agreed upon by the parties' designated representatives. The Gym and Gym Activity Room shall always be returned to its basic set-up as established by the Project Manager, unless there is a mutual understanding with the incoming group, which agrees to perform this duty, which has been approved by the Project Manager. (13) Leave all spaces clear, clean and orderly at the end of each use. The Gym, foyer and Gym Activity Room are to be cleared of all materials, except Gym equipment, after each daily use. Trash and recycling are to be removed from all areas daily. Recyclables are to be put in the recycling carts near the trash dumpster and garbage and trash are to be put into the dumpster. CONTRACTOR is required to reduce waste, reuse and recycle per the CITY's Zero Waste Plan. Office space and hallways are to be kept continually clear, clean and orderly and neither space shall be used for the purpose of equipment storage. Materials may not be left or stored any place out-of-doors overnight or when unattended by CONTRACTOR personnel. (14) Enforce current regulations as established by the CITY with regard to any smoking, eating and drinking in the CITY's facilities. CONTRACTOR shall provide staff and/or volunteers, who will enforce such regulations. Smoking is not permitted inside any CITY facility. Except as may be permitted by applicable law, no person shall bring any animal into the Gym or Gym Activity Room. This regulation shall not apply to service animals assisting individuals with disabilities or to animals in training to become service animals. CONTRACTOR shall clean up all food and drink containers daily after use. (15) Observe all provisions of this Agreement when it is using the CITY's facilities, including Gym A and the Gym Activity Room. This shall include cleaning the rooms, DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 returning tables and chairs to their initial locations, and depositing all trash and recycling in the appropriate receptacles. (16) Comply with the CITY's TB test requirement for employees and volunteers of CONTRACTOR at any time the CITY's Risk Manager deems it necessary for minors. (17) Comply with the CITY's sound ordinance levels for any outdoor activities. (18) Pay Building Attendant fees as set forth in the Municipal Fee Schedule for any Attendants who may be required for the use of the CITY's facilities. All building use policies must be adhered to for any CITY facility use by CONTRACTOR. (19) In accordance with the terms of the CITY's Gym Use and Allocation Policy (Exhibit E), CONTRACTOR shall abide by the following class schedule in Gym A (non-prime time use): Monday 7:00 am to 12:00 pm (Classes 7:30 am to 11:45 am) Tuesday 6:30 am to 8:30 am (Classes 7:00 am to 8:00 am) Wednesday 7:00 am to 12:00 pm (Classes 7:30 am to 11 :45 am) Thursday 6:30 am to 12:00 pm (Classes 7:00 am to 11 :45 am) Friday 7:00 am to 9:00 am (Classes 7:30 am to 8:30 am) Saturday 6:30 am to 8:30 am (Classes 7:00 am to 8:00 am) In addition, CONTRACTOR shall abide by the following class schedule in the Gym Activity Room: DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 Monday 5:00 pm to 7:00 pm (Classes 5:30 pm to 6:30 pm) Tuesday 5:00 pm to 7:00 pm (Classes 5:30 pm to 6:30 pm) Wednesday 5:00 pm to 7:00 pm (Classes 5:30 pm to 6:30 pm) Thursday 5:00 pm to 7:00 pm (Classes 5:30 pm to 6:30 pm) This schedule shall be inclusive of all time necessary to set-up and to take-down the equipment necessary to run the class or program and for necessary clean-up. The CITY anticipates CONTRACTOR may operate its classes and programs 52 weeks per year. If CONTRACTOR does not intend to use any of the CITY's facilities during any portion ofthe year, the Project Director shall inform the Program Manager of any planned vacation or other non-use period relating to the CITY facilities. (20) Provide staff oversight for every class or program whenever the public is in attendance. CONTRACTOR shall permit only persons who have been trained in medical emergency, safety and use procedures to supervise cardiac therapy programs. Staff must be available to assist participants under all circumstances and must be aware of and able to assist disabled persons. The Project Director must also be available to assist in emergency situations throughout the entire program until participants have left the premises. Staff must ensure that wheelchairs, walkers, etc. are not blocking any of the aisles or exits. (21) CONTRACTOR-owned materials will remain the property of CONTRACTOR, and shall be removed from Gym A and the Gym Activity Room at the conclusion of the program in which the DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 Materials and equipment are used. The Project Manager may, on a case-by-case basis, authorize exceptions, in writing, for that occasion only, except as may be otherwise stated. All office equipment and/or exercise equipment purchased and owned by CONTRACTOR will remain the private property of CONTRACTOR, and the CITY assumes no responsibility or liability for the loss or maintenance of such materials. All equipment, instruments and any other materials rented, borrowed or owned by any subcontractor, agent or person for CONTRACTOR is the responsibility of CONTRACTOR and/or its subcontractors, and the CITY assumes no responsibility or liability for its maintenance or loss. (22) Be required to replace or have repaired by factory authorized Technicians CITY - owned Equipment or materials identified by the Project Manager as property that is lost, damaged or destroyed by an agent of CONTRACTOR while the same was in the possession of CONTRACTOR. A written report must be made by CONTRACTOR on a CITY form, whenever CITY equipment is lost, damaged, or destroyed by CONTRACTOR. (23) May use Gym facilities and equipment and Gym Activity Room only for productions expressly covered under this Agreement. Exceptions may be considered by the Project Manager upon the receipt of CONTRACTOR's written request at least fifteen (15) days prior to the date needed and, if granted, will be approved, in writing, by the Project Manager. (24) Shall not in any way modify the CITY's facilities and may not install or attach anything in, to or on the CITY's facilities without having first submitted a written request to, and obtained the approval of, the Project Manager. Any violation shall result in CONTRACTOR being charged for all repairs necessary to restore the facility to its original condition and any additional costs pertaining to the restoration of the CITY's property. (25) Shall immediately report to the City of Palo Alto police any incidents of a criminal or suspicious nature occurring on the CITY's property and notify the Project Manager DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 within 12 hours. If the initial notification is given verbally, then it must also be submitted, in writing, to the Project Manager on the form provided. (26) The doors to Gym A and foyer and the Gym Activity Room, as well as any other exterior access doors to any area of the Cubberley Gym, shall not be left open, unlocked or with the locking mechanism disabled at any time, when the immediate area secured by the door is unoccupied by CONTRACTOR. (27) Must fill out a CITY Report of Accident/Property Damage report for any and all accidents, injuries or property damage, if a CITY employee is not present to fill out the report. (28) Shall avoid the use of "disposables" containers and refrain from using Styrofoam™ and other plastic containers that are used for food/beverage service. Reusable food/beverage service ware should be utilized by CONTRACTOR to the maximum extent practicable. Where a reusable food/beverage service option is not available, CONTRACTOR shall choose items that are recyclable. (29) CONTRACTOR shall comply with all applicable federal, state and local laws at all times during the term of this Agreement. THE CITY SHALL: (1) Allow CONTRACTOR the use of Gym A and the Gym Activity Room as scheduled in Exhibit A, Subsection 19 for the preparation and presentation of CONTRACTOR's classes and programs to be performed under this Agreement. Any use ofthe CITY's facilities other than that those listed in this Agreement that are necessary to carry out CONTRACTOR's rights under this Agreement must be scheduled through and approved in advance by the Project Manager. No class shall begin earlier than 7:00 a.m. or shall end later than 6:30 p.m. In no event shall CONTRACTOR conduct other activities, or otherwise occupy the CITY's facilities outside of the designated hours, unless the prior written permission of the Project Manager is obtained. CONTRACTOR shall observe all facility security rules and regulations as established by the CITY. The City will provide lighting, door locks and supervision of facilities to help ensure the safety and security of used gyms, walkways and other facilities. DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 (2) Additional use may be provided, as specified in Exhibit A above, however, priority use of the Gym will always be given to programs and classes that are covered by contracts with the CITY. The CITY will not be responsible for obtaining additional space, but it may assist in locating other CITY spaces and may act as co-sponsor for use of the CITY's facilities under appropriate circumstances. The CITY reserves the right to allow other uses of space that are not in actual, scheduled use by CONTRACTOR. (3) Allow CONTRACTOR to use all operational equipment in the CITY'S Gym A and Gym Activity Room inventory as requested by CONTRACTOR and approved by the CITY. CONTRACTOR accepts the CITY's equipment in their "as is" condition, and CONTRACTOR will be responsible for ensuring that such equipment is used and maintained in a safe condition and is returned in working condition, normal wear and tear excepted, at the conclusion of its use or of the program. (4) Monitor all aspects of the program relative to safety. If the Project Manager deems that any procedure to be followed by CONTRACTOR is unsafe, then the Project Manager has the authority to immediately cause CONTRACTOR to stop implementing such procedure. The CITY shall not interfere, however, with the medical management or supervision of any program participant. (5) Provide maintenance of the CITY's facilities and equipment. The CITY shall respond with reasonable speed to make necessary repairs hereunder. The CITY retains the right to close the building for maintenance or repairs, including, but not limited, to the refinishing of floors, with adequate notice to the Project Director. The CITY will be responsible for providing maintenance of the fixtures, lights, and other appliances for the use of CONTRACTOR and program participants. The CITY will also be responsive to reports of broken locks, doors, windows, heating equipment or water fountains for the security and safety of CONTRACTOR and program participants. The CITY will provide janitorial services necessary to clean facilities and restrooms for the benefit of the program participants. (6) Have the right to, without notice, suspend this Agreement in the event of a force majeure or otherwise if the CITY's Gym A, Gym Activity Room or other building should be declared uninhabitable for reasons of safety by the proper authorities (e. g., if the building should be damaged in an earthquake and be declared unsafe for occupancy). If there is an outbreak of pandemic flu or other medical emergency and places of public gatherings are closed, the CITY will not assume any financial responsibility for loss of revenue by CONTRACTOR. If the Gym A, Gym Activity Room and ancillary facilities are not available for use due to earthquake, other disaster, or safety related issues, the CITY will not assume any financial responsibility for loss of revenue by CONTRACTOR. PROGRAM FEES (1) CONTRACTOR shall set fees for their classes, will collect the fees directly from program participants, and shall retain all proceeds from the class and program fees. (2) CONTRACTOR may request the CITY's permission to add classes and programs, consistent with the constraints, express or implied, of the Gym Use and Allocation Policy, in response to public need. CONTRACTOR shall be required to pay regular hourly DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 rates and pay for any and all added classes and/or programs at fees set forth in the CITY'S Municipal Fee Schedule (Regular weekly, non-profit rate is subject to a discount that may be authorized by the Director of the Community Services Department). GENERAL UNDERSTANDINGS (1) CITY. The Division Manager, Recreation Division is designated as the Project Manager for the CITY, who shall render overall supervision of the progress and performance of this Agreement by the CITY. All services to be performed by the CITY under this Agreement shall be managed under the overall supervision of the Project Manager. CONTRACTOR shall collaborate with the Project Manager in all matters dealing with the CITY's policies, facilities, equipment and other CITY departments outside of the Cubberley Community Center. (2) CONTRACTOR. CONTRACTOR shall assign a Project Director, who shall have overall responsibility for the progress and execution of this Agreement by CONTRACTOR. Should circumstances or condition subsequent to the execution of this Agreement require a substitute Project Director, CONTRACTOR shall notify the CITY immediately of such occurrence. The Project Director shall be responsible for all actions of CONTRACTOR, including its staff. The Project Director shall also be responsible for all communications and information that are delivered to and obtained from the CITY and CONTRACTOR'S personnel. (3) ACCESS. CONTRACTOR shall not prevent the Project Manager, facility maintenance personnel, and others specifically designated by the Project Manager from gaining unfettered access to the Gym and Gym Activity Room facilities. The Project Manager and others specifically designated by the Project Manager shall attempt to coordinate such access, if possible. (4) SPECIFIC SERVICES. CONTRACTOR shall provide all specified services as set forth herein, for the production of classes and programs as listed in and on the dates specified in Exhibit A. (5) The term "fiscal year" shall mean July 1 to June 30, although CONTRACTOR is not required to use the same period for its own record-keeping and reporting purposes. (6) The term "days" shall mean calendar days. (7) CONTRACTOR represents that it is qualified to furnish its services as described in this Agreement, and it shall be responsible for the performance of this Agreement. FISCAL RESPONSIBILITIES OF CONTRACTOR (1) Fiscal Agent. CONTRACTOR shall appoint a fiscal agent, who shall be responsible for the financial and accounting activities of CONTRACTOR, including the receipt and disbursement of CONTRACTOR's funds. CONTRACTOR shall provide the CITY with the name of a fiscal agent and notify the Project Manager within 24 hours of any changes occurring during the term of this agreement. CONTRACTOR shall have sole responsibility for the safekeeping of its class and program receipts and monies. DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 (2) Financial Record. In support of its system of accounts, CONTRACTOR shall maintain complete and accurate records of all financial transactions, including, but not limited to, contracts, invoices, time cards, cash receipts, vouchers, canceled checks, and bank statements. These records shall be made available to the CITY upon request subject to applicable laws relating to the privacy rights of program participants. PROGRAM REPORTS AND RECORDS (1) Production Reports. CONTRACTOR shall keep accurate records of and shall file with Project Manager any and all Program Reports within thirty (30) days following the end of each class term period, listing the number of classes and/or programs, and the number of program participants (identified separately as resident and non-resident participants). CONTRACTOR shall make every reasonable effort to supply such other information as the Project Manager and/or City Auditor may request subject to applicable laws relating to the privacy rights of program participants. On reasonable notice and with reasons specified, CONTRACTOR shall grant the Project Manager and/or City Auditor access to all of CONTRACTOR's records relating to this Agreement, including program records, data, statements, and reports. (2) Evaluation of services. CONTRACTOR shall furnish all data, statements, records, information, and reports requested by the CITY to monitor, review, and evaluate the performance of CONTRACTOR'S services hereunder. (3) A copy of CONTRACTOR'S most recently filed California State Tax Form 199, "California Exempt Organizations Annual Information Return," must be filed with the Project Manager within fifteen (15) days of the date on which it is required to be submitted to the State of California, and it shall also be attached to this Agreement prior to final approval of this Agreement. CORRECTIVE ACTION REQUIREMENT Notwithstanding the requirements of this Agreement, in the event the CITY should determine from any source, including, but not limited to, reports submitted by CONTRACTOR under this Agreement or any evaluation report from any source, that there is a condition which requires correction, the CITY may forward to CONTRACTOR a request for corrective action. Such request shall indicate the nature of the condition(s) or issue(s), which require(s) corrective action and may include a recommendation as to appropriate corrective action. Within fifteen (15) days of the CITY'S request, CONTRACTOR shall submit its response which shall include its position on the matter and proposed action, if any. Upon the request of either party, the parties shall meet within five (5) days thereafter to discuss the CONTRACTOR's position and proposed corrective action. CONTRACTS WITH OTHER AGENCIES DRAFT SCOPE-COMPENSATION.DOC REVISED 10/1/2013 CONTRACTOR agrees not to enter into any contract with another person or agency that will materially interfere with or inhibit the full performance of the services to be provided by CONTRACTOR under this Agreement. CONTRACTOR agrees to terminate as soon as legally feasible any contract which will materially interfere with or inhibit the full performance of the services to be provided by CONTRACTOR to the CITY under this Agreement. Nothing herein is intended to prohibit CONTRACTOR from applying for, and receiving, supplementary funding from other than CITY sources, provided that any agreement required for such funding does not materially interfere with or inhibit the full performance of the services to be provided by CONTRACTOR under this Agreement. SUBCONTRACTORS AS EMPLOYEES CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by the CITY as an independent contractor, as such subcontractor shall be deemed to be an employee of CONTRACTOR, and CONTRACTOR agrees to be responsible for their subcontractor's performance. CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees, participants, volunteers, and subcontractors, if any, and shall keep the work under its control. INTOXICATION CONTRACTOR shall be responsible for any injuries, liabilities, loss or damage caused by any of its employees, agents, subcontractors, or volunteers who are present on CITY property and are under the influence of alcohol, drugs, hallucinogens or narcotics, whether or not legally prescribed. CONTRACTOR as well as the CITY shall not permit any of CONTRACTOR'S employees, agents, subcontractors, or volunteers discovered to be under the influence as described above from remaining in and using any CITY facility contemplated by this Agreement. The CITY reserves the right to deny any such person the right to enjoy further participation in contracted activities. The consumption of alcoholic beverages and the use of illegal drugs by any person working for CONTRACTOR, whether that person is paid or is a volunteer, shall be expressly prohibited. This includes all staff of CONTRACTOR while they are present at the Cubberley Community Center or any other CITY facility in connection with this Agreement. INSURANCE. Lessee's responsibility for the Property begins immediately upon delivery and Lessee, at its sole cost and expense, and at no cost to City, shall purchase and maintain in full force and effect during the entire term of this Lease insurance coverage in amounts and in a form acceptable to City as set forth in Exhibit C attached hereto and incorporated herein by reference. Said policies shall be maintained with respect to Lessee’s employees, if any, and all vehicles operated on the Premises. The policies shall include the required endorsements, certificates of insurance and coverage verifications as described in Exhibit D. Lessee also agrees to secure renter's liability insurance. Lessee shall deposit with the City Manager, on or before the effective date of this Lease, certificates of insurance necessary to satisfy City that the insurance provisions of this Lease have been complied with, and to keep such insurance in effect and the certificates therefore on deposit with City during the entire term of this Lease. Should Lessee not provide evidence of such required coverage at least three (3) days prior to the expiration of any existing insurance coverage, City may purchase such insurance, on behalf of and at the expense of Lessee to provide six months of coverage. City shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the City’s Risk Manager (or comparable official), the insurance provisions in this Lease do not provide adequate protection for City and for members of the public using the Premises, the City Manager may require Lessee to obtain insurance sufficient in coverage, form, and amount to provide adequate protection as determined by the Risk Manager. City's requirements shall be reasonable and shall be designed to assure protection from and against the kind and extent of risk that exists at the time a change in insurance is required. The City Manager shall notify Lessee in writing of changes in the insurance requirements. If Lessee does not deposit copies of acceptable insurance policies with City incorporating such changes within sixty (60) days of receipt of such notice, or in the event Lessee fails to maintain in effect any required insurance coverage, Lessee shall be in default under this lease without further notice to Lessee. Such failure shall constitute a material breach and shall be grounds for immediate termination of this Lease at the option of City. The procuring of such required policy or policies of insurance shall not be construed to limit Lessee’s liability hereunder nor to fulfill the indemnification provision and requirements of this Lease. Notwithstanding the policy or policies of insurance, Lessee shall be obligated for the full and total amount of any damage, injury, or loss caused by or connected with this Lease or with use or occupancy of the Premises, except to the extent caused by the active negligence or willful misconduct of City or City’s officers, agents, contractors, volunteers, and employees. 26. NON-DISCRIMINATION 26.1 Non-discrimination in Lease Activities. Lessee agrees that in the performance of this Lease and in connection with all of the activities Lessee conducts on the Premises, it shall not discriminate against any employee or 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. Lessee acknowledges that is familiar with the provisions set forth in Section 2.30.510 of the Palo Alto Municipal Code relating to nondiscrimination in employment and Section 9.73 of the Palo Alto Municipal Code relating to City policy against arbitrary discrimination. 26.2 Human Rights Policy. In connection with all activities that are conducted upon the Premises, Lessee agrees to accept and enforce the statements of policy set forth in Section 9.73.010 which provides: “It is the policy of the City of Palo Alto to affirm, support and protect the human rights of every person within its jurisdiction. These rights include, but are not limited to, equal economic, political, and educational opportunity; equal accommodations in all business establishments in the city; and equal service and protection by all public agencies of the city.” City of Palo Alto (ID # 5385) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Annual Status Report Development Impact Fees FY 2014 Title: Review and Acceptance of Annual Status Report on Development Impact Fees for Fiscal Year 2014 From: City Manager Lead Department: Administrative Services Recommendation Staff recommends that Council review and accept the Annual Report on Development Impact Fees for the year ending June 30, 2014 (Attachment A). Background State law (Government Code Section 66006) requires that each local agency that imposes development impact fees prepare an annual report providing specific information about those fees. This requirement is part of the law commonly referred to as AB 1600. It codifies the legal requirement that fees on new development must have the proper nexus to any project on which they are imposed. In addition, AB 1600 imposes certain accounting and reporting requirements with respect to the fees collected. The fees, for accounting purposes, must be segregated from the general funds of the City and from other funds or accounts containing fees collected for other improvements. Interest on each development fee fund or account must be credited to that fund or account and used only for the purposes for which the fees were collected. Government Code Section 66006 contains comprehensive annual reporting requirements for development impact fees. This statute requires that, within 180 days after the close of the fiscal year, the agency that collected the fees must make available to the public the following information regarding each fund or account: Brief description of the type of fee in the fund. Amount of the fee. Beginning and ending balance in the fund. City of Palo Alto Page 2 Amount of fees collected and interest earned. Identification of each public improvement on which fees were expended and the amount of the expenditure on each improvement, including the total percentage of the cost of the public improvement that was funded with fees. Identification of an approximate date by which the construction of a public improvement will commence, if the local agency determines that sufficient funds have been collected to complete financing on an incomplete public improvement. Description of each interfund transfer or loan made from the account or fund, including the public improvement on which the loaned funds will be expended, and in the case of an interfund loan, the date on which the loan will be repaid and the rate of interest that the account or fund will receive on the loan. Amount of any refunds made due to inability to expend fees within the required time frame. This report must also be reviewed by the City Council at a regularly scheduled public meeting not less than 15 days after the information is made available to the public. In addition, notice of the time and place of the meeting shall be mailed at least 15 days prior to the meeting to any interested party who files a written request with the local agency for such a mailed notice. An early packet consisting of Exhibit A only was made available to the public and included in the packet for the December 1, 2014 meeting of the City Council. The law also provides that, for the fifth fiscal year following the first deposit into the fund and every five years thereafter, the local agency shall make findings with respect to any portion of the fee remaining unexpended, whether committed or uncommitted. The finding must: identify the purpose to which the fee is to be put; demonstrate a nexus between the fee and the purpose for which it was originally charged; and identify all sources and amounts of funding anticipated to complete financing of incomplete improvements along with the approximate dates on which the anticipated funding is expected to be deposited into the fund. If the agency no longer needs the funds for the purposes collected, or if the agency fails to make required findings, or to perform certain administrative tasks prescribed by AB 1600, the agency may be required to refund to property owners a prorated portion of the monies collected for that project and any interest earned on those funds. City of Palo Alto Page 3 Discussion The City of Palo Alto development fees covered by AB 1600, and documented in Attachment A, include the following: Stanford Research Park/El Camino Real traffic impact fees (PAMC Ch. 16.45): Fee for new nonresidential development in the Stanford Research Park/El Camino Real Service Commercial zone, to fund capacity improvements at eight intersections. San Antonio/West Bayshore Area traffic impact fees (PAMC Ch. 16.46): Fee for new nonresidential development in the San Antonio/West Bayshore area to fund capacity improvements at four intersections. Housing impact fees imposed on commercial developments (PAMC Ch. 16.47): Fee on commercial and industrial development to contribute to programs that increase the City's low income and moderate-income housing stock. Parking in-lieu fees for University Avenue Parking District (PAMC Ch. 16.57): Fee on new non-residential development in the University Avenue Parking Assessment District in lieu of providing required parking spaces. Parks, Community Centers, and Libraries impact fees (PAMC Ch. 16.58): Fee on new residential and non-residential development to provide community facility funds for parks, community centers and libraries. Residential housing in-lieu fees (PAMC Ch. 16.47): Fee on residential developments in- lieu of providing required below-market rate units to low and moderate income households. Parkland dedication fees (Quimby Act) (California Government Code Section 66477): Fees or parkland dedication imposed on new residential and non-residential development. Charleston-Arastradero Corridor pedestrian and bicyclist safety fees (PAMC Ch. 16.59): Fee on new development and re-development within the Charleston-Arastradero Corridor to provide for pedestrian and bicyclist improvements. Citywide Transportation impact fee (PAMC Ch 16.59): Fee on development in all parts of the City to fund transportation projects and programs to reduce congestion. Water and sewer capacity fees (California Government Code Section 66000): Fee on developments adding load to water and sewer systems. City of Palo Alto Page 4 AB 1600 requires the City to make specified findings in the event any funds are not expended within five fiscal years of collection and every five years thereafter. While there are several funds containing collected fees that have not been expended in five years, the required statutory carryover findings have already been made for those funds and no further findings are required. Resource Impact Council approved the required findings with respect to unexpended fees in fiscal years 2012 and 2013. There are no required findings for fiscal year 2014. The next finding date will be fiscal year 2017, and the unexpended balances for each fee type are noted at the bottom of each section in Attachment A. Attachments: Attachment A: Development Impact Fees (XLS) Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 Stanford Research Park/San Antonio/West FUND El Camino Fund Bayshore Fund Purpose and Authority Traffic impact fees imposed on new Traffic impact fees imposed on new for Collection nonresidential development in the nonresidential development in the Stanford Research Park/El Camino San Antonio/West Bayshore Areas Real CS zone to fund improvements to fund capacity improvements at at eight identified intersections.four identified intersections. PAMC Ch. 16.45 PAMC Ch. 16.46 Amount of the Fee $11.08 per square foot $2.28 per square foot Fund Balance July 1, 2013 $3,846,516 $829,217 Activity in 2013-14 Revenues Fees Collected 41,334 0 Interest Earnings 80,974 17,715 Unrealized Gain/Loss Investments 8,388 1,887 Transfer In from Gas Tax Fund Transfer In from CIP Fund -------------------------------------------------------------------------------------------------------------------- Total Revenues $130,696 $19,602 Expenditures Inter-agency expenses (410,000)0 Transfer to CIP Fund (75,000)0 -------------------------------------------------------------------------------------------------------------------- Total Expenditures (485,000)0 -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2014 $3,492,212 $848,819 Other Commitments/AppropriationsReserve for unrealized gain on investments (24,291)(5,398)-------------------------------------------------------------------------------------------------------------------- Net Funds Available $3,467,921 $843,421 Unexpended balance at next finding date (FY 2017-18)$3,337,225 $823,819 USE OF FEES:USE OF FEES: Expenditures of funds have been made in Fiscal Year 2014 for $75K to PL-12000 (Page Mill Road) and for $410 K to County of Santa Clara for cost sharing of improvements on Oregon Expressway. No expenditures have been made from this fund in Fiscal Year 2014. Page 1 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 University Avenue Commercial Housing Parking Assessment District FUND In-Lieu Fund In-Lieu Fund Purpose and Authority Fees imposed on large commercial Fees collected from non-residential for Collection and industrial development to development within the University Ave. contribute to programs that increase Parking Assessment District in lieu of the City's low income and moderate-providing the required number of income housing stock.parking spaces. PAMC Ch.16.47 PAMC Ch 16.57 Amount of the Fee $18.89 per square foot $60,750 per space Fund Balance July 1, 2013 $10,017,107 $660,852 Activity in 2013-14 Revenues Fees Collected 1,389,492 1,275,750 Interest Earnings 221,655 27,889 Unrealized Gain/Loss Investments 27,211 5,881 Reclassify prior year fees from Fund 233 883,313 -------------------------------------------------------------------------------------------------------------------- Total Revenues 2,521,671 1,309,520 Expenditures Reclassify prior year to loan 0 0 Consultant Fees 0 -------------------------------------------------------------------------------------------------------------------- Total Expenditures 0 0 -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2014 $12,538,778 $1,970,372 Other Commitments/Appropriations Encumbrances 0 Reserve for Notes Receivable include:$1,290,000 for 2811 Alma, and $3,645,010 for 801 Alma.(4,935,010) Reserve for unrealized gain on investments (39,810)(8,772) Net Funds Available $7,563,958 $1,961,600 Unexpended balance at next finding date (FY 2017-18)5,042,286 $652,080 USE OF FEES:USE OF FEES: No expenditure of funds have been made from this fund in Fiscal Year 2014. No expenditure of funds have been made from this fund in Fiscal Year 2014. Page 2 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 Residential & Non-Residential Housing Residential & Non-Residential Housing Community Facilities Community Facilities FUND Parks Community Centers Purpose and Authority Fees imposed on new residential and Fees imposed on new residential and for Collection non-residential development approved non-residential development approved after Jan 28, 2002 for Parks. after Jan 28, 2002 for Community Centers. PAMC Ch. 16.58 PAMC Ch. 16.58 Amount of the Fee Residential: Single family $10,638/residence (or $15,885/residence larger than 3,000 sq ft); Multifamily $6,963/unit (or $3,521/unit smaller than or equal to 900 sq ft) Residential: Single family $2,758/residence (or $4,129/residence larger than 3,000 sq ft); Multifamily $1,815/unit (or $916/unit smaller than or equal to 900 sq ft) Nonresidential: Commercial/industrial $4,517 per 1,000 sq ft; Hotel/Motel $2,043 per 1,000 sq ft Nonresidential: Commercial/industrial $255 per 1,000 sq ft; Hotel/Motel $115 per 1,000 sq ft Fund Balance July 1, 2013 $1,626,566 $5,396,147 Activity in 2013-14 Revenues Fees Collected 989,118 198,138 Interest Earnings 49,602 138,745 Unrealized Gain/Loss 4,387 19,129 Transfer In from CIP Fund, cancelled PE-13007 El Camino Dog Park 259,896 0 -------------------------------------------------------------------------------------------------------------------- Total Revenues $1,303,003 $356,012 Operating Transfer to Capital Projects Fund 0 (742,298) -------------------------------------------------------------------------------------------------------------------- Total Expenditures 0 (742,298) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2014 $2,929,569 $5,009,861 Other Commitments/Appropriations Reserve for unrealized gain on investments (14,507)(34,412)-------------------------------------------------------------------------------------------------------------------- Net Funds Available $2,915,062 $4,975,449 Unexpended balance at next finding date (FY 2016-17)446,005 $843,808 USE OF FEES:USE OF FEES: No expenditure of funds have been made from this Fund in Fiscal Year 2014. Expenditures have been made in Fiscal Year 2014 for $40K to LB-11000 (Furniture and Technology for Library Project), $16K to Fixture, Furniture and Equipment with the Mitchell Park Community Center, and $686K to PE-12017 (City Hall First Floor Renovations) Page 3 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 Residential & Non-Residential Housing Residential Housing Community Facilities In-Lieu Fund FUND Libraries Purpose and Authority Fees imposed on new residential and Fees collected from residential for Collection non-residential development approved developments of three or more units in after Jan 28, 2002 for Libraries. lieu of providing the required below- market rate unit(s) to low and moderate PAMC Ch. 16.58 income households. PA Comprehensive Plan and PAMC Chapter 18 Amount of the Fee Residential: Single family $963/residence (or $1,434/residence larger than 3,000 sq ft); Multifamily $565/unit (or $316/unit smaller than or equal to 900 sq ft)Varies Nonresidential: Commercial/industrial $243 per 1,000 sq ft; Hotel/Motel $102 per 1,000 sq ft Fund Balance July 1, 2013 $680,445 $14,935,471 Activity in 2013-14 Revenues Fees Collected 72,948 9,900 Webster Wood In-Lieu Payment 0 5,450 Palo Alto Bimmer In-Lieu Payment 0 0 Interest Earnings 15,560 210,066 Unrealized Gain/Loss Investments 2,038 5,300 Reclassify prior year fees to Fund 234 (883,312) -------------------------------------------------------------------------------------------------------------------- Total Revenues $90,547 ($652,597) Expenditures Legal (114,577) Housing Program Expense (131,652) Principal Retired (127,307) Transfer to CIP (40,000) -------------------------------------------------------------------------------------------------------------------- Total Expenditures (40,000)(373,537) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2014 $730,991 $13,909,337 Reserve for Encumbrances 0 (264,041) Reserve for unrealized gain on investments (4,723)(33,737) Reserve for Notes Receivable include $375,000 for 3053 Emerson, $3,804,850 for Tree House Apts, $334,220 for Oak Manor, $756,819 for Sheridan Apts., and $3,164,986 for 801 Alma (8,435,875) -------------------------------------------------------------------------------------------------------------------- Net Funds Available $726,268 $5,175,685 Page 4 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 Unexpended balance at next finding date (FY 2016-17-Residential & Non Residential Housing Communities Facilities Libraries, FY2014-15- Residential Housing In-Lieu)$541,259 0 USE OF FEES:USE OF FEES: Expenditures have been made in Fiscal Year 2014 for $40K to LB-11000 (Furniture and Technology for Library Project). Expenditures in Fiscal Year 2013 include $132K to Palo Alto Housing Corp for BMR fees, $127K for Oak Manor Apts. loan forgiveness, and $114K for legal fees. Page 5 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 Parkland Dedication Charleston-Arastradero Corridor Pedestrian and Bicyclist Safety FUND Purpose and Authority Fees on parkland dedication imposed Fees collected from new development and for Collection on new residential and non-residential re-development within the Charleston- development Arastradero Corridor to provide for pedest- rian and bicyclist safety improvements. Govt Code Sec.66477 (Quimby Act) PAMC Ch. 16.60 Amount of the Fee Varies Residential: $1,168 per unit; Commercial: $0.34 per sq ft Fund Balance July 1, 2013 $2,056,775 $572,289 Activity in 2013-14 Revenues Fees Collected 316,160 1,168 Interest Earnings 45,581 11,540 Unrealized Gain/Loss 8,648 (192) - 0 -------------------------------------------------------------------------------------------------------------------- Total Revenues $370,389 $12,515 Expenditures Operating Transfer to Capital Projects Fund 0 (335,000) -------------------------------------------------------------------------------------------------------------------- Total Expenditures 0 (335,000) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2014 $2,427,163 $249,804 Other Commitments/ReappropriationsReserve for unrealized gain on investments (14,844)(2,699) -------------------------------------------------------------------------------------------------------------------- Net Funds Available $2,412,319 $247,105 Unexpended balance at next finding date (FY 2016-17-Parkland Dedication, FY2014-15-Charleston)$757,743 $0 USE OF FEES:USE OF FEES: No expenditure of funds have been made from this Fund in Fiscal Year 2014. Budgeted transfer in the amount of $335K was made to the Capital Improvement Fund in Fiscal Year 2014 for the Corridor Plan (PE- 13011). Page 6 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 Citywide Transportation FUND Purpose and Authority for Collection Transportation impact fees imposed on new development in all parts of the City to fund congestion reduction projects. PAMC Ch. 16.59 Amount of the Fee $3,197 per net new PM peak hour trip Fund Balance July 1, 2013 $3,149,248 Activity in 2013-14 Revenues Fees Collected 689,688 Interest Earnings 52,982 Unrealized Gain/Loss Investments 15,093 -------------------------------------------------------- Total Revenues $757,762 Expenditures Operating Transfer to CIP (25,000) Principal Retired -------------------------------------------------------- Total Expenditures (25,000)-------------------------------------------------------- Ending Balance June 30, 2014 $3,882,010 Other Commitments/Reappropriations Reserve for unrealized gain on investments (22,941)-------------------------------------------------------- Net Funds Available $3,859,069 Unexpended balance at next finding date (FY 2017-18)$3,101,307 USE OF FEES: Budgeted transfer in the amount of $25K was made in Fiscal Year 2014 to PL- 12000 (Parking and Transportation Improvements). Page 7 of 8 12/11/2014 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2014 (INFORMATION ONLY) FUND Water and Wastewater Collection Purpose and Authority Capacity fees charged to developers that for Collection are adding load to the water and sewer systems effective July 1, 2005. California Government Code Sect 66000 Amount of the Fee Water Domestic: 5/8 in., 3/4 in. $5,000, 1 in. $9,400, 1 1/2 in. $18,850, 2 in. by est. $125/FU, 3 in. by est. $125/FU , 4 in. by est. $125/FU , 6 in. by est. $125/FU Water Fire Service: 2 in. $750, 4 in. $9,000, 6 in. $22,530, 8 in. $43,080, 10in. $69,510 Sewer: 4 in. $10,500 first 50 FU, $210/FU additional, 6 in. by est. $210/FU, 8 in. by est. $210/FU FU is fixture unit Activity in 2013-14 Capacity Fees Collected Water $995,477 Wastewater Collection 1,009,680 Total $2,005,157 USE OF FEES: The fees are used exclusively for water and sewer system improvements Page 8 of 8 12/11/2014 City of Palo Alto (ID # 5427) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Municipal Public Art Ordinance Title: Adoption of an Ordinance Governing Public Art for Municipal Projects From: City Manager Lead Department: Community Services Recommended Motion The Policy and Services Committee recommends to Council the adoption of an ordinance (attachment A) updating and codifying the City’s Percent for Art Policy that applies to City capital improvement projects. Background: In 2005, Palo Alto adopted a policy of including public art in municipal capital improvement projects. The City revised the policy in 2011 to tighten the language and broaden its applicability. In 2013, the Council adopted an ordinance requiring private developments to include a public art component. (See Palo Alto Municipal Code, Chapter 16.61.) With the implementation of the public art in private development ordinance, staff committed to review the municipal policy for general parity and effectiveness, and return to Council with recommendations. Staff identified a number of areas of the municipal policy that warranted further refinement and have incorporated those into the proposed ordinance: First, the existing policy contains general language regarding applicability of the policy and exemptions from it. As a result, lengthy consultations have been required between project managers, budget and arts staff on how to apply the policy. Therefore, certain projects or parts of projects, which could have been eligible for public art funding, were not included for public art funding. Greater clarity on applicability and exemptions will streamline administration and support the 1% goal for eligible projects. Second, until the Fiscal Year 2015 budget, the percent for art funds remained with the construction project rather than being transferred to the Public Art Program. This practice has made it difficult to track funds for projects that are delayed, ensure that the art funds are not spent on other construction needs, and initiate the art selection early in the design process for best outcomes. City of Palo Alto Page 2 Third, the current policy does not require project managers utilizing grant funding to request public art funds in the grant request, resulting in little to no art funding for large impactful projects that could benefit from public art, such as the California Avenue Streetscape Project, the 101 bike and pedestrian bridge, and the Newell Street bridge. By adopting a policy that requires grant seekers to request funds for public art when allowable, the City can promote adequate budgets for public art in these visually impactful projects. Fourth, the current policy contemplates that arts funds be spent on the site of each project, with no option to pool small funds and use them on one project. As a result, there have been a number of small public art installations with limited impact. The amount of staff time and effort expended managing multiple small installations is not cost effective. It would be far more efficient to pool the funds allocated for municipal percent for art and commission more impactful public artworks in selected sites. Pooled funds could be used to supplement other smaller public art funds or to for art associated with larger grant funded projects in which public art was not included in the grant. Discussion: Public Art, Public Works, and Administrative Services staff have been working closely to identify the most efficient and transparent process possible for the development of the ordinance, as well as revision of an administrative policy implementing the ordinance that will be adopted by the City Manager. As part of this review, staff studied municipal public art programs in other cities, including San Jose and San Luis Obispo. The Policy and Services Committee and staff recommend that Council adopt the attached ordinance in order to: 1-Clarify language to provide that all projects are included unless specifically exempted; 2 Clearly define exemptions and the process to apply for exemption; 3- Authorize Public Art Staff to pool funds for more impactful projects; commission permanent or temporary art, including performance-based and experiential art; and site art at any public or publicly-accessible site; 4- Affirm that the funds for Public Art will be allocated to the Art in Public Places capital project at the beginning of the fiscal year and described for the City Council as part of the annual budget process, with the exception of funds associated with projects reimbursed by grants; and 5- Require grant seekers to request funding for public art, where permitted. With respect to applicability of the ordinance, the Policy and Services Committee and staff recommend that the ordinance apply to all CIP projects for that FY less specifically exempted. Salaries and benefits of public employees supporting the CIP projects shall not be counted as part of the base for the 1% calculation. The City Manager may adjust City of Palo Alto Page 3 the implementing policy as required to support the new ordinance. The following are proposed for exemption: 1. ADA Compliance Projects (not including projects where ADA compliance is a portion of a larger project). 2. Road, path and sidewalk repairs, including: traffic signals and upgrades, curb and gutter repairs, sign reflectivity, road and parking signage, resurfacing of roads or other existing hardscape areas. 3. Emergency repair projects. 4. Cyclical replacement and repair of trails, outdoor furnishings, or fencing. 5. Studies. 6. Roof replacement 7. Mechanical, security, A/V equipment, HVAC, and IT installations, upgrades and repairs. 8. Art in Public Places CIP. 9. Utilities projects, unless there is a building construction or reconstruction involved. 10. Vehicle repair and replacement. 11. Seismic upgrades and waterproofing. 12. Projects where the majority of the cost is allocated to elements located underground. 13. Projects where prohibited by federal law, including projects or portions of projects funded by grants from non-City sources that prohibit expenditure of funds for art. With more than $25 million approved in this year’s Capital Improvement Fund budget, $30,300 was allocated for municipal percent for art funds, in addition to the annual allocation of $50,000. If the proposed ordinance had been in effect, just under $10 million in projects would qualify for percent for art, resulting in an approximate public art budget of $92,408. The approximately $15 million of ineligible project dollars (with the approval of the ordinance) are primarily attributable to street and sidewalk rehabilitation, maintenance, and repair as well as salary and benefits cost of staff supporting the capital improvement projects. The Policy and Services Committee recommended that the ordinance be revised to state that the ordinance is not intended to limit Council’s authority to adopt an ordinance or resolution providing for a public art component in any project that would otherwise be exempt from the requirement (for example, a Utilities capital improvement project that does not include a building), or providing public art funding at a level greater than one percent. The attached ordinance includes this language as recommended by the Committee. Additionally, it is important to note that the Public Art Program is beginning a Public Art Master Planning process with extensive community outreach in 2015. The master plan City of Palo Alto Page 4 will help identify and prioritize public art in Palo Alto and ensure that it is thoughtfully planned for and integrated into the City. The pooled Municipal public art funds will allow staff to honor the community desires for upgraded and integrated art into our City. A draft ordinance codifying the proposed updated policy is attached as Attachment A. The minutes from the December 16th Policy and Services meeting is attached as Attachment B. A copy of CMR #5353 to Policy and Services is attached as Attachment C. Timeline The ordinance would go into effect thirty one days after the second reading. Attachments: Attachment: ATTACHMENT A- Public Art in Municipal Projects Ordinance (DOC) Attachment: ATTACHMENT B - PS 121614 Draft Excerpt 3 (2) (DOCX) Attachment: ATTACHMENT C- CMR #5353 Policy and Services Meeting (PDF) NOT YET APPROVED 141230 sh 0140129 1 ORDINANCE NO. _____ Ordinance of the Council of the City of Palo Alto Amending the Municipal Code to add Section 2.26.070 (Public Art for Municipal Projects) to Chapter 2.26 (Visual Art in Public Places) The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Findings and Declarations. The City Council finds and declares as follows: A. Public art fosters economic development, enhances community vitality and enriches the quality of life through the City. B. Since 2005 Palo Alto has had a policy requiring City capital improvement projects to devote 1 percent of the project’s construction budget to public art, and in 2013 extended this requirement to private developments. C. The City wishes to confirm and strengthen its municipal public art program to enhance the funds available for public art and to increase flexibility to provide art experiences that are timely and relevant throughout the community. SECTION 2. The Palo Alto Municipal Code is amended to add Section 2.26.070 “Public Art for Municipal Projects” to Chapter 2.26 (Visual Art in Public Places): 2.26.70 Public Art for Municipal Projects (a) It shall be City policy to set aside one percent (1%) of its annual Capital Improvement Program (CIP) budget, as defined in the section, for the purpose of providing for public art. Except as provided in this section, all CIP projects shall be subject to this policy, including but not limited to buildings, shelters, parking garages and lots, restrooms, small structures, parks, medians, landscaping, plazas, gateways, bridges, walls, tunnels, and street and road construction. Salaries and benefits of public employees supporting CIP projects shall not be included in the CIP budget subject to this ordinance. The following CIP projects are excluded from this policy: (1) ADA Compliance Projects (not including projects where ADA compliance is a portion of a larger project). (2) Road, path and sidewalk repairs, including: traffic signals and upgrades, curb and gutter repairs, sign reflectivity, road and parking signage, resurfacing of roads or other existing hardscape areas. (3) Emergency repair projects. (4) Cyclical replacement and repair of trails, outdoor furnishings, or fencing. NOT YET APPROVED 141230 sh 0140129 2 (5) Studies. (6) Roof replacement. (7) Mechanical, security, A/V equipment, HVAC, and IT installations, upgrades and repairs. (8) Art in Public Places CIP. (9) Utilities projects, except where the project includes construction or reconstruction of a building. (10) Vehicle repair and replacement. (11) Seismic upgrades and waterproofing. (12) Projects where the majority of the cost is allocated to elements located underground. (13) Projects where prohibited by federal or state law, including projects or portions of projects funded by grants from non-City sources that prohibit expenditure of funds for art. (b) Nothing in this Section is intended to prohibit the City Council from adopting an ordinance or resolution establishing a public art contribution for any project otherwise excluded from this policy or setting the public art contribution for any project at greater than one percent of the CIP budget. (b)(c) Funds shall be deposited into the Public Art Fund. The City Manager or designee, in consultation with the Public Art Commission, as appropriate, shall determine public or publically-accessible sites for art funded by the one percent for art policy. Funds may be expended on public art at any appropriate site within the City. Funds from two or more CIP projects may be pooled to fund a single work of art. Funds may be used for permanent or temporary public art. The City Manager shall establish procedures to administer this policy, including procedures for selecting sites, artists and art works. (c)(d) The City Manager may adopt administrative regulations to implement this Section. SECTION 3. Severability. If any provision, clause, sentence or paragraph of this ordinance, or the application to any person or circumstances, shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance which can be given effect without the invalid provision or application and, to this end, the provisions of this Ordinance are hereby declared to be severable. SECTION 4. The Council finds that this project is exempt from the provisions of the California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA Guidelines, because it can be seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment. // Formatted: Indent: Left: 0.8", No bullets ornumbering NOT YET APPROVED 141230 sh 0140129 3 // // // SECTION 5. This ordinance shall be effective on the thirty-first day after the date of its adoption. INTRODUCED: PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ City Attorney City Manager ____________________________ Director of Community Services ____________________________ Director of Administrative Services POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES 1 Special Meeting Tuesday, December 16, 2014 3. Update Municipal Percent for Art Policy, Including Proposed Ordinance and Revised Procedures Elise DeMarzo, Sr. Program Manager Public Art, recapped that when the Percent for Art in private development Ordinance was passed in 2013. Staff pledged to return to Council with a revised municipal policy to ensure the City was in parity with what was being asked of private developers. The existing municipal policy has been in place since 2005 with amendments made in 2011 in an effort to tighten some of the vague language. There were several issues with the existing policy: It took a great amount of staff time determining which projects applied and which did not. A secondary issue was that the funds remained with the Project Budget and were tied to the site rather than transferred to Public Art which lessened the control of funds by Public Art. The existing municipal policy did not address the pooling of funds. Additionally, when there was a pursuit of grant funds, public art was not part of the funds request – resulting in no public art budget for large impactful projects. Staff has consulted with Office of Management and Budget (OMB), Planning and Community Environment, Public Works and legal in the drafting of the Ordinance along with the edits to applicable policy. The main changes brought about by Ordinance and the applicable policy would be: it applies to all Capital Improvement Program (CIP) projects; less the list of exemptions: 1. ADA Compliance Projects (not including projects where ADA compliance is a portion of a larger project). 2. Road, path and sidewalk repairs, including: traffic signals and upgrades, curb and gutter repairs, sign reflectivity, road and parking signage, resurfacing of roads or other existing hardscape areas. 3. Emergency repair projects. 4. Cyclical replacement and repair of trails, outdoor furnishings, or fencing. 5. Studies. 6. Roof replacement 7. Mechanical, security, A/V equipment, HVAC, and IT installations, upgrades and repairs. 8. Art in Public Places CIP. 9. Utilities projects, unless there is a building construction or reconstruction involved. 10. Vehicle repair and replacement. 11.Seismic upgrades and waterproofing. 12. Projects where the majority of the cost is allocated to elements located underground. 13. Projects where prohibited by federal law, including projects or portions of projects funded by grants from non-City sources that prohibit expenditure of POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES 2 funds for art. It would also allow for the pooling of funds and the funds would transfer to Public Art at the beginning of the fiscal year. Council Member Schmid asked for clarification if this draft Ordinance was specific to municipal projects and not private development. Ms. DeMarzo stated it was only addressing municipal projects. Council Member Schmid noted in 2013 the program received $30,000 of a $25 million contract. He noted in the staff report that the Percent for Art could have received up to $90,000 by following the drafted ordinance. He asked for examples of projects Staff felt could have contributed toward the $90,000. Ms. DeMarzo noted there were a number of landscaping, parks rehabilitations and large transportation corridors. For example the Charleston Arastradero Corridor Project did not have a Percent for Art project; although it was a project that had a large visual impact. The idea of the Percent for Art was to capture projects were there was an opportunity for the integration of art. Council Member Schmid asked if there were any controversies about the 13 exemptions categories Staff had identified although he felt they were fairly straight forward. Ms. DeMarzo agreed the exemptions were straight forward. Staff studied a number of other city’s policies, reviewed previous years with OMB and asked numerous questions on the smallest of details in an effort to be thorough in the investigation and clear with the proposed language. Council Member Schmid said when the City asked for outside funding, would the request for additional funds for the inclusion of art a detriment to the grant’s success? Ms. DeMarzo stated actually she had found through researcher colleagues, that the proposals were more compelling because there was a creative element. Such as an opportunity in a transportation project to have something that was noteworthy. Art can bring attention to infrastructure projects that might otherwise pass unnoticed. Other cities were finding greater opportunities by incorporating public art in their request as it brings greater attention to the project. Council Member Scharff felt the utilities projects should include public art; such as the small green boxes that cover electrical wiring. POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES 3 Ms. DeMarzo clarified that some of the green boxes were utilities but some were transportation as well. Council Member Klein noted some were to cover cable television wiring. Council Member Scharff understood they belonged to multiple areas; although, his thought process was they did not need to be green. They could have murals on them. He asked why not include utilities projects when there was a clear funding source. Ms. DeMarzo explained the Municipal Percent for Art program would allow the City to address those projects by pooling the funds. Council Member Scharff understood one of the 13 exemptions was with utilities. He asked if there was a legal reason why that exemption could not be eliminated. Ms. DeMarzo stated that she is not aware of a legal reason for the exemption. She believed the idea was the utility projects could be quite pricey so that could possibly be a different ball park as far as funding. Council Member Klein said exemption number 9 stated it clearly: Utilities projects, unless there is a building construction or reconstruction involved. Council Member Scharff agreed with the exemption; however, his thought was strictly for the green boxes. Utilities projects could provide a substantial amount of funding for public art. Chair Price wanted to be certain the City was not precluding themselves from the opportunity to address some of these kinds of art opportunities. Ms. DeMarzo stated no, absolutely not. Chair Price clarified the draft language allowed for that to happen. Ms. DeMarzo stated yes, because of the Funds ability to be pooled it allowed Staff to address all different types of public art opportunities. James Keene, City Manager, understood the pooling of the funds would allow for the application of art to be placed onto a utility box; although, it would not allow a utility box or other type of similar project to contribute to the art. He noted when the pump station was built at the creek there was a public art component built into the project. POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES 4 Chair Price believed it was prudent to add language that allowed some exceptions to the exemptions. There may be projects that were not covered by the language that may be perfectly suited to the public art arena. She had previously discussed with Staff the ability to have as much flexibility as possible without losing the ability to manage the program. Ms. DeMarzo stated that was correct and with the pooling of funds that did not preclude the City from incorporating public art into those utility projects or the boxes. Mr. Keene asked legal counsel whether there was a Proposition 218 or Proposition 26 issue. Molly Stump, City Attorney, clarified there was not an issue with either of those Propositions. Language could be added that would explicitly say the Council could authorize additional projects to be a source of funds for public art. The Ordinance was not limiting, rather it set up a process where the practice would be done as a regular course in preparation of the CIP. It did not prevent the City Manager from proposing a CIP budget that added art at a higher level than 1 percent. Chair Price asked for clarification that the language of the Ordinance did not need to be specified because it was understood there was such flexibility. Ms. Stump stated the Ordinance spoke to how the City was organizing itself rather than being instruction to a third party nor did it create any rights or obligations. Council sets the budget on an annual basis. There could be language placed in the Ordinance that clarifies that Council having ultimate budgeting authority. MOTION: Council Member Klein moved, seconded by Council Member Scharff that the Policy & Services Committee recommend Council adopt the Ordinance updating and codifying the City’s percent for art policy that applies to City capital improvement projects with the incorporation of the clarifying language regarding Council’s role in approving or adjusting the final municipal art allocation as part of their regular budget approval process.. MOTION PASSED: 4-0 POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES 5 City of Palo Alto (ID # 5353) Policy and Services Committee Staff Report Report Type: Agenda Items Meeting Date: 12/16/2014 City of Palo Alto Page 1 Summary Title: Municipal Percent for Art Program Title: Update Municipal Percent for Art Policy, Including Proposed Ordinance and Revised Procedures From: City Manager Lead Department: Community Services Recommendation: Staff recommends that the Policy and Services Committee review and recommend to Council adoption of an ordinance (attachment A) updating and codifying the City’s percent for art policy that applies to City capital improvement projects; and review proposed revisions to Policy & Procedure 1-45 “Public Art in City Capital Improvement Projects” (attachment B) that implements the updated policy. Background: In 2005, Palo Alto adopted a policy of including public art in municipal capital improvement projects. The City revised the policy in 2011 t to tighten the language and broaden its applicability. With the implementation of the public art in private development ordinance, staff committed to review the municipal policy for general parity and effectiveness, and return to Policy and Services with a revised municipal policy. Staff has identified a number of areas of the municipal policy that warrant further refinement: First, the existing policy contains general language regarding applicability of the policy and exemptions from it. As a result, lengthy consultations have been required between project managers, budget and arts staff on how to apply the policy. Therefore, certain projects or parts of projects, which could have been eligible for public art funding, were not included for public art funding. Greater clarity on applicability and exemptions will streamline administration and support the 1% goal for eligible projects. Second, until the Fiscal Year 2015 budget, the percent for art funds remained with the construction project rather than being transferred to the Public Art Program. This City of Palo Alto Page 2 practice has made it difficult to track funds for projects that are delayed, ensure that the art funds are not spent on other construction needs, and initiate the art selection early in the design process for best outcomes. Third, the current policy does not require project managers utilizing grant funding to request public art funds in the grant request, resulting in little to no art funding for large impactful projects that could benefit from public art, such as the California Avenue Streetscape Project, the 101 bike and pedestrian bridge, and the Newell Street bridge. By adopting a policy that requires grant seekers to request funds for public art when allowable, the City can promote adequate budgets for public art in these visually impactful projects. Fourth, the current policy contemplates that arts funds be spent on the site of each project, with no option to pool small funds and use them on one project. As a result, there have been some small public art installations with limited impact. The amount of staff time and effort expended managing multiple small installations is not cost effective. It would be far more efficient to pool the funds allocated for municipal percent for art and commission more impactful public artworks in selected sites. Pooled funds could be used to supplement other smaller public art funds or to for art associated with larger grant funded projects in which public art was not included in the grant. Discussion: Public Art, Public Works, and Administrative Services staff have been working closely to identify the most efficient and transparent process possible for the revision of the policy. As part of this review, staff studied municipal public art programs in other cities, including San Jose and San Luis Obispo. Staff recommends that the policy be updated to: 1-Clarify language to provide that all projects are include unless specifically exempted; 2 Clearly define exemptions and the process to apply for exemption; 3- Authorize Public Art Staff to pool funds for more impactful projects; commission permanent or temporary art, including performance-based and experiential art; and site art at any public or publicly-accessible site; 4- Affirm that the funds for Public Art will be allocated to the Art in Public Places capital project at the beginning of the fiscal year and described for the City Council as part of the annual budget process, with the exception of funds associated with projects reimbursed by grants; and 5- Require grant seekers to request funding for public art, where permitted. With respect to applicability of the policy, staff recommends that the policy apply to all CIP projects for that FY less specifically exempted. Salaries and benefits of public City of Palo Alto Page 3 employees supporting the CIP projects shall not be counted as part of the base for the 1% calculation. The following are proposed for exemption: 1. ADA Compliance Projects (not including projects where ADA compliance is a portion of a larger project). 2. Road, path and sidewalk repairs, including: traffic signals and upgrades, curb and gutter repairs, sign reflectivity, road and parking signage, resurfacing of roads or other existing hardscape areas. 3. Emergency repair projects. 4. Cyclical replacement and repair of trails, outdoor furnishings, or fencing. 5. Studies. 6. Roof replacement 7. Mechanical, security, A/V equipment, HVAC, and IT installations, upgrades and repairs. 8. Art in Public Places CIP. 9. Utilities projects, unless there is a building construction or reconstruction involved. 10. Vehicle repair and replacement. 11. Seismic upgrades and waterproofing. 12. Projects where the majority of the cost is allocated to elements located underground. 13. Projects where prohibited by federal law, including projects or portions of projects funded by grants from non-City sources that prohibit expenditure of funds for art. With more than $25 million approved in this year’s Capital Improvement Fund budget, $30,300 was allocated for municipal percent for art funds, in addition to the annual allocation of $50,000. If the proposed updated policy had been in effect, just under $10 million in projects would qualify for percent for art, resulting in an approximate public art budget of $92,408. (Note that this includes the full budget for the Newell Street Bridge which may be exempt from the ordinance if the grant funds prohibit such art allocation.) The approximately $15 million of ineligible project dollars (with the approval of the updated policy) are primarily attributable to street and sidewalk rehabilitation, maintenance, and repair as well as salary and benefits cost of staff supporting the capital improvement project. Additionally, it is important to note that the Public Art Program is kicking off a Public Art Master Planning process with extensive community outreach. The master plan will help identify and prioritize public art in Palo Alto and ensure that it is thoughtfully planned for and integrated into the City. The pooled Municipal public art funds will allow staff to honor the community desires for upgraded and integrated art into our City. City of Palo Alto Page 4 A draft ordinance codifying the proposed updated policy is attached as Attachment A. A draft of revisions to Policy & Procedure 1-45, which implements the updated policy, is attached as Attachment B. Attachments: ATTACHMENT A - Ordinance Adding Section 2.26.070 (Public Art for Municipal Projects) (PDF) ATTACHMENT B: Municipal Percent for Art Policy (DOC) NOT YET APPROVED ORDINANCE NO. _____ Ordinance of the Council of the City of Palo Alto Amending the Municipal Code to add Section 2.26.070 (Public Art for Municipal Projects) to Chapter 2.26 (Visual Art in Public Places) The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Findings and Declarations. The City Council finds and declares as follows: A. Public art fosters economic development, enhances community vitality and enriches the quality of life through the City. B. Since 2005 Palo Alto has had a policy requiring City capital improvement projects to devote 1 percent of the project’s construction budget to public art, and in 2013 extended this requirement to private developments. C. The City wishes to confirm and strengthen its municipal public art program to enhance the funds available for public art and to increase flexibility to provide art experiences that are timely and relevant throughout the community. SECTION 2. The Palo Alto Municipal Code is amended to add Section 2.26.070 “Public Art for Municipal Projects” to Chapter 2.26 (Visual Art in Public Places): 2.26.70 Public Art for Municipal Projects (a) It shall be City policy to set aside one percent (1%) of its annual Capital Improvement Program (CIP) budget, as defined in the section, for the purpose of providing for public art. Except as provided in this section, all CIP projects shall be subject to this policy, including but not limited to buildings, shelters, parking garages and lots, restrooms, small structures, parks, medians, landscaping, plazas, gateways, bridges, walls, tunnels, and street and road construction. Salaries and benefits of public employees supporting CIP projects shall not be included in the CIP budget subject to this ordinance. The following CIP projects are excluded from this policy: (1) ADA Compliance Projects (not including projects where ADA compliance is a portion of a larger project). (2) Road, path and sidewalk repairs, including: traffic signals and upgrades, curb and gutter repairs, sign reflectivity, road and parking signage, resurfacing of roads or other existing hardscape areas. (3) Emergency repair projects. (4) Cyclical replacement and repair of trails, outdoor furnishings, or fencing. 141210 sh 0140129 1 NOT YET APPROVED (5) Studies. (6) Roof replacement. (7) Mechanical, security, A/V equipment, HVAC, and IT installations, upgrades and repairs. (8) Art in Public Places CIP. (9) Utilities projects, except where the project includes construction or reconstruction of a building. (10) Vehicle repair and replacement. (11) Seismic upgrades and waterproofing. (12) Projects where the majority of the cost is allocated to elements located underground. (13) Projects where prohibited by federal or state law, including projects or portions of projects funded by grants from non-City sources that prohibit expenditure of funds for art. (b) Funds shall be deposited into the Public Art Fund. The City Manager or designee, in consultation with the Public Art Commission, as appropriate, shall determine public or publically-accessible sites for art funded by the one percent for art policy. Funds may be expended on public art at any appropriate site within the City. Funds from two or more CIP projects may be pooled to fund a single work of art. Funds may be used for permanent or temporary public art. The City Manager shall establish procedures to administer this policy, including procedures for selecting sites, artists and art works. (c) The City Manager may adopt administrative regulations to implement this Section. SECTION 3. Severability. If any provision, clause, sentence or paragraph of this ordinance, or the application to any person or circumstances, shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance which can be given effect without the invalid provision or application and, to this end, the provisions of this Ordinance are hereby declared to be severable. SECTION 4. The Council finds that this project is exempt from the provisions of the California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA Guidelines, because it can be seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment. // // // // 141210 sh 0140129 2 NOT YET APPROVED SECTION 5. This ordinance shall be effective on the thirty-first day after the date of its adoption. INTRODUCED: PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ City Attorney City Manager ____________________________ Director of Community Services ____________________________ Director of Administrative Services 141210 sh 0140129 3 POLICY AND PROCEDURES 1-45 Effective: XXX 2014 PUBLIC ART IN CITY CAPITAL IMPROVEMENT PROJECTS POLICY STATEMENT This policy implements Palo Alto Municipal Code Section 2.26.070 “Public Art for Municipal Projects,” which provides that the City will budget one percent (1%) of the annual CIP budget for eligible projects for public art. GOALS OF PUBLIC ART PROGRAM It is the goal of the City’s public art program to: • use art in public places to enhance the City’s identity and the quality of public spaces. • increase the quantity and quality of public art in the City. • create integrated public art, that is, art that is designed to relate to or be incorporated with the design of public facilities. PROJECTS INCLUDED 1% of all CIP costs not specified under the exclusions below are subject to the policy. Examples of projects included in the public art policy may include but are not limited to: • New buildings such as libraries, public safety buildings, community centers, parking garages and lots, transit stations, performing art centers, new restrooms or small structures • Parks, medians, landscaping and plazas • Gateways entering and exiting the City boundaries • Bridges, walls, tunnels, streetscape improvements and transportation corridors Salaries and benefits of public employees supporting these CIP projects shall not be considered. The public art staff will work with the Office of Management and Budget and appropriate City departments (which may include but are not limited to Planning and Community Environment, Public Works, Utilities, and Community Services) to implement PAMC section 2.26.070 by identifying the projects that are subject to the one percent for public art requirement. The City Manager, prior to the release of the Proposed Capital budget, will review the list of identified projects. Where the applicability is uncertain, the City Manager or his designee will make the final determination. Salaries and benefits of public employees supporting eligible CIP projects will not be considered as part of the CIP budget subject to the public art program. The one percent (1%) will be based on the initial CIP budget and adjusted if the CIP budget is later increased through the annual budget process. If the CIP budget is later decreased, the art contract shall be adjusted as much as allowed depending upon the status of the art design and/or fabrication. EXEMPTIONS TO POLICY The following CIP expenses are excluded from the policy: 1. ADA Compliance Projects (not including projects where ADA compliance is a portion of a larger project). 2. Road, path and sidewalk repairs, including: traffic signals and upgrades, curb and gutter repairs, sign reflectivity, road and parking signage, resurfacing of roads or other existing hardscape areas. 3. Emergency repair projects. 4. Cyclical replacement and repair of trails, outdoor furnishings, or fencing. 5. Studies. 6. Roof replacement 7. Mechanical, security, A/V equipment, HVAC, and IT installations, upgrades and repairs. 8. Art in Public Places CIP. 9. Utilities projects, unless there is a building construction or reconstruction involved. 10. Vehicle repair and replacement. 11. Seismic upgrades and waterproofing. 12. Projects where the majority of the cost is allocated to elements located underground. 13. Projects where prohibited by federal law, including projects or portions of projects funded by grants from non-City sources that prohibit expenditure of funds for art. TRANSFER OF FUNDS Funds will be identified during the budget cycle and be allocated to the Public Art Program at the beginning of the new Fiscal Year, with the exception of grant funds allocated for public art, which will remain in the project budget. PROCEDURE FOR IDENTIFYING AND SELECTING PUBLIC ART PROJECT SITES A. Public Art Staff shall have the authority to pool funds, and may propose funds for use at a current CIP site or any other public or publicly-accessible site. B. The City Manager or designee, in consultation with the Public Art Commission, shall identify sites for public art funded by this program. CIP or other sites that merit further consideration for integration of artwork will be presented to the Public Art Commission. Consideration will include, but not be limited to: • Opportunities for the incorporation of art into the site • Types of artwork that may be appropriate at the site • Maintenance considerations specific to the site • Available funds to create an impactful artwork C. Identification of project sites and establishment of an art budget early in the process allows the artist to be hired at an early stage of design so that the art can be better incorporated with the design. For projects in which art will be integrated on site, the project manager, in consultation with the public art manager, will determine the final public art plan for the site. D. For projects in which it is determined that artwork will not be incorporated on site, the Public Art Program staff will coordinate with the Public Art Commission to determine the allocation of those funds to another municipal public art site or publicly-accessible site. E. Every effort should be made to identify and select projects in a timely manner. F. Some projects may not have a public art requirement but may voluntarily choose to include a public art element. PROCEDURE FOR IDENTIFYING AND SELECTING ART WORKS Artworks may include permanent or temporary art, including performance-based and experiential art. The Public Art staff will develop the RFP or RFQ for the artwork, with input from the Commission, Project Manager and designer/architect. The one percent (1%) will be subject to change during the design phase with the determination of final cost estimates for construction. The RFP/RFQ will include, but not be limited to: • Artist’s timeline beginning with the project design phase. • Any restrictions and requirements of the project as defined by staff and/or project manager. • Artist’s responsibilities to the project in regards to time and involvement with the project manager and project team. • Potential sites and materials for the art work(s). • Necessary Community outreach efforts for design development. • Purpose of the project, identification of stakeholders, vision for the artwork. A. Selection of the artist and artworks will fall into one of three processes: • Open competition - for most projects. • Limited competition - for small projects, typically using the prequalified artist pool. • Commissioned artist for specific projects that lend themselves to that artist’s stylistic approach. B. Selection of the artists and artworks will be made through submittals reviewed by a selection panel composed of representatives of the Public Art Commission, arts professionals, community representatives and appropriate City department representatives or architect/designer. Considerations in selecting the artist and/or proposed work of art will include: • Artistic quality • Safety and security • Maintenance and repair to the work of art • Appropriateness to the purpose of the site • Ability of the project to be realized within the budget • Project’s fit in the City’s collection • Diversity of artists represented in Palo Alto . C. The Public Art Commission will recommend the selected artist and artist’s proposal to the City with the concurrence of the Director of Community Services or designee. D. The selected artist will work with the appropriate department(s) and project manager as noted in the RFP/RFQ and contract. E. Every effort should be made to conduct the artist selection and contract process in a timely manner to optimize coordination during the construction phase. F. The Public Art Manager will work closely with the Project Manager to coordinate efforts and ensure smooth management of the art installation. OWNERSHIP AND MAINTENANCE The City of Palo Alto owns and maintains all art in City projects and has sole fiscal and legal responsibility for the artworks and the maintenance of the works. Project managers with existing art, including murals, sculpture or land art, within their project site or within 100 feet of their project site must contact the Public Art Program staff to ensure the proper precautions are taken for the care and protection of the artwork. A comprehensive inventory of all art shall be maintained and updated by the City and made available for review. NOTE: Questions and/or clarification of this policy should be directed to the Public Art Manager with the Community Services Department. The Public Art program is a program of the Arts & Sciences Division in the Community Services Department. CITY OF PALO ALTO OFFICE OF THE CITY ATTORNEY January 12, 2015 The Honorable City Council Palo Alto, California Council Action on Preliminary Matters Regarding the Application to Close the Buena Vista Mobilehome Park: (1) Determination of the Owner’s Request to Dismiss the Residents Association’s Appeal of the Hearing Officer Decision; (2) Adoption of Procedures to Govern the Appeal; and (3) DireAppeal RECOMMENDATION Staff recommends that Council: 1. Consider and determine the Mobilehome Park Owner’s request to dismiss the Residents Association’s appeal of the Hearing Officer’s decision on the closure application. 2. Adopt procedures to govern the appeal. 3. Direct staff to identify an initial appeal hearing date in late February. Determine whether to hold a special meeting or hear the appeal at a regular Council meeting. EXECUTIVE SUMMARY The Buena Vista Mobilehome Park (Park) is a privately-owned and operated mobile home park located at 3980 El Camino Real. The owner of the Park has applied to close the Park, as state law permits, subject to certain requirements including provision of appropriate mitigation measures. Under procedures described in a Palo Alto ordinance, a Hearing Officer recently heard and issued his final decision on the mitigation measures. The residents have appealed this decision to the Council. At a subsequent meeting, the Council must determine whether to uphold or modify the Hearing Officer’s decision. Tonight’s agenda item addresses three preliminary matters related to the appeal: 1. Considering and resolving the park owner’s request to dismiss the appeal 2. Establishing procedures for the appeal 3. Setting a schedule for hearing and deciding the appeal BACKGROUND The Buena Vista Mobilehome Park is a privately-owned and operated mobilehome park located at 3980 El Camino Real. The Park contains 104 spaces, 98 of which were occupied at the time of the hearing in this matter. Most of the residents are low-income Hispanic families, many with 12 Packet Pg. 201 Page 2 children attending local schools. The residents own their mobilehomes and pay rent for their spaces and shared utilities. California state law sets forth a comprehensive statutory scheme regarding the rights and obligations of mobilehome park owners and tenants. (See Civil Code Section 798.55 et seq.; Govt. Code Section 65863.7.) State law permits the owner of a mobilehome park to close the park and terminate the tenancies of mobilehome owners who rent spaces in the park, for the purpose of converting it to another use or where no future use is planned. Recognizing the unique circumstances of mobilehome park residents, the Legislature conditioned an owner’s right to close a park on certain protections for residents, including requiring a minimum of six months’ notice after all approvals are final; requiring the filing of a report on the impact of the change on displaced residents; and authorizing local governments to condition closure on provision of certain mitigation measures, provided that mitigation “shall not exceed the reasonable costs of relocation.” (Govt. Code Section 65863.7(e).) On May 14, 2001, the Palo Alto Council adopted an ordinance establishing local requirements for mobilehome park conversion, as allowed by state law. Palo Alto’s Mobilehome Park Conversion ordinance (Ordinance) is codified in the Municipal Code at Chapter 9.76. A copy of Chapter 9.76 is Attachment A. The Ordinance applies to both closure and cessation of rentals “even if no new use is planned,” and “conversion . . . to another use.” (PAMC 9.76.020(d).) Prior to converting a park, the Ordinance requires the owner to file an application with the City, submit resident questionnaires, and provide a Relocation Impact Report (RIR). The Ordinance includes specific requirements for the questionnaires and the RIR. (PAMC 9.76.030(c), (d).) After the City determines that the owner’s submissions are complete, the Ordinance provides for an independent Hearing Officer to conduct a hearing and approve or deny the owner’s conversion application. Under the Ordinance and state law, the Hearing Officer is required to approve the application if the mitigation measures proposed by the owner are adequate to mitigate the adverse impacts on the displaced residents, subject to the overall limitation that the conditions of approval cannot exceed the reasonable costs of relocation. (PAMC 9.76.040(g).) The Ordinance includes two non-exclusive lists of potential mitigation measures, depending on whether the residents’ homes can or cannot be relocated to a space in a comparable mobilehome park. (Ibid.) The Ordinance provides that “any aggrieved person” may appeal the Hearing Officers’ decision to the City Council. (PAMC 9.76.060.) On November 9, 2012, Joe Jisser on behalf of owner Toufic Jisser (Owner), filed an application to convert the Buena Vista Park. As required by the Ordinance, the Owner subsequently surveyed the residents and submitted Resident Questionnaires and a Relocation Impact Report to the City. The City rejected the Owner’s initial submissions as incomplete. After several rounds of revisions, on February 14, 2014, the Owner submitted a Fifth Amended Relocation Impact Report. On February 20, 2014, the City determined that the Application met the requirements of the Ordinance and was complete. 12 Packet Pg. 202 Page 3 The City retained retired municipal law attorney, Craig Labadie, as the Hearing Officer to conduct a hearing and approve or deny the conversion application. The parties to the hearing were the owner and the residents, tenants and legal owners of the mobilehomes, acting primarily through the Buena Vista Mobilehome Park Residents Association (Association).1 After meeting with the Hearing Officer, the parties stipulated to supplemental procedures to govern the hearing. The hearing was conducted over three days, on May 12 – 14, 2014. The Association filed a Post-Hearing Brief on July 16, 2014, and the Owner filed a Reply Brief on July 23, 2014. On August 27, 2014, the Hearing Officer issued a Tentative Decision. The Owner accepted the Tentative Decision on September 12, 2014. The Association filed an Opposition to Tentative Decision on September 15, 2014. After the Hearing Officer considered the parties’ comments, he filed his Final Decision on September 30, 2014. The Final Decision is Attachment B. In the Final Decision, the Hearing Officer found that: . . . the park owner has met its burden of proof by proposing a package of mitigation measures which, taken as a whole and with certain supplemental conditions, do meet the criteria set forth in the City’s Mobilehome Park Conversion Ordinance for mandatory approval of the application to close the Buena Vista Mobilehome Park. The relocation benefits include the following payments to park residents: (a) the full, on-site appraised value of each mobilehome, (b) a rent subsidy equal to 100% of the differential between the average space rent at the park and average market rents for replacement housing, (c) start-up costs equal to three months’ rent (first and last months’ rent plus security deposit), (d) moving expenses (relocation of all personal property plus temporary lodging during the move), and (e) special assistance for handicapped/disabled residents. Additionally, the services of a housing relocation specialist will be made available to help residents identify available replacement housing options. (Final Decision, p. 2.) The Association timely filed an Appeal of Decision of the Hearing Officer on October 14, 2014 with the Office of the City Clerk. The Appeal is Attachment C. The Owner has challenged the Association’s right to file the appeal. See Attachment D (letter from Margaret Nanda to the Office of the City Attorney and the Association’s counsel, Oct. 20, 2014). The Association responded to the Owner’s challenge. See Attachment E (letter from Nadia Aziz to the Office of the City Attorney and the Owner’s counsel, Oct. 24, 2014). On October 30, 2014, in preparation for tonight’s item, the City Attorney’s Office updated the parties regarding the appeal and invited their comments and suggestions regarding the appeal procedures. See Attachment F (letter from Grant Kolling to Margaret Nanda and Nadia Aziz, Oct. 30, 2014). The Association and the Owner responded on November 14, 2014 and November 20, 2014. See Attachment G (letter from Nanda to Stump et al., Nov. 14, 2014); 1 The City does not own or lease the Park or the mobilehomes, or have any other property interest in the facility, and is not a party to the proceeding. With respect to the closure application, the City’s role is limited to a determination by the City Council of whether the regulatory requirements in the Ordinance have been satisfied. 12 Packet Pg. 203 Page 4 Attachment H (letter from James Zahradka to Stump et al., Nov. 14, 2014); and Attachment I (Letter from Nanda to Stump et al., Nov. 20, 2014). DISCUSSION Owner’s Request to Dismiss the Appeal The Owner contends that the Ordinance authorizes appeals by individual Park residents only. Because the appeal was filed by the Residents Association, the Owner has asked that the Council dismiss it, or, in the alternative, require that the individual residents who wish to appeal be identified by name, so that Hearing Officer’s order becomes final as to all other residents. The Owner appears to argue that in the absence of an explicit definition in the Ordinance, “person” should be interpreted as it is used in everyday speech, meaning a specific human individual. The Association responds that it has organizational standing to pursue the claims of its members, and the Hearing Officer recognized the Association as representing the interests of the residents generally. The City’s Mobilehome Conversion Ordinance provides that “[a]ny aggrieved person” may appeal the Hearing Officer’s decision. (PAMC Section 9.76.060.) The Municipal Code defines “person” to mean “natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer or employee of any of them.” (PAMC Section 1.04.050(5).) This definition applies throughout the Code except where a particular Code section includes a different definition. The Mobilehome Park Ordinance does not include a different definition of “person” or “aggrieved person.” Accordingly, the general definition of person in Section 1.04.050 applies, such that a “person” includes an association. In addition, it is reasonable to interpret the appeal provision in Section 9.76.060 to mean that an appeal by any individual or group contests the Hearing Officer’s decision as to all similarly-situated residents, not merely those who file an appeal. This is because the Ordinance contemplates that mitigation measures will be applied consistently to all residents or sub-groups of similarly-situated residents. For these reasons, staff recommends that Council find that the Residents Association is authorized to file an appeal, and deny the Owner’s request to dismiss the appeal or require individuals to be identified. The Owner has asked that this question be resolved before the substance of the appeal is heard. This is a preliminary issue that is agendized for decision tonight. If the Council does not wish to resolve the objection at this time, it may defer the issue and decide it after the substance of the appeal is heard. If the Council grants the Owner’s request to dismiss the appeal, this matter will be concluded and the Hearing Officer’s decision will be the final determination in this matter. In that case, Council should direct staff to return immediately with a written decision and findings. If the Council denies the Owner’s request, the appeal will proceed at a subsequent meeting to a consideration of the merits and a Council decision to affirm, modify or take other action with respect to the Hearing Officer’s decision. In that case, the Council’s decision on this issue can be 12 Packet Pg. 204 Page 5 incorporated into the final written findings and decision that the Council will adopt at the conclusion of the appeal. Appeal Procedures There are several procedural requirements that the Council must follow, as described below, as well as procedures over which the Council has discretion. First, state law requires that the appeal – like all other Council business – be conducted consistent with the Brown Act. The Brown Act requires the appeal proceedings to be conducted in open session. This includes deliberations and decision-making. The Council may receive legal advice through written memoranda that are confidential under the attorney-client privilege. Closed sessions, however, are not permitted. In addition, the Brown Act requires the Council to take public comment. Public comment, however, is not evidence, and shall not be a basis for the Council’s determination on the closure application. Second, state and federal due process principles apply. Among other requirements, this means that the Council’s decision must be based on facts in the record before it, and that Council will issue a written explanation of its decision that includes findings based on the record. Beyond these requirements, the Council has discretion to establish procedures to hear and resolve the appeal. The City’s Mobilehome Park Ordinance does not contain specific procedural requirements for the appeal. No other section of the Municipal Code or City policy mandates a particular set of procedures. The Council’s Protocols and Procedures Handbook (Section 2.4(W), pages 22-24) describes the Council’s general approach to the common types of due process matters that come before the Council, such as appeals of applications decided by the Planning Director. A mobilehome closure application is not included in the list of matters to which these procedures apply, however, and numerous parts of the procedures are a poor fit for this proceeding. Staff invited the parties’ input on the procedures that will apply to the appeal. The Owner appears to believe informal argument before the City Council is most appropriate. See Attachment G. The Association proposed that the Council use the “quasi-judicial/planned community hearings” procedures in the City Council Protocols and Procedures Handbook, and supplement those procedures to allow live witness testimony, objections to testimony, cross- examination of witnesses, and two rounds of legal briefing. See Attachment H. Staff recommends that Council adopt procedures to provide direction to the parties regarding how it intends to conduct the hearing, including whether live testimony will be allowed, and whether the parties may submit additional legal briefs. Staff notes that the closure application was the subject of a lengthy proceeding before an independent Hearing Officer. The official record amassed before the Hearing Officer, which the Council must review on appeal, includes over 900 pages of material, including lengthy correspondence, verbatim transcripts of three evenings of argument and testimony, and several rounds of legal briefing. Because the Ordinance provides for a full hearing before a Hearing Officer, it is reasonable to presume that 12 Packet Pg. 205 Page 6 further witness testimony and submission of new evidence on appeal was not intended. Rather, under these circumstances, an appeal typically would involve an opportunity to be heard before the Council to argue regarding the weight that should be given and inferences that should be drawn from the evidence in that record. The Council may wish to allow a limited exception for new evidence if a party can demonstrate that newly discovered and relevant evidence exists that could not have been discovered with the exercise of reasonable diligence during the initial proceeding. Staff has drafted a set of procedures for the Council’s consideration. See Attachment J. Schedule of Proceedings Staff recommends that Council direct staff to identify an initial appeal hearing date in late February. This allows sufficient time for the parties to prepare and for Council Members to review the lengthy record of proceedings before the Hearing Officer. Council may wish to schedule the appeal hearing at a special meeting separate from its regular agenda, to facilitate the expected heavy participation by Park residents and members of the public. If the Council wishes to proceed in this fashion, the Clerk will work with staff, the parties and Council Members to identify an appropriate date. In the alternative, Council could direct staff to place the matter on the Action Agenda at a regular Monday night Council meeting. On the date of the initial hearing, Council could deliberate at the close of the appeal presentations. In the alternative, Council could schedule another date, preferably within several weeks, to deliberate and decide the appeal. When the Council decides the appeal, Council should either direct staff to draft and return to Council with written findings and decision, or direct the parties to do so within a specific timeframe. The matter will then return to Council for review and adoption of the written decision and findings. RESOURCE STATEMENT As required by the Ordinance, the Park Owner has paid the fees and costs of the proceeding before the Hearing Officer. Staff is reviewing the appropriate cost structure on appeal. ENVIRONMENTAL REVIEW Determination of the adequacy of a mobilehome park closure application is not a project subject to environmental review. ATTACHMENTS: Attachment: Attachment A: Palo Alto Municipal Code Chapter 9.76 - Mobilehome Park Conversion (PDF) Attachment: Attachment B: Final Decision of the Hearing Officer, dated 9-30-14 (PDF) Attachment: Attachment C: Appeal, dated 10-14-14 (PDF) Attachment: Attachment D: Margaret Nanda letter to City Attorney and Association's counsel, 10-20-14 (PDF) 12 Packet Pg. 206 Page 7 Attachment: Attachment E: Nadia Aziz letter to City Attorney and Owner's counsel, 10- 24-14 (PDF) Attachment: Attachment F: Grant Kolling letter to Nanda and Aziz, 10-30-14 (PDF) Attachment: Attachment G: Margaret Nanda letter to City Attorney, 11-14-14 (PDF) Attachment: Attachment H: James Zahradka letter to City Attorney, 11-14-14 (PDF) Attachment: Attachment I: Margaret Nanda letter to City Attorney, 11-20-14 (PDF) Attachment: Attachment J: Draft Appeal Procedures (PDF) Department Head: Molly Stump, City Attorney 12 Packet Pg. 207 Page 8 12 Packet Pg. 208 Attachment A12.a Packet Pg. 209 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 210 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 211 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 212 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 213 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 214 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 215 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 216 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 217 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 218 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k 12.a Packet Pg. 219 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n 12.a Packet Pg. 220 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n 12.a Packet Pg. 221 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n 12.a Packet Pg. 222 At t a c h m e n t 1 2 . a : A t t a c h m e n t A : P a l o A l t o M u n i c i p a l C o d e C h a p t e r 9 . 7 6 - M o b i l e h o m e P a r k C o n v e r s i o n Attachment B12.b Packet Pg. 223 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 224 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 225 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 226 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 227 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 228 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 229 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 230 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 231 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 232 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 233 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 234 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 235 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 236 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 237 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 238 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 239 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 240 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 241 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 242 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 243 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 244 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 245 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 246 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 247 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.b Packet Pg. 248 At t a c h m e n t 1 2 . b : A t t a c h m e n t B : F i n a l D e c i s i o n o f t h e H e a r i n g O f f i c e r , d a t e d 9 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) Attachment C12.c Packet Pg. 249 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 250 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 251 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 252 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 253 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 254 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 255 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 256 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 257 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 258 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 259 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 260 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 261 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 262 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 263 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 264 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 265 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 266 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 267 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 268 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 269 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 270 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 271 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 272 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 273 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 274 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 275 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 276 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 277 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 278 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 279 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 280 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 281 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 282 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 283 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 284 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 285 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 286 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 287 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 288 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 289 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 290 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 291 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 292 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 293 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 294 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 295 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 296 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 297 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 298 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 299 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 300 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 301 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 302 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 303 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 304 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 305 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 306 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 307 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 308 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 309 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 310 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 311 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 312 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 313 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 314 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 315 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 316 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 317 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 318 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.c Packet Pg. 319 At t a c h m e n t 1 2 . c : A t t a c h m e n t C : A p p e a l , d a t e d 1 0 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) Attachment D12.d Packet Pg. 320 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 321 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 322 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 323 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 324 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 325 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 326 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 327 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e 12.d Packet Pg. 328 At t a c h m e n t 1 2 . d : A t t a c h m e n t D : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y a n d A s s o c i a t i o n ' s c o u n s e l , 1 0 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e Attachment E12.e Packet Pg. 329 At t a c h m e n t 1 2 . e : A t t a c h m e n t E : N a d i a A z i z l e t t e r t o C i t y A t t o r n e y a n d O w n e r ' s c o u n s e l , 1 0 - 2 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e 12.e Packet Pg. 330 At t a c h m e n t 1 2 . e : A t t a c h m e n t E : N a d i a A z i z l e t t e r t o C i t y A t t o r n e y a n d O w n e r ' s c o u n s e l , 1 0 - 2 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e Attachment F12.f Packet Pg. 331 At t a c h m e n t 1 2 . f : A t t a c h m e n t F : G r a n t K o l l i n g l e t t e r t o N a n d a a n d A z i z , 1 0 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.f Packet Pg. 332 At t a c h m e n t 1 2 . f : A t t a c h m e n t F : G r a n t K o l l i n g l e t t e r t o N a n d a a n d A z i z , 1 0 - 3 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) Attachment G12.g Packet Pg. 333 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 334 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 335 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 336 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 337 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 338 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 339 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 340 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 341 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 342 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 343 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 344 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 345 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 346 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 347 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 348 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 349 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 350 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 351 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 352 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 353 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 354 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 355 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 356 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 357 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 358 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 359 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 360 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 361 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.g Packet Pg. 362 At t a c h m e n t 1 2 . g : A t t a c h m e n t G : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) Attachment H12.h Packet Pg. 363 At t a c h m e n t 1 2 . h : A t t a c h m e n t H : J a m e s Z a h r a d k a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.h Packet Pg. 364 At t a c h m e n t 1 2 . h : A t t a c h m e n t H : J a m e s Z a h r a d k a l e t t e r t o C i t y A t t o r n e y , 1 1 - 1 4 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) Attachment I12.i Packet Pg. 365 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 366 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 367 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 368 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 369 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 370 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 371 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 372 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.i Packet Pg. 373 At t a c h m e n t 1 2 . i : A t t a c h m e n t I : M a r g a r e t N a n d a l e t t e r t o C i t y A t t o r n e y , 1 1 - 2 0 - 1 4 ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) Attachment J12.j Packet Pg. 374 At t a c h m e n t 1 2 . j : A t t a c h m e n t J : D r a f t A p p e a l P r o c e d u r e s ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) 12.j Packet Pg. 375 At t a c h m e n t 1 2 . j : A t t a c h m e n t J : D r a f t A p p e a l P r o c e d u r e s ( 5 4 4 0 : B u e n a V i s t a M o b i l e h o m e P a r k C l o s u r e A p p l i c a t i o n ) #12 Office of the City Clerk M E M O R A N D U M MEETING DATE: 1/12/2015 DATE: January 8, 2015 TO: Council Members FROM: Beth Minor, Acting City Clerk SUBJECT: Agenda Item 12 - Council Action on Preliminary Matters Regarding the Application to Close the Buena Vista Mobilehome Park: (1) Determination of the Owner’s Request to Dismiss the Residents Association’s Appeal of the Hearing Officer Decision; (2) Adoption of Procedures to Govern the Appeal; and (3) DireAppeal The Council Packet published on 12/30/2014 did not include all pages of Opposition To Tentative Decision In The Matter Of The Application Of Toufic Jisser, As Trustee Of The Jisser Family Trust, For Closure Of The Buena Vista Mobilehome Park In Palo Alto, Ca in Attachment C. Find the above mentioned document in its entirety attached. OPPOSITION TO TENTATIVE DECISION IN THE MATTER OF THE APPLICATION OF TOUFIC JISSER, AS TRUSTEE OF THE JISSER FAMILY TRUST, FOR CLOSURE OF THE BUENA VISTA MOBILEHOME PARK IN PALO ALTO, CA Submitted on Behalf of Buena Vista Mobile Home Park Residents Association September 15, 2014 Melissa A. Morris, Senior Attorney Nadia Aziz, Senior Attorney Kyra Kazantzis, Directing Attorney Public Interest Law Firm and Fair Housing Law Project Law Foundation of Silicon Valley Navneet Grewal, Senior Attorney S. Lynn Martinez Managing Attorney/Senior Litigator Sue Himmelrich, Special Counsel Western Center on Law and Poverty Matthew Dolan Sidley Austin LLP INTRODUCTION Under the terms of Palo Alto’s Mobilehome Park Conversion Ordinance, the City must not approve a mobilehome park closure unless the mitigation measures proposed by the park owner “are adequate to mitigate the adverse impacts on the displaced residents.”1 The tentative decision accepts the relocation assistance that the Park Owner proposes in the RIR, and its last- minute amendments, as adequate.2 Based on the relocation assistance that the Park Owner is offering, some residents will be compensated as little as $5,500 for their mobilehomes, and on 1 Palo Alto Municipal Ordinance, 9.76.040(g). 2 Tentative Decision in the Matter of the Application of Toufic Jisser, as Trustee of the Jisser Family Trust, for Closure of the Buena Vista Mobilehome Park in Palo Alto, California. OPPOSITION TO TENTATIVE DECISION 2 average, about $18,000.3 This level of assistance is inadequate to allow residents to relocate to comparable housing as required by the Ordinance, nor will it allow residents to be compensated for their losses. Further, the park closure raises serious due process and fair housing issues, which the tentative decision fails to adequately take into account. For the foregoing reasons, and the arguments submitted in the Residents’ Association’s closing brief, we respectfully request that the tentative decision be reconsidered. I. The Relocation Assistance Offered Does Not Comply with the Ordinance. The Park Owner is required to prove by the preponderance of the evidence that the mitigation measures proposed by the Park Owner are adequate to mitigate the adverse impacts on the displaced residents.4 The tentative decision finds that the relocation assistance is adequate because it will be based on a future appraisal and a year-long 100% rent differential.5 However, the Park Owner failed to prove—as required by the Ordinance—that residents will be able to relocate within 35 miles of the Park, given the relocation assistance that is offered. A. The California Relocation Assistance Act’s Framework to Define and Calculate Local Relocation Assistance Should Have Been Applied Here. The tentative decision acknowledges that Palo Alto’s Mobile Home Park Conversion Ordinance requires mitigation measures that may not exceed the “reasonable costs of relocation,” but found that the “the law does not provide any empirical formula for calculating the appropriate amount of relocation assistance.”6 This statement is incorrect; the California Relocation Assistance Act (CRAA) provides such a definition and that definition should have been used as a benchmark for the tentative decision’s analysis. 3 Tentative Decision, 3. 4 Palo Alto Mun. Code, 9.76.040(g). 5 Tentative Decision, 3. 6 Palo Alto Mun. Code. 9.76.040(g), Tentative Decision, 1. OPPOSITION TO TENTATIVE DECISION 3 The CRAA exhaustively defines the “reasonable costs of relocation.”7 Under the CRAA, displaced individuals, including those displaced by a private entity as part of an agreement with a public agency, are entitled to a “comparable” home; replacement housing must be affordable to the displaced resident, must be of a similar size and function, and must be in a similar location.8 The location of the replacement housing must be in a neighborhood that is “not less desirable than the location of the displaced person’s dwelling with respect to public utilities, facilities, services, and the displaced person’s place of employment.”9 Such displaced individuals are entitled to “payment for actual moving and related expenses as the public entity determines to be reasonable and necessary including actual and reasonable expenses in moving and actual direct losses of tangible personal property as a result of moving.”10 As the CRAA applies to the mobilehome setting, it contemplates using the in-place value of a resident’s coach to assess the displaced resident’s loss. In other words, the value of the mobilehome is not just the value of the coach itself, but also the value of occupying a particular space in a particular neighborhood with particular amenities.11 Because the City of Palo Alto is significantly involved with the closure of Buena Vista Mobile Home Park, and because significant benefits will flow to Palo Alto if the property is developed, the residents are entitled to benefits under the CRAA, which is triggered any time displacement is the result of a “project undertaken by a public entity.”12 A displaced person under the CRAA includes any individual displaced by a private entity for a public use or as part 7 City of Mountain View v. Superior Court, 54 Cal. App. 3d 72, 78 (1975); Gov’t Code § 7262; 25 CCR § 6112. 8 §7260(i)(l)(3); 25 CCR § 6008. 9 §7260 (i)(6); 25 CCR § 6008 (c)(2). 10 §7262. 11 See Adamson v. City of Malibu, 854 F. Supp. 1476 (C.D. Cal. 1994) (discussing in-place value of mobilehomes in the rent control context). 12 § 7260(i). OPPOSITION TO TENTATIVE DECISION 4 of an agreement with a public agency.13 A private entity may be required to pay relocation benefits pursuant to the CRAA when there is some action on the part of a government agency.14 The City of Palo Alto has been integrally involved with the disposition of Buena Vista Mobile Home Park, first in efforts to preserve it, and now in efforts to close it. In 2000, the City Council enacted an emergency ordinance to stabilize rents at the Park15 and created a long-term strategy to preserve the Park. The year-long process, which included negotiations between Palo Alto, the owners of Buena Vista Mobile Home Park, and residents, led to the enactment of a municipal ordinance that provided “a procedure and standards for assessing the adverse impacts of a mobilehome park closure or conversion on the displaced mobilehome owners residing in the park that is being closed and to determine appropriate relocation assistance for those residents.”16 In addition, the City and the Park owners agreed to jointly develop a long-term preservation strategy for the Park. Notably, Buena Vista Mobile Home Park was the only mobilehome park in Palo Alto when the ordinance was adopted. Now Palo Alto is significantly involved in the current efforts to close and convert the Park. The City has identified the intersection where the Park is located as a desirable area for new mixed-use, transit-oriented development in several of its city planning documents;17 Palo Alto has served as an intermediary between the owner, the former potential developer 13 See 25 CCR § 6008(f)(2); see also Garcia v. Anthony, 211 Cal. App. 3d 467, 472 (1989). 14 See, generally, Langer v. Redevelopment Agency of City of Santa Cruz, 72 Cal. App. 4th 998 (1999). 15 Palo Alto Ordinance 4672 (Dec. 20, 2000). 16 Palo Alto Municipal Code § 9.76.010. 17 Both the recently adopted Rail Corridor Study and the Bicycle Pedestrian Plan (adopted as part of the transportation element) recommend that the intersection where Buena Vista Mobile Home Park is located include more transit-oriented development, including the construction of bicycle and pedestrian paths, the narrowing of streets, and the development of a Bus Rapid Transit area at the location. Palo Alto Rail Corridor Study, http://paloaltorail.squarespace.com/storage/PARC_Study_web_120516.pdf, visited Mar. 4, 2013. Also, the El Camino Master Plan Study and the Grand Boulevard Initiative identify the corner as one that should become more bicycle- and pedestrian-friendly. Id. OPPOSITION TO TENTATIVE DECISION 5 Prometheus and the residents of Buena Vista Mobile Home Park by hosting meetings, providing translation, developing resident questionnaires, helping collect those questionnaires, and assisting the owners and the would-be developer in finding and approving its relocation specialist and appraiser. Palo Alto has estimated that it would have received a benefit of over $7 million in in-lieu fees from the development that Prometheus was proposing. Additionally, the California statute that governs the closure of mobilehome parks specifically states that when a zoning change is requested for a mobilehome park closure, “the local government agency is the person proposing the change in use . . . and is required to take steps to mitigate the adverse impact of the change.”18 Although Prometheus apparently cancelled its purchase agreement with the Park Owner, it is clear that a zoning change would be required for the new in-fill apartment home community that the Park Owner proposes. Lastly, the City took the adverse action of approving the Park Owner’s Relocation Impact Report on February 20, 2014.19 Because of the City’s activities listed above, therefore, the tentative decision should have used the CRAA’s definition for the term “reasonable cost of relocation.” Even should the tentative decision not agree that the CRAA is implicated by the City’s actions to date, the CRAA’s definition of the term “reasonable costs of relocation” shouldbe used because the state law and the case law interpreting this law established the definition of this term long before the City’s ordinance was enacted in 2000, creating a term of art that would have been 18 § 65863.7(i). 19 http://www.cityofpaloalto.org/civica/filebank/blobdload.asp?BlobID=39148 OPPOSITION TO TENTATIVE DECISION 6 known by the City Council when it enacted the Ordinance.20 The tentative decision acknowledges that the City Council was “cognizant” of the CRAA’s terminology.21 Departing from this established definition is arbitrary and in conflict with well-established principles of statutory interpretation. Moreover, the tentative decision failed to define the term at all, making any decision about the reasonable of the assistance offered toe residents baseless, arbitrary, and capricious. B. The Assistance Offered, Based on Low Appraisals, Will Not Allow Residents to Move to Comparable Housing Despite the Ordinance’s requirements that residents be provided “comparable housing,” the Park Owners have limited their offered compensation to payment of the appraised values of the residents’ mobilehomes, and a lump-sum relocation payment that is intended to cover a rent differential, moving expenses, and start-up costs.22 The tentative decision rejects the residents argument that the terms “comparable mobilehome,” “comparable housing,” or “comparable mobilehome park” mean more than just the appraised value of the mobilehomes.23 The average appraised value of the mobilehomes is $18,816, and two thirds of the appraised values are between $10,000 and $24,999.24 This formulation of relocation assistance will not adequately mitigate the effects of the Park’s closure on residents whose mobilehomes cannot be moved 20 The purposes behind the CRAA and the Ordinance are similar, and deal with the same subject matter (i.e., mitigating the harm to displaced mobilehome park residents). 58 Cal. Jur. 3d Statutes § 118; See In re Do Kyung K., 88 Cal. App. 4th 583, 586 (2001); cf. Gov’t. Code § 7260.5 (“The primary purpose of this chapter is to ensure that [displaced mobilehome park residents] shall not suffer disproportionate injuries . . . and to minimize the hardship of displacement on these persons”) with Palo Alto Mun. Code § 9.76.010 (“This chapter is adopted . . . to determine appropriate relocation assistance for [displaced mobilehome park residents]”). 21 Tentative Decision, 4. 22RIR, 70. 23Palo Alto Mun. Code, §§ 9.76.020(a), (b)-(c). 24Baar May 5, 2014, Report at 6. OPPOSITION TO TENTATIVE DECISION 7 because it is insufficient to allow them to buy another mobilehome or other comparable housing within 35 miles of the Park. Additionally, as alluded to above, the regulations accompanying the CRAA contain rules and formulas governing the reasonable costs of relocation specifically for mobilehome residents.25 Under these regulations, a person who owns a mobilehome and rents the land on which the mobilehome is located is entitled to: (1) The amount required to purchase a “conventional replacement dwelling” if no mobilehomes are available; (2) The amount necessary to purchase a replacement mobilehome, plus the amount needed to rent a replacement space; or (3) The amount required to rent both a replacement mobilehome and a replacement space, if the resident chooses to rent rather than own the replacement unit.26 As is clear from subsection (3) above—and contrary to the tentative decision—state regulations do not permit relocation to a rental apartment to be appropriate relocation assistance for a mobilehome owner unless he or she chooses this option.27 Rather, in the absence of a decision by the resident to change to a rental tenure, state law clearly defines “assistance” as the purchase of a replacement mobilehome or dwelling, including a new single family home if necessary.28 As further defined, relocation assistance includes the difference between the purchase price of the new single family home and the selling price of the mobilehome (25 CCR § 6102(a)(1)), compensation for an increase in interest costs (§ 6102(a)(2)), and reimbursement for the actual costs necessary to complete the purchase of the replacement house (§ 6102(c)(3)). 25 The California Department of Housing and Community Development (HCD) interprets and implements the CRAA. 25 CCR § 6112. 26 Id. at § 6112 (c)(5)(A)-(C). 27 Tentative Decision at 12-13. 28 25 CCR § 6112 (c)(5)(A). OPPOSITION TO TENTATIVE DECISION 8 Because of the tentative decision’s reliance the low appraisals as well as reliance on in- place appraisals rather than comparable housing, the decision here only allows for relocation assistance to rental housing, in contravention of the CRAA and its accompanying regulations. C. The Reliance on the Relocation Specialist is Misguided. Among the testimony and reports received from various witnesses and experts, the tentative decision gives particular credence to housing relocation specialist David Richman. However, Mr. Richman’s own testimony highlighted the inadequacy of the assistance that has been offered. Mr. Richman testified that the only way residents would be able to purchase another mobilehome would be if they “finance some sort of balance as part of that acquisition” – a balance between $20,000 and $50,000.29 He was unable to identify any mobilehomes that could be purchased for those prices, and could only generally state that in the past he has found mobilehomes that are for sale but not officially listed.30 Similarly, Mr. Richman’s testimony confirmed that he would not be able to find any rental units in the entire Bay Area for the same per month rent that residents currently pay.31 The Park Owner’s revised assistance, submitted at the 11th hour of the hearing, does not alter this conclusion. While Mr. Richman’s reaction to these revisions was that they would provide “a great many more tools to secure replacement housing,” he provided no specific explanation of how this increased assistance would make a difference.32 Indeed, these revisions are highly unlikely to permit Park residents to cover the expense of purchasing a new mobilehome in another park free and clear nor provides guidance 29 Hearing transcript 23:24-24:3. 30 Id. 31 Hearing transcript 25:10-14. 32 Exhibit 4 to Park Owner’s Closing Brief. OPPOSITION TO TENTATIVE DECISION 9 about how the Park’s low-income residents will obtaining financing for purchasing a new mobilehome. Further, the rent offset is inadequate as it is not based on the size of the household, but rather the size of the unit that is to be vacated. 33 The tentative decision finds that the vast majority of residents will get a rent offset based on a one-bedroom, although the household sizes may be much larger.34 The tentative decision should reconsider the rent offset and require the Park Owner to calibrate it based on household size rather than unit size. II. Studio Tenants Are Entitled to Relocation Assistance The Tentative Decision incorrectly finds that the studio tenants are ineligible for relocation assistance.35 The Ordinance specifically references “tenants” regarding the parties who are to complete resident questionnaires for the purposes of determining relocation assistance.36 The Ordinance does not specify that these tenants must live in mobilehomes. Thus, a reasonable interpretation of the Ordinance is that all tenants in Buena Vista—whether living in mobilehomes or other forms of housing—are included. The Ordinance is intended to protect the health and welfare of mobilehome park residents. Such statutes are generally broadly or liberally applied in favor of that protective purpose.37 Further, the Ordinance was enacted with the view that the Park is an important source of affordable housing, and precluding tenants from relocation assistance undermines the purposes of the Ordinance and will leave the thirteen current tenants, many of them long-term tenants, without any means to relocate within the City, or the County. 33 25 CCR § 6104. 34 Tentative Decision, 15. 35Tentative Decision, 17. 36 Palo Alto Mun. Code §§ 9.76.030(a), (c)(7). 37 Southern California Gas Co. v. South Coast Air Quality Management Dist., 200 Cal. App. 4th 251, 268 (2011). OPPOSITION TO TENTATIVE DECISION 10 III. The Description of the Future Use of the Property is Inadequate The tentative decision finds that the park owner’s future investment is not related to the adequacy of mitigation measures.38 This is contradicted by Palo Alto’s Mobilehome Park Conversion Ordinance that explicitly makes the future use of the Park an issue in its proposed closure by requiring the RIR to include “[a] description of any proposed new use for the site.” 39 The RIR, which only states that a “new, well-designed infill apartment home community” would replace the Park is not an adequate description of the proposed new use for the site.40 Indeed, until recently, public records indicated that Prometheus Real Estate Group would purchase and develop the property. The Park Owner’s plan to create an apartment home community will undoubtedly mean that the Park Owners will benefit a great deal financially from the park closure and its redevelopment. IV. Park Residents’ Due Process Rights are Violated as They Have No Means to Contest Future Appraisals The tentative decision fails to set out a process for residents to challenge the proposed updated appraisals that will form the basis for relocation benefits.41 Without a process, residents would not be entitled to any notion of fair hearing or due process. The in-place value of the mobilehomes is one of the most crucial facts to determining the adequacy of the park’s mitigation measures. Indeed, the tentative ruling discusses the April 2013 appraisals at length and concludes that the RIR’s approval is subject to supplemental changes including “providing 38Tentative Decision, 19. 39 Palo Alto Mun. Code §9.76.030 (d)(1). 40RIR, 26. 41 Tentative Decision, 19-20. OPPOSITION TO TENTATIVE DECISION 11 for payments to park residents for the on-site value of their mobilehomes as determined in updated appraisals.”42 Case law supports the argument that this failure deprives residents of a fair hearing. “A hearing requires that the party be apprised of the evidence against him so that he may have an opportunity to refute, test, and explain it, and the requirement of a hearing necessarily contemplates a decision in light of the evidence there introduced. . . .”43 The tentative decision is based on evidence that does not yet exist and therefore could not have been contested to this point. Furthermore, the lack of any means by which residents can contest new appraisals cuts into the “fundamental requirement of due process” that a person have “the opportunity to be heard.”44 V. The Tentative Decision Must Consider the City of Palo Alto’s Obligations under Fair Housing Laws The tentative decision improperly gives little the probative value to expert reports prepared by Professors Donald Barr, Amado Padilla, and Joseph Doherty on the demographics of the the residents of the Park.45 First, this information is crucial to determining what a comparable community to the Park would be, as required by the Ordinance. Second, this information is directly relevant to the issue of whether the closure of the Park will have a disparate impact on racial minorities and other protected classes in Palo Alto. The City’s actions must be consistent with fair housing requirements, and utilize the least discriminatory means possible to effectuate its ordinances. 42 Id. at 12-13, 15. 43 Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152, 1172 (1996), as modified on denial of reh'g)(discussing the requirements of a fair hearing). 44 Stanson v. San Diego Coast Reg'l Com., 101 Cal. App. 3d 38, 45, 161 Cal. Rptr. 392, 397 (Ct. App. 1980). 45 Tentative Decision, 16. OPPOSITION TO TENTATIVE DECISION 12 Nearly all of the park residents are Latino. In contrast, only 6.2 percent of the population of Palo Alto is Latino.46 As noted above, many of the residents are seniors, people with disabilities, and/or families with children. Federal and state fair housing laws recognize that actions which have a disparate impact on protected groups of people may constitute illegal discrimination even when they do not overtly target those groups.47 The closure of Buena Vista Mobile Home Park would certainly have a discriminatory effect on Latinos in Palo Alto and would likely also have a discriminatory effect on people with disabilities and families with children. Accordingly, any relocation assistance must ensure that the residents can access housing in communities that have opportunities similar to those in Palo Alto. Moreover, Palo Alto has an obligation under the Fair Housing Act to affirmatively further fair housing or to take affirmative steps to promote fair housing.48 The preservation of the Park and keeping the residents in Park is a step towards affirmatively furthering fair housing.49 In fact, in its 2000 Analysis of Impediments to Fair Housing Choice, Palo Alto recognized the preservation of the Park “as a program that would support Palo Alto’s fair housing goals.50 As such, Palo Alto’s approval of that closure would be inconsistent with its fair housing obligations. CONCLUSION 46 2010 Census Data, http://www.bayareacensus.ca.gov/cities/PaloAlto.htm 47 Plaff v. United States HUD, 88 F.3d 739, 745 (9th Cir. 1996); Oti Kaga v. South Dakota Housing Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003). 4842 U.S.C. 3608(e)(5). 49 The Tentative Decision rejected the Resident’s Association’s argument that Palo Alto’s failure to take any action to preserve Buena Vista violates Palo Alto’s Housing Element. The tentative decision takes the position that the program to preserve the Park in the Housing Element is a general policy statement and is not a legal basis for denying the closure application. The action to close the Park is inconsistent with the City’s Housing Element. The closure of the Park will lead to the loss of over 117 units of affordable housing. The City has no plan for the replacement of those units, which is inconsistent with both the current and prior Housing Element. 50City of Palo Alto, Analysis of Impediments to Fair Housing Choice, 2000-2005, available at http://www.cityofpaloalto.org/civicax/filebank/documents/13325. OPPOSITION TO TENTATIVE DECISION 13 The current decision, as it stands, does not comport with the Ordinance as it will not allow residents to relocate to comparable housing nor will it adequately compensate residents for the loss of their home. Moreover, the City of Palo Alto will lose an important source of affordable housing with the Park closure and will face the displacement of over 300 residents, with no adequate relocation assistance. Therefore, we respectfully request that the tentative decision be reconsidered. Respectfully submitted, Nadia Aziz, Senior Attorney Kyra Kazantzis, Directing Attorney Public Interest Law Firm and Fair Housing Law Project, Law Foundation of Silicon Valley Navneet Grewal, Senior Attorney S. Lynn Martinez Managing Attorney/Senior Litigator Sue Himmelrich, Special Counsel Western Center on Law and Poverty /s/ Matthew Dolan Sidley Austin LLP City of Palo Alto (ID # 5347) City Council Staff Report Report Type: Action Items Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Comment letter on VTA BRT's EIR Title: Authorization for the Mayor to Sign a Letter Commenting on the Draft Environmental Impact Report/Environmental Assessment (DEIR) for the Valley Transporation Authority (VTA) Bus Rapid Transit From: City Manager Lead Department: Planning and Community Environment Recommended Motion Staff recommends that the City Council authorize the Mayor to sign the attached letter (Attachment A) providing comments on Valley Transportation Authority’s (VTA’s) El Camino Real Bus Rapid Transit Project Draft Environmental Impact Report/Environmental Assessment (DEIR). Executive Summary The Valley Transportation Authority’s (VTA’s) El Camino Real Bus Rapid Transit (BRT) project is intended to improve transit operations and increase transit ridership along the El Camino Real Corridor by providing faster, more reliable service with target stops and specialized transit vehicles and facilities. The El Camino Real BRT Corridor extends from Downtown San Jose (Arena Station) to Downtown Palo Alto (Palo Alto Transit Center) passing through the cities of Santa Clara, Sunnyvale, Mountain View and Los Altos. Design alternatives being studied for the Palo Alto segment of the corridor include BRT operations in either dedicated bus lanes down the center of the street or mixed-flow, curb lane operations. Of the six project alternatives being considered in addition to the “no build” alternative, one – Alternative 4c – would include dedicated lanes within Palo Alto, and the others would include mixed-flow with curbside “stations” built on bulbouts. Based on the VTA’s analysis, the dedicated lane alternative would result in significant and unavoidable impacts at intesections along El Camino and Alma that could be avoided with other alternatives. VTA in partnership with the Federal Transit Administration (FTA) has prepared a Draft Environmental Impact Report/Envirionmental Assessment (DEIR) for the project in compliance with the California Environmental Quality Act (CEQA) and the National Environmental Policy Act City of Palo Alto Page 2 (NEPA). The Document was released on October 29, 2014 and the VTA has requested public and agency comments by January 15, 2015. Background The El Camino Real BRT Corridor extends from Downtown San Jose (San Jose Arena Station) to downtown Palo Alto via The Alameda to El Camino Real in San Jose and continues along El Camino Real through the cities of, Santa Clara, Sunnyvale, Los Altos, Mountain View to its terminus in Palo Alto at the University Transit Station. The El Camino Real Corridor is currently served by the Local 22 bus and the Rapid 522. The BRT project would replace and upgrade the Rapid 522 service by installing enhanced stations, branded vehicles with more comfortable executive-style seating, and more frequent, reliable service. The City Council participated in a Study Session regarding the VTA’s BRT project on November 17, 2014. This study session provided an opportunity for a presentation on the project by VTA staff. At that time, the VTA staff presented the seven proposed alternatives for connecting Downtown San Jose with Downtown Palo Alto through enhanced bus operations. The alternatives consider various locations and lengths of dedicated lane segments, wherein travel lanes would be removed for exclusive bus lanes. Where dedicated lanes are not proposed, transit vehicles would operate in “mixed-flow” and utilize “stations” that would be constructed on sidewalk bulb-outs in the curb lane. The alternatives analyzed in the DEIR are shown below. City of Palo Alto Page 3 City of Palo Alto Page 4 During the Study Session the Council expressed concerns regarding potential impacts at key intersections and along affected corridors within Palo Alto. These include El Camino Real, Alma Street, and Middlefield. Councilmembers the methodology and assumptions related to traffic diversion onto Alma Street and travel times projections for the dedicated lanes vs mixed flow alternatives. Councilmembers also requested that staff to review the background report on traffic operations. The El Camino Real is a State Highway, under Caltrans jurisdiction, and the VTA will require Caltrans support and approval, as well as Federal Transit Administration (FTA) support and approval to implement the BRT project. Cities along the corridor have limited jurisdiction, mostly when it comes to any mitigations or encroachments required outside the State right of way. To the extent cities are called upon to approve mitigations or encroachments, they would be acting as “responsible agencies” under CEQA, using the Final EIR that is certified by the VTA to inform their decisions. Alternatives that include dedicated bus lanes would reconfigure El Camino Real to provide two dedicated bus-only lanes within the center of El Camino Real. Passenger platforms for boarding and de-boarding of the buses would occur at center-street platforms and new ticket stations to expedite boarding would be provided on the platforms similar to Light Rail Transit stations within the County also operated by the VTA. Dedicated bus lane alternatives in general provides better travel time operations for transit by removing the buses from congested travel lanes similar to how High Occupancy Vehicle (HOV) lanes reduce travel times for carpoolers on freeways. However the number of automobile travel lanes on El Camino would be reduced to 2 lanes in each direction in order to accommodate the center dedicated bus lanes, increasing delays for automobiles, and diverting traffic onto parallel routes. Also, either on-street parking or bike lanes could be provided along dedicated lanes segments of El Camino Real, but providing both would not be feasible due to right-of-way constraints. The mixed-flow option would maintain bus operations similar to those that currently occur along El Camino Real through Palo Alto with buses operating within the curb lanes of the street. New BRT platforms would include ticketing, shelter, and streetscape elements, and would be built at “bulb-outs” allowing the bus to stop within the lane of traffic rather than pulling out of a lane of traffic into a parking aisle. The number of automobile travel lanes under this alternative would remain the same, with three lanes in each direction. Some on-street parking may be affected, but only near the bulb-out stations. VTA is proposing two new BRT Stations in Palo Alto, one at El Camino Real & Arastradero Road- Charleston Road, and one at El Camino Real & California Avenue (see simulation below). The University Avenue Transit Station would serve as the final station in Palo Alto, but no upgrades at the station are proposed as part of the project. Each of the stations would include an off- board fare collection system where passengers would buy tickets so they could board the bus City of Palo Alto Page 5 through the front and rear doors without needing to show proof of payment, which would allow for faster boarding. The enhanced stations would be more substantial than regular bus stations by providing shelters for weather protection, more seating and better lighting for safety. Simulation of Proposed Mixed Flow Lanes Curbside BRT Station at California Avenue Source: BRT, EIR October 2014 Construction of the BRT project would result in the permanent removal of up to 94 trees in Palo Alto if the dedicated lanes option is selected. The mixed flow option would remove up to 18 trees. All urban trees that would be removed or lost as a result of the project would be replaced within the project corridor. Trees with a diameter less than 12 inches would be replaced at a 2:1 ratio. All trees with a diameter of 12 inches or more would be replaced at a 3:1 ratio. If VTA cannot replace trees at the stated ratios, VTA would pay in-lieu fees. Where bulb-out stations are constructed, parking spaces along El Camino Real will be removed and with the mixed flow configuration, it’s estimated that only seven parking spaces would be removed in Palo Alto. In contrast, the dedicated lanes configuration could result in removal of 256 spaces. Timeline After the DEIR review period is completed, VTA's Board of Directors will select a Locally Preferred Alternative. While this will be a VTA decision, it will be influenced by the cities along the corridor and Caltrans. Caltrans must approve any changes to the El Camino corridor that are made by the BRT Project. City of Palo Alto Page 6 The VTA must also prepare a Final EIR for certification, and the FTA must adopt Finding of No Significant Impact (FONSI) or prepare an Environmental Impact Statement (EIS) and adopt a Record of Decision (ROD). Project Schedule: Final Design December 2014 - September 2016 Construction March 2017 - August 2018 First Day of Service September 2018 Policy Implications The proposed BRT project is generally consistent with the Comprehensive Plan, which contains the following policies: Policy T-1: Make land use decisions that encourage walking, bicycling and public transit use; Policy T-4: Provide local transit in Palo Alto. Policy T-6: Improve public transit access to regional destinations, including those within Palo Alto. Policy T-7: Support plans for a quiet, fast rail system that encircles the Bay, and for intra-county and transbay transit systems that link Palo Alto to the rest of Santa Clara County and adjoining counties. Policy T-10: Encourage amenities such as seating, lighting, and signage at bus stops to increase rider comfort and safety. However the BRT project would have significant, unmitigable impacts at intersections along El Camino Real and Alma Street if the dedicated lane option is selected, which could conflict with the following policies: Policy L-66: Maintain an aesthetically pleasing street network that helps frame and define the community while meeting the needs of pedestrians, bicyclists, and motorists. Policy L-67: Balanc traffic circulation needs with the goal of creating walkable neighborhoods that are designed and oriented towards pedestrians. Environmental Review VTA in partnership with the Federal Transit Administration (FTA) has prepared a Draft Environmental Impact Report/Envirionmental Assessment for the project in compliance with the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA). VTA is the lead agency for CEQA and FTA is the lead agency for NEPA. The City of Palo Alto will be considered a “responsible agency” under CEQA if the VTA is required to secure City City of Palo Alto Page 7 permits or approvals for any aspect of the project, including required mitigation at intersections/roadway facilities within the City’s jurisdiction. Attachments: Attachment: Attachment A: BRT Comment Letter (PDF) Attachment: Attachment B: Doc Letters 1-12-15 VTA El Camino #5347 (PDF) ATTACHMENT A [Name] Carnahan, David Fmin: Sent: To: Subject: Palo Alto City Council members UearVTA, CITY ©F PALO ALTO.CA GITY CLEftK'S ©Ff'1€E Diane Solomon, CPA <diane_solomon@sbcglobal.~~DEC 29 AH II: 24 Tuesday, December 23, 2014 10:11 PM Council, City Comments to the VT A on the El Camino Real BRT DEIR/EA I urge you and the Valley Transportation Authority to bring quick, efficient and heavily utilized public transportation to Silicon Valley with the El Camino Real Bus Rapid Transit Project. Without this Project, VTA will remain pokey, slow and under utilized. Please create fast, frequent, reliable, and convenient -public transportation. A robust El Camino Bus Rapid Transit (BRT) project will transform this important commercial and residential corridor into a more balanced street with drastically improved bus service. BRT on El Camino Real will also promote a safe and inviting space for people who walk, bike, ride public transportation, or drive. 'I strongly urge VTA to: Incorporate bus-only lanes in the El Camino Real plan, Invest in buffered bike lanes and greater bike carrying capacity on transit vehicles, and . Ensure that there are sufficient left turns, more crosswalks, upgraded pedestrian refuges, and sidewalk extensions (bulb- Guts). P~ease take the initiative and get us into the 21st century. Compared to Tokyo, NYC, DC, London and many other world class cities, our public transportation is SLOWwwwwww. Because it's slow and inconvenient, it's under utilized. Please think different li'ke regions with MUCH better public transportation. ?4'ease make our region a safer, better, more vibrant place for us all to get around with the El Camino Real Bus Rapid Transit -Project. Sincerely, Diane Solomon, CPA 9.17 Chabrant Way San Jose, CA 95125 Carnahan, David From: Sent: To: Subject: Palo Alto City Councilmembers CJTY OF PALO ALTO •. CA mTx QI Ef\K'S f!EFH)E John Brazil <Jmbrazil@sbcglobal.net> 14 OEC 29 AH 11: 25 Tuesday, December 23, 2014 1:48 PM Council, City Comments to the VT A on the El Camino Real BRT DEIR/EA I urge you and the Valley Transportation Authority to approve a high-quality, user-friendly Bus Rapid Transit System on El Camino Real. To attract users like me, please include 1. dedicated bus-only lanes (preferably center-running); and 2. Quality bike facilities on El Camino (preferably protected bike lanes aka cycle tracks) These two key elements will make me much more likely to use El Camino BRT by significantly reducing travel time and by providing bicycling last-mile connections to BRT stops. Fast, frequent BRT connected by bikeways is the transportation solution to our growing El Camino corridor. We cannot fit many more cars on El Camino. BRT will accommodate more people with less traffic. Sincerely, John Brazil John Brazil 307 Loreto St Mountain View, CA 94041 Carnahan, David from: Sent: To: Subject: 'Palo Alto City Councilmembers CITY OF PALO ALTO. CA GUY CLERK'S Off WE Jonathan Schuppert <Jonathan.Schuppert@gmail.corfi~ OEC 2, AH 11: 25 Tuesday, December 23, 2014 11:58 AM Council, City Comments to the VTA on the El Camino Real BRT DEIR/EA We have an opportunity to create a true boulevard that can be safe for all users, attractive, and rejuvenate the local economies. In order for this to succeed, we need continuous bus lanes and protected bike lanes. It has been proven time and.time agin that safe, continuous, and connected routes for transportation options encourages greater use. With more young people opting to live car-free or car-lite and with the rapidly aging demographics of our country, the time is NOW to take steps which will create better, healthier, and more sustainable communities for our next generation. Without the improvements, we will continue to have a freeway dividing our cities and will encourage ugly strip development that has plagued this historic street. Please act now to help improve this street for ALL users. This is a regionally significant street that can be a world famous boulevard that will be attractive for users and future development. No one remembers the ugly streets lined with shopping centers, but they do remember the beautiful boulevards and pedestrian paseos. Think of your travels and the streets that stand out to you as models. l recently went to Buenos Aires, home of Avenida Nueve de Julio which is one of the widest streets in the world. They added new bus only lames with rapid and frequent service. It has dramatically changed the way people view this street which ~tone time could have been a freeway. The future of our communities is your hands and I hope you make the right decision to improve . this street. You will be known in history for either fostering improvements or stopping progress and creating a bigger mess for our future generations. I urge you and the Valley Transportation Authority to bring excellent public transportation to Silicon Valley with the El Camino Real Bus Rapid Transit Project. l support a safe and vibrant environment along El Camino Real with fast, frequent, reliable, and convenient public transportation. A robust El Camino Bus Rapid Transit (BRT) project will transform this important commercial and residential corridor into a more balanced street with drastically improved bus service. BRT on El Camino Real will also promote a safe and inviting space for people who walk, bike, ride public transportation, or drive. I strongly urge VTA to: Incorporate bus-only lanes in the El Camino Real plan, Invest in buffered bike lanes and greater bike carrying capacity on transit vehicles, and Ensure that there are sufficient left turns, more crosswalks, upgraded pedestrian refuges, and sidewalk extensions (bulb- outs). If we don't bring these critical aspects of BRT to El Camino Real, we are missing a huge opportunity to bring an innovative and important change to this increasingly congested and dangerous corridor. Thank you for your work to make our region a safer, better, more vibrant place for us all to get around. Sincerely, Jonathan Schuppert Carnahan, David FllOITI: Sent: To: Subject: 1'.afo Alto City Council members GHY OF PALO ALTO, CA CtTY Ql ERK'S OFFICE Mary Poffenroth <mpoffenroth@gmail.com> 14 OEC 29 AM 11: 25 Tuesday, December 23, 2014 8:23 AM Council, City Comments to the VT A on the El Camino Real BRT DEIR/EA '.I urge you and the Valley Transportation Authority to bring excellent public transportation to Silicon Valley with the El Camino Real Bus Rapid Transit Project. I support a safe and vibrant environment along El Camino Real with fast, frequent, reliable, and convenient public transportation. A robust El Camino Bus Rapid Transit (BRT) project will transform this important commercial and residential ·corridor into a more balanced street with drastically improved bus service. BRT on El Camino Real will also promote a safe and inviting space for people who walk, bike, ride public transportation, or drive. I strongly urge VTA to: Incorporate bus-only lanes in the El Camino Real plan, Invest in buffered bike lanes and greater bike carrying capacity on transit vehicles, and Ensure that there are sufficient left turns, more crosswalks, upgraded pedestrian refuges, and sidewalk extensions (bulb- outs). 'If we don't bring these critical aspects of BRT to El Camino Real, we are missing a huge opportunity to bring an innovative and !important change to this increasingly congested and dangerous corridor. Thank you for your work to make our region a safer, better, more vibrant place for us all to get around . .Sincerely, Mary Poffenroth 140 A Churchill Ave Paio Alto, CA 94301 Carnahan, David From: Sent: To: Subject: Pat Marriott <patmarriott@sbcglobal.net> Saturday, December 27, 2014 8:38 PM Council, City FW: Comments on El Camino BRT EIR From: Pat Marriott [mailto:patmarriott@sbcglobal.net] Sent: Saturday, December 27, 2014 8:36 PM To: ecrbrt@vta.org SUbject: Comments on EIR CIT} EJF PALO ALTO. CA Cfl Y CLERK'S OFFICE 14 OEC 29 AH 11: 26 i read the draft EIR at http://www.vta.org/sfc/servlet.shepherd/document/download/069AOOOOOOlfFdAIAU I also attended the evening meeting in Mountain View on November 20th. I appreciated the brevity of the presentations and the opportunity for so many members of the public to speak. With respect, I offer these comments on the EIR: '(1) Much of the data is theoretical rather than empirical. Prior to the meeting I spoke to a representative from the VTA and told him that if he wanted to see the impact of cutting car lanes, all he had to do was drive through Menlo Park, where El Camino narrows from 3 car lanes in each direction to,2. He asked if that was because of construction. He was completely unaware that Menlo Park narrowed El Camino several years ago in order to add median strips. The resulting congestions means that drivers like me use Middlefield Road in Palo Alto or divert through Menlo Park neighborhood streets west of El Camino. CONCLUSION: EVERY member of the VTA board and VTA staff should be REQUIRED to drive up and down El Camino - from San Jose through Redwood City-during morning rush hour, during evening rush hour, and during the time kids get out of school. Only then will you all understand existing congestion problems. {2) Much of the data is just not plausible. The claim that elapsed drive time from San Jose to University Avenue in Palo Alto would increase by only 3 minutes if bus lanes replace car lanes is impossible to believe. It took me 12 minutes just to get from El Camino at Showers Drive to Castro Street for the meeting! In December 2004, one of Palo Alto's traffic officials thought it would be a good idea to reduce Middlefield Road in the midtown shopping district from 4 lanes to 2. He set up a 3-hour test with cones one evening, but traffic slowed so badly-with honking horns and irate drivers -that the test was cut short and the plan to narrow the road was abandoned. Simple logic indicates that narrowing the path significantly increases travel time. CONCLUSION: Theories that defy logic are probably wrong. (.3) Fewer lanes cannot handle more cars. One member of the public said that Castro Street in Mountain View carries more traffic since it was narrowed from 4 lanes to 2. That's clearly impossible. I was in Mountain View about 2:00 pm on a November weekday. I exited Central Expressway at Castro, which was so backed up that I had to wait on the Central side through a light change to avoid stopping on the RR tracks. Traffic was stop-and-go the entire length of Castro. I turned off at Church Street to look for a parking place. Ten minutes later I finally found a spot 4 blocks south of Castro. Elapsed time from exiting Central Expressway to a parking place: 20 minutes. So yes, there is more traffic on Castro Street now because of more high-end restaurants and other business development. But that traffic is more congested because in addition to removing a lane, parking places have been given over to restaurants for outdoor seating. CONCLUSION: Fewer lanes and fewer parking spaces increase congestion and greenhouse gases, as drivers circle the neighborhoods. (4) Replacing El Camino car lanes with bus lanes doesn't solve a problem. It diverts the problem to someone else's patch. Dilbert nails this perfectly: Traffic is like water: it looks for the path of least resistance. If you dam up the main artery, drivers will shunt through residential areas. You have studied diversion problems at intersections, but not general traffic flow through neighborhoods where children play and ride their bikes and people feel safe crossing streets. Frustrated drivers are not safe drivers. They tend to speed and neglect stop signs. In addition to driving dangerously, cars will spend more time on the roads, spewing fumes around homes, parks and schools -adding to the increased greenhouse gases from stalled traffic on El Camino and at F-rated intersections. CONCLUSION: As one speaker noted, "Don't make my neighborhood your collateral damage." ,(s) The last mile problem has not been addressed. Several people spoke about wheelchair travelers getting ON a bus. What was not mentioned was the problem of those people getting TO and FROM the bus. Not everyone lives and works along the El Camino corridor, so must drive or bike to a bus stop (assuming it's too far to walk). The EIR says drivers can park on side streets. But most cities already have huge parking problems. And once I get off the bus, how do I get to my final destination if my car is back where I boarded? CONCLUSION: Without efficient connectors to jobs, schools, shopping, etc. off El Camino, the bus is impractical. (6) Planned development along the El Camino c,orridor will significantly increase traffic. Just two examples, just from Mountain View: • Mountain View City Council approved the second phase of the redevelopment of San Antonio Shopping Center. The project includes a 50,000-square-foot movie theater, 167-room hotel and a parking garage with over 1,300 spaces. It also plans for restaurants and shops ... and office space likely to leased by Linked In, with space for about 2,000 employees. http://www.mv-voice.com/news/2014/12/03/council-oks-san-antonio-center-project-milk-pail-market- saved • Santana Row's developer is set to buy most of Mountain View's largest shopping center. The 33-acre purchase includes nearly all of the shopping center that's still developed with single-story buildings: the sites of Trader Joe's, Walmart, Kohl's, 24-Hour Fitness, Fresh Choice and JoAnn fabrics. http://www.mv- voice.com/news/2014/12/ 17 Isa ntana-row-developer-ma kes-deal-to-buy-sa n-a nton io-shopping-center CONCLUSION: Recent development over the past 2 years has significantly increased travel time on El Camino. Additional projects, large and small, will cause gridlock up and down the corridor. ~7) Costs are high, benefits are dubious, disruption is guaranteed. Mountain View "Council member Ron it Bryant noted that San Mateo County decided against a similar system and questioned whether it was worth the increase in ridership of 4,000 riders a day over the 522 line." http://www.mv- vo1ce.com/print/story/2014/12/19/el-camino-bus-lanes-win-praise-from-public-concern-from-council The EIR states capital cost estimates up to $232.7M for Alternative 4c. CONCLUSION: Spending millions on a project for a short stretch of El Camino -with serious consequences and arguable benefits -is not a good use of taxpayer dollars. Wie need a comprehensive plan that incorporates BART, Caltrain, light rail, the possibility of High Speed Rail, as well as new technologies like self-driving cars and Elon Musk's Hyperloop. Thank you for the opportunity to comment. :Pat Marriott Los Altos City of Palo Alto (ID # 5392) City Council Staff Report Report Type: Inter-Governmental Legislative Affairs Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Utilities Legislative Guidelines Title: Utilities Advisory Commission Recommendation that the City Council Adopt a Resolution Approving the City of Palo Alto Utilities Legislative Policy Guidelines From: City Manager Lead Department: Utilities Recommendation Staff and the Utilities Advisory Commission (UAC) recommend that the City Council adopt the attached resolution (Attachment A) approving the Utilities Legislative Policy Guidelines. Executive Summary The Utilities Legislative Policy Guidelines (Exhibit A in Attachment A) have been updated from the 2014 guidelines to respond to recent legislative and regulatory trends to: 1) provide direction to staff in evaluating and responding to legislative action involving Utilities issues, and 2) clarify approved policy and advocacy direction when active involvement of Palo Alto elected officials is required. At its December 10, 2014 meeting, the UAC reviewed and voted unanimously to recommend that Council approve the guidelines. The guidelines are grouped in six sections: the first addressing legislative policy guidelines that are common to all utilities (electric, fiber optics, gas, wastewater collection, and water), and the following five sections addressing those guidelines that are specific to electric, fiber optics, gas, wastewater collection, and water. This is the first year there is a section for fiber optics, largely in response to an increasing advocacy need from the City. Each section includes a set of goals for the utility and guidelines for Palo Alto staff and elected officials when taking action to achieve the goals. Background The utility industry is a high-profile and heavily regulated industry that is subject to continuous legislative action at both the state and federal levels. Such legislation can influence, among other things, the reliability and security of the supply and distribution infrastructure, commodity procurement practices, customer service and billing, program design, rate design, and activities and costs associated with climate protection. Representatives of the City City of Palo Alto Page 2 (appointed and elected officials and staff) participate in Federal and State legislative forums to advocate positions on issues that facilitate the City’s current strategic objectives, as adopted in the Utilities Strategic Plan: ensuring a reliable and safe supply of utility resources, providing customer service excellence, managing costs, and ensuring environmental sustainability. The City also participates in joint action efforts to advocate for goals and objectives shared by other publicly-owned utilities. At the state level, hundreds of bills focused on the utility industry can be introduced each year. The number of bills introduced, the pace at which bills change and new language is negotiated, and the often surprising speed at which bills can be placed for a vote during the legislative year requires staff and elected officials to respond quickly if the City is to have any influence on the resulting legislation. Often, a response to an amended bill is required in a matter of a day or two. These timing constraints preclude a return to the UAC and Council for approval each time a response is required. Therefore, a set of policy guidelines is developed each year that identifies the goals and priorities for the City to be applied by staff when evaluating and responding to legislation. While the guidelines are used by staff for evaluating legislation, any advocacy positions taken in alignment with these guidelines will be subject to the approval of the Utilities Director or City Manager per the City’s legislative advocacy process. Although it is impractical to return for approval each time a letter is sent in response to a bill amendment, the issues under debate are known to the UAC and Council through their participation in legislative committee meetings, and updates from the City Manager, the Utilities Director and City staff. Formal letters responding to legislative bills or amendments will be distributed to the UAC and Council. Discussion The proposed Utilities Legislative Policy Guidelines have been updated to respond to recent legislative and regulatory trends. Attachment B highlights the changes from the 2014 guidelines and Attachment C provides a summary of legislative action from 2014. Although there were minimal new state regulations introduced in 2014 for publicly-owned utilities, such as the City of Palo Alto Utilities (CPAU), 2015 could see renewed attempts to increase net energy metering caps, adjust the renewable portfolio standard, change greenhouse gas regulations, introduce more drought related changes, and modify urban water management plan requirements. At the Federal level there may be continuing activity to increase cyber security requirements, drought legislation, budget/tax reform, EPA emissions regulations, and ongoing activities relating to the City’s federal hydropower allocation from the Western Area Power Administration (Western). Staff returns to the Council every year with an update to the guidelines, and previously has labelled the guidelines by calendar year. Due to UAC and City Council meeting timing and the compressed November and December schedules for legislative policy and strategy sessions (with the Northern California Power Agency and the California Municipal Utilities Association, staff proposes to remove the calendar year designation. This will resolve the issue when there may be a lag between the end of the calendar year and final approval of the new guidelines, City of Palo Alto Page 3 such that staff has no officially approved guidelines in effect for a period of up to a month or more. Staff proposes that the guidelines, if adopted by Council, remain in effect until the next update is adopted. Staff will continue to return to Council annually for a review of, and any appropriate updates to, the guidelines. In addition to non-substantive editorial changes, the major revisions to the legislative guidelines were the addition of the following new Goals and Guidelines: 1. All Utilities A new global guideline was added regarding notification, compliance, and reporting requirements for services, communications, billing and payments. The purpose of this new guideline is to ensure the City has the flexibility to balance information and reporting with cost and other constraints. 2. Electric Utility Changes Under Guideline #3, staff proposes a new objective supporting the establishment of equitable rate design and tariffs with respect to local distributed generation. A new objective supporting the consolidation of renewable standards and greenhouse gas requirements under one clean energy standard was added to Guideline #5. Under Guideline #7, staff proposes adding a new objective addressing the need for an equitable distribution of costs between water and power customers of the Central Valley Project. Finally, under Guideline #10, staff proposes adding a new objective addressing the need to critically review new transmission projects in light of continuing transmission cost increases. 3. Fiber Optic Utility This is the first year staff has developed formal goals and guidelines for the fiber optic utility. Goal #1 is to preserve and enhance the local ability to develop broadband solutions that expand consumer choice. Goal #2 is to encourage the use of public rights of way and Utilities infrastructure, provided local authority is maintained and the City’s existing service and safety obligations are not compromised. Goal #3 is to maintain local control over zoning related land use for communications. Finally, Goal #4 is to support legislation that allows the use of the City’s fiber optic asset to support City policies surrounding technology and connectivity. 4. Gas Utility Changes Under Guideline #3, staff proposes modifying the objective to change the focus from supporting production incentives for renewable gas supplies to supporting cost-effective renewable gas supplies. 5. Wastewater Utility The proposed changes to the wastewater utility goals and guidelines are primarily “clean up” type changes and do not represent any new or major changes. Goal #3 was modified to maintain a reliable and sustainable wastewater collection system at a fair price. Under Guideline #2, the objective was modified to better align the guideline with local efforts to City of Palo Alto Page 4 maintain the wastewater collection system at a fair price while recognizing the uniqueness of each local system. 6. Water Utility Changes For the water utility there are two substantive changes. New Guideline #13 is to support responsible groundwater management while recognizing existing and historical groundwater extraction practices. New Guideline #14 supports Proposition 218 reform efforts to balance different objectives. Commission Review and Recommendation The Utilities Legislative Policy Guidelines for 2014 were presented to the UAC at its December 10, 2014 meeting. Due to a self-identified conflict of interest stated by Commissioner Hall, the recommendation was split into two items to allow the Commissioner to participate in the discussion regarding all the utilities except the water utility. Agenda Item 5 recommended approval of the guidelines for all utilities except the water utility, and Item 6 recommended approval of the water utility guidelines. The UAC had a few clarifying questions on the new guidelines. Staff made two minor changes to the water guidelines to clarify that groundwater related efforts will focus on the Palo Alto area and that support for ‘beneficiary pays’ cost allocation for infrastructure improvements should be on the state and regional level. Item 5 was approved 6-0 with Commissioner Chang absent. Item 6 was approved 5-0 with Commissioner Chang absent and Commissioner Hall recused. Draft minutes from the UAC meeting are included as Attachment D. Resource Impact There is no direct resource impact associated with adoption of the proposed legislative policy guidelines. However, actions taken that support the efficient use of the City’s assets and resources will help control costs, implement the Council’s policies and goals, and protect utility customers. Policy Implications The recommendation is consistent with Council policy and supports the Utilities Strategic Plan’s objectives of: ensuring a reliable and safe supply of utility resources, providing customer service excellence, managing costs, and ensuring environmental sustainability. Environmental Review Approval of a resolution adopting the Utilities Legislative Policy Guidelines does not meet the definition of a project pursuant to Section 21065 of the California Environmental Quality Act (CEQA), thus, no environmental review is required. Attachments: Attachment A: Draft Resolution Legislative Policy Guidelines with Exhibit A - 2015 Legislative Policy Guidelines (PDF) Attachment B: Draft 2015 Utilities Legislative Policy Guidelines - redline changes from 2014 (PDF) City of Palo Alto Page 5 Attachment C: 2014 Legislative Activity Summary (PDF) Attachment D: Excerpted Draft UAC Minutes of December 10, 2014 (PDF) *NOT YET APPROVED* 141216 mf 6053123 Resolution No. _____ Resolution of the Council of the City of Palo Alto Approving the City of Palo Alto Utilities Legislative Policy Guidelines R E C I T A L S A. The City of Palo Alto Utilities Strategic Plan (“Strategic Plan”), approved by the Palo Alto City Council on July 18, 2011, (Staff Report #1880), and amended on August 5, 2013, (Staff Report #3950), provides a set of Strategic Objectives for the City of Palo Alto Utilities Department (CPAU) to follow in ensuring a reliable and safe supply of utility resources, providing customer service excellence, managing costs, and ensuring environmental sustainability. B. CPAU annually identifies Utilities’ Legislative Policy Guidelines that facilitate the Strategic Plan’s Strategic Objectives, and advocates for utility-related issues at Federal and State legislative forums in furtherance of those objectives. C. Action on some of these issues may require active involvement of Palo Alto elected and appointed officials. D. The Utilities’ Legislative Policy Guidelines were presented to the UAC at its December 10, 2014 meeting. Due to a self-identified conflict of interest stated by Commissioner Hall, the recommendation was split into two items to allow the Commissioner to participate in the discussion regarding all the utilities except the water utility. Agenda Item 5 recommended approval of the guidelines for all utilities except the water utility, and Item 6 recommended approval of the water utility guidelines. In response to clarifying questions from the UAC, staff made two minor changes to the water guidelines to clarify that groundwater related efforts will focus on the Palo Alto area and that support for ‘beneficiary pays’ cost allocation for infrastructure improvements should be on the state and regional level. The UAC voted unanimously (6-0 with Commissioner Chang absent) to recommend that the City Council approve the Utilities’ Legislative Policy Guidelines for all utilities except the water utility. The UAC voted unanimously (5-0 with Commissioner Chang absent and Hall recused) to recommend that the City Council approve the Water Utility’s Legislative Policy Guidelines. The Council of the City of Palo Alto RESOLVES, as follows: SECTION 1. The Council hereby adopts the resolution approving the Utilities Legislative Policy Guidelines, effective January 1, 2015. All prior versions of the City of Palo Alto Utilities Legislative Policy Guidelines, including the Legislative Policy Guidelines for 2014, adopted by Council on January 12, 2014 (Resolution No. 9388) are hereby repealed and replaced in their entirety by the Utilities Legislative Policy Guidelines, attached to this Resolution as Exhibit A. ATTACHMENT A *NOT YET APPROVED* 141216 mf 6053123 SECTION 2. Staff will review the Guidelines annually and any proposed changes will be approved by City Council. SECTION 3. The Council finds that the adoption of this resolution does not constitute a project under Section 21065 of the California Environmental Quality Act (CEQA) and the CEQA Guidelines, and therefore, no environmental assessment is required. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: ___________________________ ___________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ___________________________ ___________________________ Sr. Deputy City Attorney City Manager ___________________________ Director of Utilities ___________________________ Director of Administrative Services Utilities Legislative Policy Guidelines January 2015 Update Page 1 of 15 Exhibit A Approved by City Council on January 10th, 2014; Resolution #--- Utilities’ Legislative Policy Guidelines Formal advocacy positions taken in alignment with these guidelines will be subject to the approval of the Utilities Director or City Manager as per the City’s Legislative Program Manual ALL UTILITIES Goals 1. Preserve/enhance local accountability in the control and oversight of matters impacting utility programs and rates for our customers while balancing statewide climate protection goals. 2. Support efforts to maintain or improve the reliability of the supply, transmission, storage and distribution/collection infrastructures. 3. Support legislation that makes bold progress in cost effectively reducing greenhouse gas (GHG) emissions, and recognizes early voluntary action. 4. Maintain the City of Palo Alto Utilities’ (CPAU’s) ability to provide safe, reliable, sustainable, and competitively-priced utility services. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability & Infrastructure 3. Climate Protection 4. Service & Cost Control 1. Advocate goals through active participation in joint action efforts. Federal, State, and Regional 2. Support legislation that will result in the most cost-effective reduction of GHG emissions, recognition of early action, and inclusion of more efficient solutions, fuel switching, and demand control programs, in integrated resource plans. Federal, State, and Regional 3. Promote utility legislation and regulations that have undergone stakeholder review and applicable cost benefit analysis to support reasonable reliability standards and compliance requirements, and effective and consistent reporting requirements, Federal, State, and Regional Reliability Councils Utilities Legislative Policy Guidelines January 2015 Update Page 2 of 15 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability & Infrastructure 3. Climate Protection 4. Service & Cost Control customer communications, and goal-setting. 4. Oppose cost shifts from Federal or State budgets and California Public Utilities Commission (CPUC) jurisdictional utilities through active participation in CMUA and NCPA legislative activities. Federal, State, and CPUC 5. Advocate for State and Federal grants for local and regional measures regarding energy efficiency, conservation, renewable resources, fiber, fuel switching, wastewater collection systems and recycled water projects. Federal and State 6. Maintain right of way access for utility infrastructure. Federal and State 7. Protect the value of existing assets and contracts and local regulatory approvals of same. Federal and State 8. Maintain existing low cost municipal financing options for infrastructure projects and advocate for new federal and state programs that recognize critical infrastructure needs. Federal and State 9. Promote utility legislation and regulations that support reasonable and consistent notification, compliance, and reporting requirements for services, communications, billing and payments. Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 3 of 15 ELECTRIC Goals 1. Preserve/enhance the ability of municipal utilities to exercise local accountability and oversight over matters impacting customer service, programs (such as demand side efficiency and conservation programs), and rate structure. 2. Preserve/enhance the reliability and security of infrastructure. 3. Support legislation that makes bold progress in cost effectively reducing GHG emissions and encourages early voluntary action. 4. Preserve just and reasonable utility rates/bills established by local governing bodies. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control 1. Advocate goals through Northern California Power Agency (NCPA), California Municipal Utilities Association (CMUA), American Public Power Association (APPA), Transmission Agency of Northern California (TANC), and Bay Area Municipal Transmission Group (BAMx) with support from Palo Alto staff to speak with a coordinated voice. Federal and State 2. Support NCPA in its continued efforts to streamline the state regulatory reporting responsibilities, to eliminate duplicative data and report submittals to multiple state regulatory agencies, including the CEC, CARB, and the California Independent System Operator (CAISO). State 3. Advocate for legislation/regulations that provide local accountability and support for: cost-effective clean distributed generation and cogeneration projects, and standards and permitting requirements for connecting such resources to the local distribution system; balancing state and local policy implementation and ratepayer equity; equitable rate design and tariffs; cost-effective electric efficiency programs; implementation of renewable portfolio standards; cost-effective storage integration; direct access requirements; Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 4 of 15 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control smart meters and smart grid design and implementation; and use of public benefit funds (as allowed in AB 1890 (1996) 4. Support cap-and-trade market designs that: protect consumers from the exercise of market power; allocate allowances that help mitigate impacts to Palo Alto customers while providing incentives for utilities to move to lower GHG emission portfolios; provide flexible compliance mechanisms such as banking and borrowing of allowances; and allocate funds generated from cap-and- trade markets to GHG related activities, not as a revenue source for state or federal general funds. Federal and State 5. Support legislation for renewable portfolio standards that: promote the 33% goal for the state; maintain local compliance authority; allow utilities to pursue low cost alternatives by utilizing the existing transmission system to access out-of-state resources, including use of Renewable Energy Certificates (RECs); ensure fair application of RPS standards that avoid punitive and/or duplicative non- compliance penalties; restrict extension of CEC jurisdiction over Publicly Owned Utilities; consolidate GHG reduction goals and Renewable Portfolio Standards under one clean energy standard; allow the counting of local distributed generation towards RPS; and prioritize the use of the existing transmission system over building new transmission. Local and State 6. Support/encourage transmission, generation, and demand-reduction projects and solutions including advocating for financing or funding Local, State, and Federal Utilities Legislative Policy Guidelines January 2015 Update Page 5 of 15 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control solutions/options for projects that: enhance/ensure reliability; ensure equitable cost allocation following beneficiary pays principles (including protection against imposition of state- owned electric contract costs on municipal utility customers); improve procurement flexibility (e.g. resource adequacy rules that ensure reliability and provide flexibility in meeting operational requirements or flexibility in meeting State renewable portfolio standards); support the continuation of federal and state financial incentives that promote increased renewable development; improve market transparency (particularly transparency of IOU’s transmission and procurement planning and implementation activities); and reduce the environmental impact on the Bay Area and the Peninsula. 7. Advocate for Congressional, legislative, or administrative actions on matters impacting costs or operations of the Western Area Power Administration (Western) such as: support of Congressional Field Hearings to explore modernizing flood control strategies, river regulation and generation strategies at Central Valley Project (CVP) plants to enhance generation, water delivery, flood control and fisheries; protection of the status of Western Power Marketing Administration and cost-based rates; provisions for preference customers’ first take at land available with economic potential for wind farms; balancing efforts for competing environmental improvements in rivers and Delta conditions with water supply and hydropower impacts; achieving the grid modernization goals of Secretary Chu’s March 16, 2012 memo Federal, State and Regional Utilities Legislative Policy Guidelines January 2015 Update Page 6 of 15 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control without compromising the primary mission of Western and recognizing the achievements already made in California without adding duplicate costly efforts; monitoring and evaluating impacts of Delta conveyance proposals on Western Base Resource allocation; and advocating for an equitable distribution of costs between water and power customers of the Central Valley Project. 8. Advocate for Congressional, legislative, or administrative actions on matters relating to overly burdensome reporting and compliance requirements established by the North American Reliability Corporation (NERC), the Federal Energy Regulatory Commission (FERC) or the Western Electricity Coordinating Council (WECC). Federal, State and Regional 9. Support fair and reasonable application of grid reliability requirements established by NERC, WECC, or FERC and seek Congressional remedies (if needed) for punitive application of fees and fines. Federal and Regional 10. Work with CAISO or through FERC: to give buyers of renewable intermittent resources relief from imbalance penalties; to promote financial and operational changes that result in timely and accurate settlement and billing; and to provide critical input on the need for various transmission projects in light of the escalating costs to the City to import power using the bulk transmission system. Federal and State 11. Monitor cyber security issues to ensure that CPAU, which currently does not have critical cyber assets, retains local control over its cyber security needs while remaining exempt from NERC cyber security standards. Support NCPA to protect it and its member agencies from unnecessary cyber security regulations. Federal and Regional Utilities Legislative Policy Guidelines January 2015 Update Page 7 of 15 FIBER OPTIC Goals 1. Preserve and enhance the authority of local government to develop broadband solutions that align with community needs and expand consumer choice for competitive Internet connectivity and other advanced services delivered over fiber-optic networks. 2. Encourage the competitive delivery of broadband services by permitting the use of public rights-of- way and Utilities infrastructure in a responsible manner, provided that local rights of way authority and management is preserved and the use does not compromise the City’s existing utility safety and services obligations. 3. Support local government authority over zoning-related land use for communications infrastructure in accordance with reasonable and non-discriminatory regulations. 4. Support the Council’s Technology and the Connected City initiative to fully leverage the City’s fiber- optic asset. Goals Legislative Policy Guidelines Venue 1. Support Municipal Delivery 2. Competitive Delivery 3. Local Authority over Land Use 4. Support Council Initiatives 1. Advocate for these goals through the American Public Power Association (APPA), California Municipal Utilities Association (CMUA), National Association of Telecommunications Officers and Advisors (NATOA), National League of Cities (NLC), and the Next Century Cities initiative (NCC), with support from City staff. Federal and State 2. Support legislation and regulations that preserve and enhance municipal delivery of conventional and advanced telecommunication services as prescribed by the Telecommunications Act of 1996. Federal and State 3. Support the goals of the National Broadband Plan, issued in 2010 by the Federal Communications Commission (FCC), to improve Internet access in the United States Federal and State 4. Oppose legislation and regulations that benefit the incumbent cable TV and telephone companies at the expense of community-owned fiber-optic and wireless networks. Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 8 of 15 Goals Legislative Policy Guidelines Venue 1. Support Municipal Delivery 2. Competitive Delivery 3. Local Authority over Land Use 4. Support Council Initiatives 5. Support legislation and regulations that preserve and enhance consumer protections when dealing with the incumbent providers of telecommunication services. Federal and State 6. Support legislation and regulations that encourage the competitive delivery of broadband services by permitting the use of public right-of- way and Utilities infrastructure: Support legislation and regulations that preserve local rights-of-way authority and management; Support legislation and regulations that preserve local government zoning and siting authority for wireless and wireline communication facilities; and Oppose legislation and regulations that reduce compensation received by local governments for the use of the public rights-of-way and other public properties that support communication infrastructure (e.g., utility poles, streetlight poles, ducts and conduits). Federal, State and Local Utilities Legislative Policy Guidelines January 2015 Update Page 9 of 15 NATURAL GAS Goals 1. Preserve/enhance the ability of municipal utilities to develop their own demand side efficiency and conservation programs, alternative gas supplies, and rate structure. 2. Increase the security and reliability of the gas supply and transmission infrastructure. This includes retaining access to intra- and interstate gas transmission systems to reliably serve customers. 3. Support efforts to reduce greenhouse gas emissions and protect the environment. 4. Preserve just and reasonable utility rates/bills established by local governing bodies. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability of Infrastructure 3. Environ- ment 4. Cost Control 1. Advocate most of these goals mainly through the American Public Gas Association (APGA) with minor support from Palo Alto staff. Primarily Federal with minor advocacy at State level 2. Work with Northern California Power Agency (NCPA) and California Municipal Utilities Association (CMUA) to the extent that the City’s goals as a gas distributor align with generators’ use of natural gas. Federal and State 3. Support cost effective renewable gas supplies from in or out of state sources. Federal and State 4. Advocate for financing or funding for cost-effective natural gas efficiency and solar water heating end uses. Federal and State 5. Support market transparency and efforts to eliminate market manipulation through reasonable oversight. Federal 6. Support municipal utilities’ ability to enter into pre-pay transactions for gas supplies. Federal 7. Support efforts to improve pipeline safety. Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 10 of 15 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability of Infrastructure 3. Environ- ment 4. Cost Control 8. Work with partners to discourage extension of CPUC regulatory authority over municipal gas operations. State 9. Oppose legislative proposals resulting in unreasonable costs for Palo Alto’s customers. Federal and State 10. Support cap-and-trade market designs that: protect consumers from the exercise of market power; allocate allowances that help mitigate impacts to Palo Alto customers while providing incentives for natural gas utilities to move to lower GHG emission portfolios; advocate for an allowance allocation methodology that provides flexibility for Palo Alto to structure rates to align GHG costs and revenues; provide flexible compliance mechanisms such as banking and borrowing of allowances; and allocate funds generated from cap-and-trade markets to GHG related activities, not as a revenue source for state or federal general funds. Federal and State 11. Support legislation that aims to protect public health and encourages transparency regarding the practice of hydraulic fracturing or “fracking” for natural gas development, but not blanket moratoriums that aren’t supported by science. Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 11 of 15 WASTEWATER COLLECTIO N Goals 1. Support ability of municipal utilities to develop and manage their own conservation and efficiency programs and retain authority over ratemaking, including the imposition of non-volumetric customer meter or infrastructure charges for wastewater collection service. 2. Increase the reliability of the local wastewater collection systems. 3. Maintain the provision of reliable and sustainable wastewater collection service at a fair price. 4. Support equal comparisons of wastewater collection systems by regulatory agencies in order to minimize and reduce onerous, costly and time-intensive reporting requirements and improve value and accuracy of information reported to the public. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliable Infrastructure 3. Maintain service 4. Valuable reporting 1. Advocate goals through active participation in the Association of Bay Area Governments (ABAG). Local, Regional & State 2. Support future regulations of wastewater collection systems that recognize: local jurisdictions’ proactive efforts to replace and maintain wastewater collections systems; the need to provide affordable and cost based collection service; and the unique characteristics of each collection system. Local, Regional & State 3. Support provision of sufficient resources for regional agencies to enable them to advocate for: environmentally sustainable, reliable wastewater collection service at a fair price; and regional comparisons of wastewater collection projects for future state grant funding. Local and Regional Utilities Legislative Policy Guidelines January 2015 Update Page 12 of 15 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliable Infrastructure 3. Maintain service 4. Valuable reporting 4. Support infrastructure security and reliability including equitable allocation of funds for increasing the security of infrastructure. Regional, and State 5. Advocate for funding and local regulations for wastewater collections system projects and requirements that reduce overflows and improve collection system efficiency. Regional, State and Federal Utilities Legislative Policy Guidelines January 2015 Update Page 13 of 15 WATE R Goals 1. Support ability of municipal utilities to develop and manage their own conservation and efficiency programs and retain authority over ratemaking, including the ability to optimize volumetric and fixed charges to balance the goals of revenue certainty and water use efficiency. 2. Increase the security and reliability of the regional water system owned and operated by the San Francisco Public Utilities Commission (SFPUC). 3. Support efficiency and recycled water programs in order to minimize the use of imported supplies. 4. Maintain the provision of an environmentally sustainable, reliable supply of high quality water at a fair price. Goals Legislative Policy Guidelines Venue 1. Local Authority 2. Reliable Infrastructure 3. Minimize imports 4. Supplies at fair cost 1. Advocate goals through active participation in the Bay Area Water Supply and Conservation Agency (BAWSCA) and California Municipal Utilities Association (CMUA), with support from Palo Alto staff for BAWSCA Local, Regional and State 2. Participate in California Urban Water Conservation Council (CUWCC) Best Management Practice (BMP) revisions and development to ensure that aggressive and cost-effective efficiency goals are incorporated and operating proposals are reasonable, achievable, and cost-effective. State 3. Advocate to ensure that legislative actions regarding the Hetch Hetchy Regional Water System include the following requirements: timely rebuilding of the regional water system; maintains the quality of delivered water; minimizes any increase in the cost of water; creates no additional exposure to more frequent or severe water shortages; supports the existing water system and its operation. Local, Regional and State Utilities Legislative Policy Guidelines January 2015 Update Page 14 of 15 Goals Legislative Policy Guidelines Venue 1. Local Authority 2. Reliable Infrastructure 3. Minimize imports 4. Supplies at fair cost 4. Advocate for interpretations or implementation of Water Code provisions (such as those enacted by AB 1823 (2002), AB 2058 (2002) and SB 1870 (2002)) that maintain or reinforce the authorities and protections available to the City and BAWSCA members outside of San Francisco. Local, Regional and State 5. Support provision of sufficient resources for BAWSCA to enable it to advocate for: an environmentally sustainable, reliable supply of high quality water at a fair price; a SFPUC rate structure that is consistent with the Water Supply Agreement and is based on water usage; a contract amendment to modify the drought time water allocation between the SFPUC and the BAWSCA agencies; preservation of Palo Alto’s existing contractual water allocation and transportation rights on the SFPUC Hetch Hetchy system; and regional planning for conservation, recycled water, and other water supply projects. Local and Regional 6. Advocate for actions that: preserve Palo Alto’s existing contractual rights; and preserve local control over water use and limit encroachment from outside jurisdictions. Local and Regional 7. Support infrastructure security and reliability including an interconnection between the SCVWD West Pipeline with the SFPUC’s Bay Division Pipelines 3 and 4. Regional and State 8. Support notification requirements that inform residents/customers but do not inflict undue or unobtainable requirements on the utility. State Utilities Legislative Policy Guidelines January 2015 Update Page 15 of 15 Goals Legislative Policy Guidelines Venue 1. Local Authority 2. Reliable Infrastructure 3. Minimize imports 4. Supplies at fair cost 9. Support local control of public benefit funds funding levels and program design. State 10. Support beneficiary pays methodologies to prevent taxes or fees, in particular those imposed on SFPUC customers, to fund infrastructure improvements and costs of other water sources such as the Delta. State and Regional 11. Advocate for financing or funding for water conservation programs and recycled water projects that meet end-use needs and conserve potable water and oppose legislation that would reduce such funding. State, Regional and Federal 12. Support infrastructure security and reliability that includes equitable allocation of funds for increasing the security of infrastructure and that protects the City from unnecessary regulations. Local, State and Federal 13. Support legislation that promotes responsible groundwater management while recognizing Palo Alto’s existing and historical groundwater extraction practices. State 14. Support Proposition 218 reform efforts to provide ratemaking flexibility to balance conservation, revenue sustainability, and low income programs. State ATTACHMENT B Approved by City Council on January 10th, 2014; Resolution #--- Utilities’ Legislative Policy Guidelines Formal advocacy positions taken in alignment with these guidelines will be subject to the approval of the Utilities Director or City Manager as per the City’s Legislative Program Manual ALL UTILITIES Goals 1. Preserve/enhance local accountability in the control and oversight of matters impacting utility programs and rates for our customers while balancing statewide climate protection goals. 2. Support efforts to maintain or improve the reliability of the supply, transmission, storage and distribution/collection infrastructures. 3. Support legislation that makes bold progress in cost effectively reducing greenhouse gas (GHG) emissions, and recognizes early voluntary action. 4. Maintain the City of Palo Alto Utilities’ (CPAU’s) ability to provide safe, reliable, sustainable, and competitively-priced utility services. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability & Infrastructure 3. Climate Protection 4. Service & Cost Control 1. Advocate goals through active participation in joint action efforts. Federal, State, and Regional 2. Communicate the City’s record on environmental and energy efficiency programs with Legislature, California Energy Commission (CEC), California Air Resources Board (CARB), and Natural Resources Defense Council (NRDC) via California Municipal Utilities Association (CMUA), Northern California Power Agency (NCPA), and the Bay Area Water Supply and Conservation Agency (BAWSCA). State 3.2. Support legislation that will Federal, Utilities Legislative Policy Guidelines January 2015 Update Page 2 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability & Infrastructure 3. Climate Protection 4. Service & Cost Control result in the most cost-effective reduction of GHG emissions, recognition of early action, and inclusion of more efficient solutions, fuel switching, and demand control programs, in integrated resource plans. State, and Regional 4.3. Promote utility legislation and regulations that have undergone stakeholder review and applicable cost benefit analysis to support reasonable reliability standards and compliance requirements, and effective and consistent reporting requirements, customer communications, and goal-setting. Federal, State, and Regional Reliability Councils 5.4. Oppose cost shifts from Federal or State budgets and California Public Utilities Commission (CPUC) jurisdictional utilities through active participation in CMUA and NCPA legislative activities. Federal, State, and CPUC 6.5. Advocate for State and Federal grants for local and regional applications measures regarding of energy efficiency, conservation, renewable resources, fiber, fuel switching, wastewater collection systems and recycled water projects. Federal and State 7.6. Maintain right of way access for utility infrastructure. Federal and State 8.7. Protect the value of existing assets and contracts and local regulatory approvals of same. Federal and State 9.8. Maintain existing low cost Federal Utilities Legislative Policy Guidelines January 2015 Update Page 3 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability & Infrastructure 3. Climate Protection 4. Service & Cost Control municipal financing options for infrastructure projects and advocate for new federal and state programs that recognize critical infrastructure needs. and State 10.9. Promote utility legislation and regulations that support reasonable and consistent notification, compliance, and reporting requirements for services, communications, billing and payments. Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 4 of 17 ELECTRIC Goals 1. Preserve/enhance the ability of municipal utilities to exercise local accountability and oversight over matters impacting customer service, programs (such as demand side efficiency and conservation programs), and rate structure. 2. Preserve/enhance the reliability and security of infrastructure. 3. Support legislation that makes bold progress in cost effectively reducing GHG emissions and encourages early voluntary action. 4. Preserve just and reasonable utility rates/bills established by local governing bodies. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control 1. Advocate goals through Northern California Power Agency (NCPA), California Municipal Utilities Association (CMUA), American Public Power Association (APPA), Transmission Agency of Northern California (TANC), and Bay Area Municipal Transmission Group (BAMx) with support from Palo Alto staff to speak with a coordinated voice. Federal and State 2. Support NCPA in its continued efforts to streamline the state regulatory reporting responsibilities, to eliminate duplicative data and report submittals to multiple state regulatory agencies, including the CEC, CARB, and the California Independent System Operator (CAISO). State 3. Advocate for legislation/regulations that provide local accountabilitycontrol and support for: cost-effective clean distributed generation and cogeneration projects, and standards and permitting requirements for connecting such resources to the local distribution system; balancing state and local policy implementation and ratepayer equity; equitable rate design and tariffs; cost-effective electric efficiency programs; implementation of renewable portfolio standards; cost-effective storage integration; direct access requirements; smart meters and smart grid design and Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 5 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control implementation, ; and use of public benefit funds (as allowed in AB 1890 (1996)). 4. Support cap-and-trade market designs that: protect consumers from the exercise of market power; allocate allowances that help mitigate impacts to Palo Alto customers while providing incentives for utilities to move to lower GHG emission portfolios; provide flexible compliance mechanisms such as banking and borrowing of allowances; and allocate funds generated from cap-and-trade markets to GHG related activities, not as a revenue source for state or federal general funds. Federal and State 5. Support legislation for renewable portfolio standards that: promote the 33% goal for the state; maintain local compliance authority; allow utilities to pursue low cost alternatives by utilizing the existing transmission system to access out-of-state resources, including use of Renewable Energy Certificates (RECs); ensure fair application of RPS standards that avoid punitive and/or duplicative non- compliance penaltiesprevent double jeopardy in the assessment of penalties for non-compliance; and restrict extension of CEC jurisdiction over Publicly Owned Utilities;. consolidate GHG reduction goals and Renewable Portfolio Standards under one clean energy standard; allows the counting of local distributed generation towards RPS; and prioritize the use of the existing transmission system over building new transmission. Local and State 6. Support/encourage transmission, generation, and demand-reduction projects and solutions including advocating for financing or funding solutions/options for projects that: Local, State, and Federal Utilities Legislative Policy Guidelines January 2015 Update Page 6 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control enhance/ensure reliability; ensure equitable cost allocation following beneficiary pays principles (including protection against imposition of state-owned electric contract costs on municipal utility customers); improve procurement flexibility (e.g. resource adequacy rules that ensure reliability and provide flexibility in meeting operational requirements or flexibility in meeting State renewable portfolio standards); support the continuation of federal and state financial incentives that promote increased renewable development; improve market transparency (particularly transparency of IOU’s transmission and procurement planning and implementation activities); and reduce the environmental impact on the Bay Area and the Peninsula. 7. Advocate for Congressional, legislative, or administrative actions on matters impacting costs or operations of the Western Area Power Administration (Western) such as: support of Congressional Field Hearings to explore modernizing flood control strategies, river regulation and generation strategies at Central Valley Project (CVP) plants to enhance generation, water delivery, flood control and fisheries; protection of the status of Western Power Marketing Administration and cost-based rates; provisions for preference customers’ first take at land available with economic potential for wind farms; balancing efforts for competing environmental improvements in rivers and Delta conditions with water supply and hydropower impacts; achieving the grid modernization goals of Secretary Chu’s March 16, 2012 memo without compromising the primary mission of Western and recognizing the achievements Federal, State and Regional Utilities Legislative Policy Guidelines January 2015 Update Page 7 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability 3. GHG Reduction 4. Cost Control already made in California without adding duplicate costly efforts; and monitoring and evaluate evaluating impacts of Delta conveyance proposals on Western Base Resource allocation.; and Aadvocating for an equitable distribution of costs between water and power customers of the Central Valley Project. 8. Advocate for Congressional, legislative, or administrative actions on matters relating to overly burdensome reporting and compliance requirements established by the North American Reliability Corporation (NERC), the Federal Energy Regulatory Commission (FERC) or the Western Electricity Coordinating Council (WECC). Federal, State and Regional 9. Support fair and reasonable application of grid reliability requirements established by NERC, WECC, or FERC and seek Congressional remedies (if needed) for punitive application of fees and fines. Federal and Regional 10. Work with CAISO or through FERC: to give buyers of renewable intermittent resources relief from imbalance penalties; and to promote financial and operational changes that result in timely and accurate settlement and billing; and. Tto provide critical input on the need for various transmission projects in light of the escalating costs to the City to import power using the bulk transmission system. Federal and State 11. Monitor cyber security issues to ensure that CPAU, which currently does not have critical cyber assets, retains local control over its cyber security needs while remaining exempt from NERC cyber security standards. Support NCPA to protect it and its member agencies from unnecessary cyber security regulations. Federal and Regional Utilities Legislative Policy Guidelines January 2015 Update Page 8 of 17 FIBER OPTIC Goals 1. Preserve and enhance the authority of local government to develop broadband solutions that align with community needs and expand consumer choice for competitive Internet connectivity and other advanced services delivered over fiber-optic networks. 2. Encourage the competitive delivery of broadband services by permitting the use of public rights-of- way and Utilities infrastructure in a responsible manner, provided that local rights of way authority and management is preserved and the this use does not compromise the City’s existing utility safety and services obligations. 3. Support local government authority over zoning- related land use for communications infrastructure in accordance with reasonable and non-discriminatory regulations. 4. Support the Council’s Technology and the Connected City initiative to fully leverage the City’s fiber- optic asset. Goals Legislative Policy Guidelines Venue 1. Support Municipal Delivery 2. Competitive Delivery 3. Local Authority over Land Use 4. Support Council Initiatives 1. Advocate for these goals through the American Public Power Association (APPA), California Municipal Utilities Association (CMUA), National Association of Telecommunications Officers and Advisors (NATOA), National League of Cities (NLC), and the Next Century Cities initiative (NCC), with support from City staff. Federal and State 2. Support legislation and regulations that preserve and enhance municipal delivery of conventional and advanced telecommunication services as prescribed by the Telecommunications Act of 1996. Federal and State 3. Support the goals of the National Broadband Plan, issued in 2010 by the Federal Communications Commission (FCC), to improve Internet access in the United States Federal and State 4. Oppose legislation and regulations that benefit the incumbent cable TV and telephone companies at the expense of community-owned fiber-optic and Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 9 of 17 Goals Legislative Policy Guidelines Venue 1. Support Municipal Delivery 2. Competitive Delivery 3. Local Authority over Land Use 4. Support Council Initiatives wireless networks. 5. Support legislation and regulations that preserve and enhance consumer protections when dealing with the incumbent providers of telecommunication services. Federal and State 6. Support legislation and regulations that encourage the competitive delivery of broadband services by permitting the use of public rights-of- way and Utilities infrastructure: Support legislation and regulations that preserve local rights-of-way authority and management; Support legislation and regulations that preserve local government zoning and siting authority for wireless and wireline communication facilities; and Oppose legislation and regulations that reduce compensation received by local governments for the use of the public rights-of-way and other public properties that support communication infrastructure (e.g., utility poles, streetlight poles, ducts and conduits). Federal, State and Local Utilities Legislative Policy Guidelines January 2015 Update Page 10 of 17 NATURAL GAS Goals 1. Preserve/enhance the ability of municipal utilities to develop their own demand side efficiency and conservation programs, alternative gas supplies, and rate structure. 2. Increase the security and reliability of the gas supply and transmission infrastructure. This includes retaining access to intra- and interstate gas transmission systems to reliably serve customers. 3. Support efforts to reduce greenhouse gas emissions and protect the environment. 4. Preserve just and reasonable utility rates/bills established by local governing bodies. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability of Infrastructure 3. Environ- ment 4. Cost Control 1. Advocate most of these goals mainly through the American Public Gas Association (APGA) with minor support from Palo Alto staff. Primarily Federal with minor advocacy at State level 2. Work with Northern California Power Agency (NCPA) and California Municipal Utilities Association (CMUA) to the extent that the City’s goals as a gas distributor align with generators’ use of natural gas. Federal and State 3. Support increased cost effective production/incentives for renewable gas supplies from in or out of state sources. Federal and State 4. Advocate for financing or funding for cost-effective natural gas efficiency and solar water heating end uses. Federal and State 5. Support market transparency and efforts to eliminate market manipulation through reasonable oversight. Federal 6. Support municipal utilities’ ability to enter into pre-pay transactions for gas supplies. Federal 7. Support efforts to improve pipeline safety. Work with partners to Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 11 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability of Infrastructure 3. Environ- ment 4. Cost Control discourage extension of CPUC regulatory authority over municipal gas operations. Oppose legislative proposals resulting in unreasonable costs for Palo Alto’s customers. 8. Work with partners to discourage extension of CPUC regulatory authority over municipal gas operations. State 9. Oppose legislative proposals resulting in unreasonable costs for Palo Alto’s customers. Federal and State 8.10. Support cap-and-trade market designs that: protect consumers from the exercise of market power; allocate allowances that help mitigate impacts to Palo Alto customers while providing incentives for natural gas utilities to move to lower GHG emission portfolios; advocate for an allowance allocation methodology that provides flexibility for Palo Alto to structure rates to align GHG costs and revenues; provide flexible compliance mechanisms such as banking and borrowing of allowances; and allocate funds generated from cap-and-trade markets to GHG related activities, not as a revenue source for state or federal general funds. Federal and State 9.11. Support legislation that aims to protect public health and encourages transparency regarding the practice of hydraulic fracturing or “fracking” for natural gas Federal and State Utilities Legislative Policy Guidelines January 2015 Update Page 12 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliability of Infrastructure 3. Environ- ment 4. Cost Control development, but not blanket moratoriums that aren’t supported by science. Utilities Legislative Policy Guidelines January 2015 Update Page 13 of 17 WASTEWATER COLLECTIO N Goals 1. Support ability of municipal utilities to develop and manage their own conservation and efficiency programs and retain authority over ratemaking, including the imposition of non-volumetric customer meter or infrastructure charges for wastewater collection service. 2. Increase the reliability of the local wastewater collection systems. 3. Maintain the provision of an environmentally sustainable, reliable high quality and sustainable wastewater collection service at a fair price. 4. Support equal comparisons of wastewater collection systems by regulatory agencies in order to minimize and reduce onerous, costly and time-intensive reporting requirements and improve value and accuracy of information reported to the public. Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliable Infrastructure 3. Maintain service 4. Valuable reporting 1. Advocate goals through active participation in the Association of Bay Area Governments (ABAG). Local, Regional & State 2. Advocate forSupport future regulations of wastewater collection systems that include the following requirements::recognize the following: timely rebuilding of the local wastewater systems;local jurisdictions’ proactive efforts to replace and maintain wastewater collections systems; maintains the quality of delivered wastewater collection service; minimizes any increase in ththe need to provide affordable and cost basede cost of wastewater collection service; and the unique characteristics of each collection system.creates no additional exposure to more frequent or severe wastewater overflows; and supports the existing wastewater collections Local, Regional & State Utilities Legislative Policy Guidelines January 2015 Update Page 14 of 17 Goals Legislative Policy Guidelines Venue 1. Local Accountability 2. Reliable Infrastructure 3. Maintain service 4. Valuable reporting systems and their operation. 3. Support provision of sufficient resources for regional agencies to enable them to advocate for: environmentally sustainable, reliable wastewater collection service at a fair price; and regional comparisons of wastewater collection projects for future state grant funding. Local and Regional 4. Support infrastructure security and reliability including equitable allocation of funds for increasing the security of infrastructure. Regional, and State 5. Advocate for funding and local regulations for wastewater collections system projects and requirements that reduce overflows and improve collection system efficiency. Regional, State and Federal Utilities Legislative Policy Guidelines January 2015 Update Page 15 of 17 WATER Goals 1. Support ability of municipal utilities to develop and manage their own conservation and efficiency programs and retain authority over ratemaking, including the ability to optimize volumetric and fixed charges to balance the goals of revenue certainty and water use efficiency. 2. Increase the security and reliability of the regional water system owned and operated by the San Francisco Public Utilities Commission (SFPUC). 3. Support efficiency and recycled water programs in order to minimize the use of imported supplies. 4. Maintain the provision of an environmentally sustainable, reliable supply of high quality water at a fair price. Goals Legislative Policy Guidelines Venue 1. Local Authority 2. Reliable Infrastructure 3. Minimize imports 4. Supplies at fair cost 1. Advocate goals through active participation in the Bay Area Water Supply and Conservation Agency (BAWSCA) and California Municipal Utilities Association (CMUA), with support from Palo Alto staff for BAWSCA and the San Francisco Bay Area Regional Water System Financing Authority (RFA). Local, Regional and State 2. Participate in California Urban Water Conservation Council (CUWCC) Best Management Practice (BMP) revisions and development to ensure that aggressive and cost-effective efficiency goals are incorporated and operating proposals are reasonable, achievable, and cost-effective. State 3. Advocate to ensure that legislative actions regarding the Hetch Hetchy Reservoir and conveyance system Regional Water System include the following requirements: timely rebuilding of the regional water system; maintains the quality of delivered water; minimizes any increase in the cost of water; creates no additional exposure to more frequent or severe water shortages; supports the existing water system and Local, Regional and State Utilities Legislative Policy Guidelines January 2015 Update Page 16 of 17 Goals Legislative Policy Guidelines Venue 1. Local Authority 2. Reliable Infrastructure 3. Minimize imports 4. Supplies at fair cost its operation. 4. Advocate for interpretations or implementation of Water Code provisions (such as those enacted by AB 1823 (2002), AB 2058 (2002) and SB 1870 (2002)) that maintain or reinforce the authorities and protections available to the City and BAWSCA members outside of San Francisco. Local, Regional and State 5. Support provision of sufficient resources for BAWSCA to enable it to advocate for: an environmentally sustainable, reliable supply of high quality water at a fair price; a SFPUC rate structure that is consistent with the Water Supply Agreement and is based on water usage;. a contract amendment to modify the drought time water allocation between the SFPUC and the BAWSCA agencies; preservation of Palo Alto’s existing contractual water allocation and transportation rights on the SFPUC Hetch Hetchy system; and regional planning for conservation, recycled water, and other water supply projects. Local and Regional 6. Advocate for actions that: actions that preserve Palo Alto’s existing contractual rights; and supporting actions that preserve local control over water use and limit encroachment from outside jurisdictions. Local and Regional 7. Support infrastructure security and reliability including an interconnection between the SCVWD West Pipeline with the SFPUC’s Bay Division Pipelines 3 and 4. Regional and State 8. Support notification requirements that informaid residents/customers but do not State Utilities Legislative Policy Guidelines January 2015 Update Page 17 of 17 Goals Legislative Policy Guidelines Venue 1. Local Authority 2. Reliable Infrastructure 3. Minimize imports 4. Supplies at fair cost inflict undue or unobtainable requirements on the utility. 9. Support local control of public benefit funds funding levels and program design. State 10. Support beneficiary pays methodologies to prevent taxes or fees, in particular those imposed on SFPUC customers, to fund infrastructure improvements and costs of other water sources such as the Delta. State and regional 11. Advocate for financing or funding for water conservation programs and recycled water projects that meet end-use needs and conserve potable water and oppose legislation that would reduce such funding. State, Regional and Federal 12. Support infrastructure security and reliability that includes equitable allocation of funds for increasing the security of infrastructure and that protects the City from unnecessary regulations. Local, State and Federal 13. Support legislation that promotes responsible groundwater management while recognizing Palo Alto’s existing and historical groundwater extraction practices. State 14. Support Proposition 218 reform efforts to provide ratemaking flexibility to balance conservation, revenue sustainability, and low income programs. State ATTACHMENT C 1 Review of Legislative Activities in 2014 City of Palo Alto Utilities (CPAU) staff participates on the legislative committees of the California Municipal Utilities Association (CMUA) and the Northern California Power Agency (NCPA). 2014 was year two of California’s two-year 2013-2014 legislative session. September 30th, 2014 was the final day for the Governor to sign or veto bills passed by the legislature during this session. This was a relatively quiet year for energy and water legislation. Bills that were signed by the Governor this year have little immediate or direct impact to CPAU as a publicly owned utility (POU) and so CPAU did not take any formal positions on utility related bills this year. Following is a summary of the state and federal legislative issues CPAU staff has been following this year, along with any positions taken by NCPA and CMUA. State Legislative Issues Energy Related Bills SB 699 (Hill) – Approved by Governor (Chapter 550, Statutes of 2014). This statute directs the California Public Utilities Commission (CPUC) to begin a new proceeding or a new phase of an existing proceeding to consider adopting rules to address physical security risks to the distribution systems of electrical corporations. The motivation behind this legislation was the April 2013 sniper attack on the Metcalf substation (a major PG&E substation). While CMUA and NCPA did not take a position, the CPUC has taken an interest of late in POU safety and reliability matters so it is possible there may be POU focused legislation in the near future or increased interest from the CPUC on what POUs are doing to address safety issues on their systems. SB 1414 (Wolk) – Approved by Governor (Chapter 627, Statutes of 2014). This statute requires Investor Owned Utility (IOU) resource adequacy plans to reflect new or existing demand response products. The objective is to facilitate the economic dispatch and use of demand response that can either meet or reduce an IOU’s resource adequacy requirements, as determined by the CPUC. CMUA had a watch position due to potential for future legislation to impose a similar requirement on POU’s. How the CPUC determines demand response resource counting for resource adequacy purposes may also be of interest to Palo Alto in terms of establishing DR benefits to the City. AB 1782 (Chesbro) – Approved by Governor (Chapter 332, Statutes of 2014). This statute, supported by NCPA and CMUA, makes it a crime for any person to unlawfully and maliciously disconnect or cut a line of telegraph, telephone, or cable television, or any line used to conduct electricity. It also significantly raises the criminal penalties and fines from a maximum of $500, to a maximum of $10,000 for a felony conviction, and a maximum of $1,000 for a misdemeanor conviction. While this is not a big issue in Palo Alto, it is important to have the tools to address criminal actions against public infrastructure. ATTACHMENT C 2 AB 2188 (Muratsuchi) – Approved by Governor (Chapter 521, Statutes of 2014). This statute requires a city and/or county to adopt, by September 30, 2015, an ordinance that creates an expedited, streamlined permitting process for small residential rooftop solar energy systems that substantially conforms with the most current version of the California Solar Permitting Guidebook to be adopted by the Governor’s Office of Planning and Research. While this is not a utility specific statute (it applies to all cities whether or not they own an electric utility), NCPA and CMUA have opposed it, as has the League of California Cities. NCPA’s concern is that, until this time, the California Solar Permitting Guidebook (Guidebook) has been a voluntary initiative, particularly since the Guidebook is currently in draft form. Palo Alto has already streamlined its rooftop solar permitting process and so the impact of this legislation is expected to be minimal. AB 2218 (Bradford) – Approved by Governor (Chapter 581, Statutes of 2014). This statute encourages the governing board of each local electric POU to develop and implement a program of rate assistance to eligible food banks. POUs were included in a last minute amendment that was not caught by CMUA until it passed, and was delivered to the Governor. CMUA attempted to get the Governor to veto, but was unsuccessful. The statute encourages publicly owned utilities to offer rate assistance to food banks in their service territory that participate in the Emergency Food Assistance Program administered by the Food and Nutrition Service of the United States Department of Agriculture. According to the State Department of Social Services, Santa Clara County has one such food bank, located in San Jose. Although this bill does not apply to Palo Alto at this time, CMUA is concerned with language in the statute that directs POUs to develop rates consistent with those developed by the CPUC for electric corporations, as this creates a new precedent for on rate design that potentially intrudes on a Council’s rate making authority. AB 2363 (Dahle) – Approved by Governor (Chapter 610, Statutes of 2014). This statute requires the CPUC to include grid integration costs as part of the procurement process for investor owned utilities IOU’s. The statute would effectively penalize variable and intermittent energy sources such as wind and solar with additional integration costs and would favor base load renewable generation such as geothermal. While the statute does not apply to POU’s like CPAU, it is possible future legislation could expand the requirement to POU’s. Natural Gas Related Bills AB 1937 (Gordon) – Approved by Governor (Chapter 287, Statutes of 2014). This statute requires a gas utility to notify schools and hospitals of non-emergency work when the work is located within 500 feet of the facility. While it does not currently apply to POUs, CPAU routinely notifies adjacent customers when there is work on the gas delivery system. Water Related Bills Water Bond – Approved by Governor and approved by voters in November 2014 as Proposition 1. In mid-August the Legislature approved and the Governor signed, the "Water Quality, Supply, and Infrastructure Improvement Act", a $7.54 billion bond measure. The measure ATTACHMENT C 3 replaced the 2009 $11.1 billion bond measure. The new bond provides funding for regional water reliability, groundwater management and cleanup, water recycling, watershed protection, water conservation, flood management and funding to enhance local, regional and state water quality and supply. Since the funds will be distributed through several state agencies by a competitive process, the guidelines and timelines for grant funding are not available at this time. SB 1036 (Pavley) - Approved by Governor (Chapter 485, Statutes of 2014). This statute would authorize an urban water supplier to voluntarily include within its Urban Water Management Plan (UWMP) certain energy-related information, including, but not limited to, an estimate of the amount of energy used to extract or divert water supplies. SB 1036 also requires the Department of Water Resources (DWR) to develop a methodology for the estimation of the energy intensity of urban water systems. This was introduced following a recommendation from a February 2014 report from a DWR task force that recommended allowing suppliers to include in their UWMP the energy intensity of water delivered to their customers. Given the City’s low energy intensity of its water delivery system, it is undecided if this will be included in the next UWMP. SB 1168 (Pavley) – Approved by Governor (Chapter 346, Statutes of 2014.) This statute requires a local agency to determine the sustainable yield of a groundwater basin in coordination with other local agencies. The goal of the legislation is to address increasing concern over sustainable groundwater yields in the face of increasing withdrawals, especially during dry years. Since the Santa Clara Valley Water District manages the groundwater basin in Santa Clara County, staff anticipates this bill will not have much impact in Santa Clara County. SB 1345 (Committee Bill) – Approved by Governor (Chapter 489, Statutes of 2014). This statute extends the sunset date for the Wholesale Regional Water System Security and Reliability Act to 2022 to continue state and local oversight over the SFPUC’s Water System Improvement Program to rebuild the Regional Water System (“Hetch Hetchy” system). The City receives 100% of its potable supplies from the SFPUC and is paying a proportional share of the upgrades to the system. Since it is in the City’s best interest that the current oversight is maintained until all work is complete, the City sent a letter in support of the bill. SB 1420 (Wolk) – Approved by Governor (Chapter 490, Statutes of 2014). This statute adds three new requirements to UWMP’s. The City updates its UWMP every five years with the next update due in 2015. This legislation will require the City to report on water losses and water savings estimates from adopted regulations and plans and to submit the UWMP electronically if possible. CMUA supported the changes. AB 1739 (Dickinson) – Approved by Governor (Chapter 347, Statutes of 2014. This Statute requires a groundwater sustainability agency to submit a groundwater sustainability plan to the DWR for review upon adoption. This Statute is related to SB 1168 (described above) in that it would empower DWR to review local agency determinations on sustainable yield and groundwater management. Since the Santa Clara Valley Water District manages the ATTACHMENT C 4 groundwater basin in Santa Clara County, staff anticipates this bill will not have much impact in Santa Clara County. AB 2067 (Weber) - Approved by Governor (Chapter 463, Statutes of 2014). This statute streamlines the discussion of water demand management measures in UWMP’s and also extends the due date for 2015 UWMP’s to July 1st, 2016. In the 2010 UWMP, the City provided detailed information on demand management measures and staff anticipates the new requirements will allow for more efficient reporting of demand management measures in the 2015 UWMP cycle. AB 2403 (Rendon) – Approved by Governor (Chapter 78, Statutes of 2014). This statute codifies a recent court case, Griffith v. Pajaro Valley Water Management Agency, to modify the Government Code’s definition of “water" to include any system of public improvements intended to provide for the production, storage, supply, treatment, or distribution of water. This means that public agencies can now use Proposition 218’s notice and public hearing process (currently required for most water, sewer and wastewater rate increases) for stormwater management and recycled water charges as well. CPAU is currently evaluating a recycled water project and this will clarify how recycled water will be treated for ratemaking purposes. CMUA supported AB 2403. AB 2434 (Gomez) – Approved by Governor (Chapter 738, Statutes of 2014). This statute provides a five year exclusion from gross income for any amount received as a rebate, voucher, or other financial incentive issued by a local water agency or supplier for participation in a turf removal water conservation program. This legislation was needed to address the lack of clarity on potential state tax liabilities associated with customer water rebates. CMUA was supportive of AB 2434. Federal Legislative Issues Following their August recess, Congress returned with a short amount of time before the November elections and a number of priority issues to contend with. Congress passed a Continuing Resolution funding the government at FY14 levels through Dec. 11, with the possibility of another government shutdown on the horizon. While the Republicans regained control of Congress, it is still unclear what that means for the post-election lame duck session which must, at a minimum, fund the government for the remainder of fiscal year 2014. Some are predicting the lame duck session will be uneventful, with Republicans preferring to pass a short-term funding bill and defer most issues to next year when they will have a stronger hand. Other actions could include extension of expiring tax provisions, including the production and investment tax credits for renewable energy projects, and action on cybersecurity information sharing legislation sponsored by Senator Dianne Feinstein (D-CA), S. 2588, which was approved by the Senate Intelligence Committee in July. Senate Republican Leader Mitch McConnell has expressed a desire to use the lame duck session to wipe the slate clean so Republicans can focus next year on their legislative priorities. ATTACHMENT C 5 Other common CPAU and NCPA legislative priorities include the drought, grid reliability, Commodity Futures Trading Commission (CFTC) swaps issues and efforts with the Bureau of Reclamation to address Central Valley Project power customers paying a disproportionately higher assessment of the environmental Restoration Fund than intended in the Central Valley Project Improvement Act (CVPIA). EPA Emission Standard The Environmental Protection Agency’s (EPA) has proposed rules intended to significantly reduce the amount of greenhouse gas emissions across the nation, under section 111(d) of the Clean Air Act. These rules apply to electric generating units as well as other sources of GHG emissions. Preliminary analysis indicates the new rules will likely have minimal impact in California, though the treatment of hydropower remains uncertain and questions remain how the EPA’s proposal will be incorporated into the State’s existing GHG policies and regulations. California’s regulatory agencies believe that the emissions reductions can be achieved through the cap-and-trade program, the existing 33% renewable portfolio standard mandates, and the additional measures addressed in the scoping plan update currently underway at the Air Resources Board. Grid Reliability There have been recent developments at the Federal Energy Regulatory Commission (FERC), where FERC staff and Commissioners continue to question the value of North American Electric Reliability Corporation (NERC) Risk-based Registration Initiative, an effort being undertaken to reduce the compliance burdens of smaller utilities by removing them from the NERC registry provided that they do not have a material impact on the nation’s bulk electric system. Palo Alto supports efforts to rationalize the registration process so that resources, at federal, regional and local levels, can be focused on those issues that have a material impact on grid reliability. Palo Alto’s distribution system, in particular, does not impact the bulk grid reliability Drought Another key policy objective for the California members of Congress continues to be the focus on resolving differences between the competing drought relief bills passed by the House and Senate in order to send a final compromise to the President for signature. With the Republicans firmly in control of Congress, it is unclear what will happen during the lame duck session or if drought related legislative actions will be carried over to the new session. CFTC swap dealer definition On September 24, the Commodity Futures Trading Commission (CFTC) granted the relief sought by public power systems, and exempting utility operations-related swaps from the $25 million “special entity” swap dealer threshold. With approval of this rule, public power systems will be on equal footing with private utilities and should regain access to counterparties for swap transactions. ATTACHMENT D EXCERPTED DRAFT MINUTES OF THE DECEMBER 10, 2014 UTILITIES ADVISORY COMMISSION MEETING ITEM 5 (Original Agenda New Business Item 4 – part one, legislative guidelines related to all utilities except water): ACTION: Staff Recommendation that the Utilities Advisory Commission Recommend that the City Council Adopt a Resolution Approving the Amended City of Palo Alto Utilities Legislative Policy Guidelines Senior Resource Planner Nico Procos explained that staff split this item into two parts - the first part discussing the guidelines for everything but the water utility and the second part related to just the water utility to allow Commissioner Hall to participate in part one and then leave the meeting (due to a self-identified conflict related to water issues). Procos provided a summary of the written report. He noted that the guidelines in the past were designated to calendar years; starting this year the guidelines will not sunset at the end of the calendar year but continue until updated. Staff still commits to an annual update of the guidelines. Procos provided a summary of the key State issues in 2015, which could include changes to the Renewable Portfolio Standard (RPS), new greenhouse gas (GHG) targets, the next generation of net energy metering, potential carve-outs for certain resources, and issues related to low- income and disadvantaged communities. Key Federal issues include issues related to the Federal power marketing, cybersecurity, grid reliability, emissions standards, and budget and tax reform. Procos walked through the proposed changes and additions to the guidelines, which were provided as Attachment B to the written report. Commissioner Hall enquired why the wastewater guideline #2 regarding exposure to wastewater overflows had been removed. He mentioned that during wet weather events water can get diverted into the sanitary sewer and cause overflows. Procos mentioned he had heard about such incidents, but the treatment plant has excess capacity to handle increased flows so this is not anticipated to be an issue. Vice Chair Waldfogel asked if gas guideline #3 moved us to or away from supporting or opposing disclosure of fracking chemicals since it would increase the cost of gas supplies. Compliance Manager Debra Lloyd responded that this guideline was not intended to address fracking of natural gas, rather it was intended to support equal treatment for in-state vs out-of- state renewable gas production. Lloyd referred to Natural Gas guideline #11 that provides direction on supporting transparency regarding fracking, but not blanket moratoriums. ACTION: Commissioner Cook made a motion that the UAC recommend that the City Council adopt a resolution approving the Utilities Legislative Policy Guidelines covering everything but the Water Utility. Commissioner Eglash seconded the motion. The motion carried unanimously (6-0 with Commissioner Chang absent). At this point in the meeting, Commissioner Hall left the meeting due to a self-identified conflict of interest on water issues. ITEM 6 (Original Agenda New Business Item 4 – part two, legislative guidelines related to the water utility): ACTION: Staff Recommendation that the Utilities Advisory Commission Recommend that the City Council Adopt a Resolution Approving the Amended City of Palo Alto Utilities Legislative Policy Guidelines Senior Resource Procos continued with part two related to the water utility. Procos provided a summary of 2014 legislation of interest that impacted the water utility and then discussed issues staff anticipates for 2015. He noted that the key State issues for water include water sector GHG emissions, changes to the requirements for the Urban Water Management Plan and issues with respect to low-income/disadvantaged communities. Key Federal issues include cost allocation for the Delta tunnels and drought. Procos described each of the changes to the water utility guidelines, which were provided as Attachment B to the written report. Commissioner Melton inquired about water guideline #13 and if, given that groundwater extraction in Central Valley is being called into question, this guideline would involve the City in the tension between urban and agricultural use of groundwater. Procos responded that the intent of guideline #13 is to support groundwater management, but as the City has made investments in new wells and has certain assumptions regarding the use of those wells, the City has an interest in ensuring that no new proposals may impact those assumptions. Commissioner Melton agreed that adding the word "Palo Alto" to the guideline would better clarify the intent. Vice Chair Waldfogel discussed water guideline #10 and the issue regarding State Water Project tax collections. He suggested the venue be adjusted to make it State + regional. ACTION: Commissioner Eglash made a motion that the UAC recommend that the City Council adopt a resolution approving the proposed Utilities Legislative Policy Guidelines for the Water Utility, with the two proposed changes. Commissioner Cook seconded the motion. The motion carried unanimously (5-0 with Commissioner Hall recused from the motion and Commissioner Chang absent). City of Palo Alto (ID # 5367) City Council Staff Report Report Type: Inter-Governmental Legislative Affairs Meeting Date: 1/12/2015 City of Palo Alto Page 1 Summary Title: Draft Legislative Program Manual and Draft Semi -Annual Legislative Strategic Initiatives Title: Review and Approval of the Draft Legislative Program Manual and Draft Semi-Annual Legislative Strategic Initiatives From: City Manager Lead Department: City Manager Recommendation Policy and Services Committee and Staff recommend that Council review and approve, or modify and approve the attached Legislative Program Manual and the Spring 2015 Semi-Annual Legislative Strategic Initiatives document. Policy & Services Committee at their November 13, 2014 meeting unanimously approved them on a 3-0 vote, Scharff absent. Background The Legislative Program Manual as drafted is intended to serve as an ongoing guide to the City’s state and federal legislative programs. This document is intended to be reviewed and updated every two to three years but should generally remain unchanged (assuming the City maintains its current legislative program management format). The Legislative Program Manual includes General Guiding Principles in addition to procedures for handling legislative issues such as correspondence, policy formation, and advocacy. The Semi-Annual Legislative Strategic Initiatives document provides additional policy direction to the City Council, City staff, and the City’s state and federal legislative advocates on policy issues outside of the General Guiding Principles (which is a section of the Legislative Program Manual). This document is intended to be vetted and revised semi-annually in the Fall and Spring by the Policy & Services Committee with the City’s state and federal legislative advocates in attendance. Fall Meeting The Fall meeting will include a review of what has occurred so far that year followed by a proactive planning session focused on what types of legislation, or legislative City of Palo Alto Page 2 positions, the City should advocate for in the upcoming year. Spring Meeting The Spring meeting will include a review of what has occurred so far that year and how the City should react to what has occurred such as drafting letters of support or opposition on existing bills or issues. These semi-annual meetings are intended to give the Policy & Services Committee the opportunity to strategically update the Semi-Annual Legislative Strategic Initiatives document based on the current legislative environment. Following that process the document would then go to Council for review and approval. Attached for your review are the following: A. The Legislative Program Manual B. The Spring 2015 Semi-Annual Legislative Strategic Initiatives document C. The Policy and Services Committee excerpt minutes_11-13-2014 Also, below, are a few additional areas of clarification: The Semi-Annual Legislative Strategic Initiatives document contains possible areas of legislative focus this year and will need Council’s review and approval. These reflect the Policy and Services Committee’s recommendation, however Council will need to adopt or modify these before they can be used to inform specific legislation or City action on other legislative fronts. Due to the unique objectives of the Utilities Department, Utilities specific legislative guiding principles are developed and updated annually and are then reviewed and approved by the Utilities Advisory Commission and Council. The timing of the Utilities specific legislative guidelines is sequenced to accommodate Public Power efforts in Sacramento and Washington DC through the joint action agencies/associations in which the City participates. Staff managing the City’s legislative program, including staff from Utilities and the City Manager’s Office, participate in multiple conference calls monthly with the City’s state and federal legislative advocates to ensure that all parties are working towards legislative objectives that are in the best interest of the City as a whole. In addition to this, staff also works on issues that come-up throughout the year outside of the routine legislative program procedures. All strategic legislative documents will be dated to clarify which is the most recent and what positions the City has taken in the past. Attachments: Attachment A - Draft Legislative Program Manual_12-1-2014 (DOC) City of Palo Alto Page 3 Attachment B - Draft Spring 2015 Semi-Annual Legislative Strategic Initiatives_12-1-2014 (DOC) Attachment C - Draft Policy and Services Committee Excerpt Minutes_11-13-2014 (DOCX) Draft City of Palo Alto Legislative Program Manual Table of Contents Table of Contents p. 1 Policy Statement p. 2 General Legislative Priorities p. 2 Semi-Annual Legislative Strategic Initiatives p. 3 Basic Steps in the City’s Legislative Program p. 4 Internal Coordination of the Legislative Program p. 5 The Role of the City Council p. 6 The Role of the City Manager's Office p. 7 The Role of City Departments p. 8 Guidelines for Evaluating Legislation p. 9 Legislative Advocacy p. 11 Lobbying Methods p. 13 Guidelines for Letter Writing p. 15 Procedure for City Council Meetings with Other Elected Representatives p. 16 State Legislative Timeline p. 17 Draft Legislative Program Manual Page 2 Policy Statement The objective of the City of Palo Alto legislative program is to keep the City Council, community and staff fully advised of proposed legislation with a potential impact upon the City. It is the City's general policy to take timely and effective action in support of, or opposition to, proposed legislation affecting Palo Alto at the County, State, and Federal levels. In addition, the City, where appropriate, will take the initiative to seek introduction of new legislation beneficial to Palo Alto. General Legislative Priorities 1. Protect local revenue sources and prevent unfunded mandates. Oppose Federal or State legislation, policies and budgets that have negative impacts on services, revenues and costs. Ensure that legislation, policies and budgets do not detract from Palo Alto’s ability to draw on local revenue sources. 2. Protect and increase funding for specific programs and services. Support County, State and Federal funding for local service by maximizing existing funding levels and seeking new and alternative funding for programs. Promote increases in the allocation of funds to cities and flexibility in distribution. 3. Protect and increase local government discretion and oppose legislation, policies and budgets that reduce the authority and/or ability of local government to determine how best to effectively operate local programs, services, and activities. Draft Legislative Program Manual Page 3 Semi-Annual Legislative Strategic Initiatives The Semi-Annual Legislative Strategic Initiatives provides additional policy direction to the City Council, City staff, and the City’s state and federal legislative advocates on policy issues outside of the General legislative Priorities. The document is to be updated semi- annually in the fall and the spring. The fall update would include a review of what has occurred so far that year followed by a proactive planning session focused on what types of legislation, or legislative positions, the City would like to advocate for in the upcoming year. The spring update would include a review of what has occurred so far that year and would be a more reactive session focused on what has occurred thus far that year and how the City should respond to existing bills or issues. When relevant, the Council’s annual priorities may help inform the City’s position on legislation. All Semi-Annual Legislative Strategic Initiative documents will be dated for clarity on which is the most recent and what positions the City has taken in the past. Draft Legislative Program Manual Page 4 Basic Steps in the City's Legislative Program Draft Legislative Program Manual Page 5 Internal Coordination of the Legislative Program The basic steps in the City's legislative program are illustrated in the diagram above. 1. Legislation is brought to the City's attention by several means: the City’s lobbyists, the League of California Cities, the National League of Cities, Council Members, City staff, citizens, professional or governmental newsletters, legislators, etc. 2. The City Manager's Office reviews the proposed legislation (the bill text) and, if warranted, requests assistance from one or more departments. Departments are urged to take the initiative to identify legislation of importance to the City and not wait for the City Manager's Office to ask for their involvement. 3. The Department evaluates the bill for its impact upon Palo Alto, recommends a position and potential action, and drafts a statement or letter for use by the City Manager's Office, as appropriate. 4. At this juncture, action can proceed in either of two ways: a. If the Council has previously adopted a policy directly relevant to the legislation, the City Manager's Office proceeds to prepare a letter for the Mayor's signature; b. If the Council policy relative to the legislation does not exist, or if the issue is politically controversial, or if there is significant local interest in the issue, the proposed legislation is referred to Council. (See Legislative Advocacy) 5. The Council will consider the information provided in a staff report, determine its position on the legislation, and provide direction to staff. 6. The City Manager's Office coordinates the lobbying activities according to Council direction through this manual. 7. The Council will connect with the various legislative bodies in several ways throughout the year: a. Joint meetings with elected representatives b. Visits to Sacramento and Washington DC c. Direct contact with elected officials Draft Legislative Program Manual Page 6 The Role of the City Council The City Council has ultimate responsibility for determining the position the City shall take on legislative issues. Council positions applicable to legislation accumulate over the years and require periodic reevaluation to assure they are still relevant to the City's needs and interests. The Council generally takes positions only on issues that are of relevance to the City of Palo Alto. The Council's specific responsibilities include: Conduct an annual review and update of legislative priorities at both the State and Federal levels. Meet annually with the City's state and federal lobbyist to establish state and federal legislative priorities and strategies. Establish legislative priorities, taking into account the Council priorities adopted each year. Consider legislative issues brought to the Council's attention by staff, citizens, organizations and others and determine what, if any, position the City should take. Determine Council positions on resolutions proposed for adoption by the League of California Cities and the National League of Cities. Suggest areas for staff action concerning legislation. Assume an active advocacy role with legislators on behalf of the City. This may include travel to Washington, DC and/or to Sacramento. Any such travel will be consistent with current City travel policies. Draft Legislative Program Manual Page 7 The Role of the City Manager's Office The City Manager's Office is the central coordinator of the City's legislative program. The responsibilities and activities of the office include the following: Ensure the consistency of legislative policy throughout the City. Serve as a clearinghouse and record keeper for all legislative activity occurring with the City. Coordinate contacts and communications with legislators and staff. Coordinate the evaluation of proposed legislation that may affect the City. Disseminate information on legislation of interest to departments within the City. Encourage suggestions from departments concerning subjects for legislative action. Provide feedback to departments on progress of legislation of interest. Keep Council informed on the status of the City's legislative work. Recommend priorities for legislative action to support the City’s lobbying activities. Plan, coordinate, and facilitate lobbying activities by Council Members and City staff. Maintain legislative files (bill texts, correspondence, records of lobbying activity, background information, Council policies). Serve as the liaison to the League of California Cities, National League of Cities, and other organizations and jurisdictions concerning legislative activities. Coordinate the annual review of legislative positions and preparation of the City's legislative platform. When requested, to ensure policymakers are briefed prior to attending forums in which they represent the City. Prior to regional meetings, staff shall inform Council representatives/liaisons of relevant legislative updates and/or staff work on related topics. Draft Legislative Program Manual Page 8 The Role of City Departments The participation of various departments within the City is essential to the success of the Legislative Program. The program requires departments to take responsibility for identifying, evaluating, and monitoring legislation that relates to their functional areas. The program must be cooperative and interactive. Effective lobbying and testimony depends on factual data concerning the impacts and implications of proposed legislation upon the City's operations, services, and finances. The responsibilities of the departments include the following: Inform the Manager's Office of legislative issues of importance to the City. Designate a key contact within the department or division who will be responsible for coordinating the evaluation of legislation and monitoring those legislative issues of direct significance to the department. Continue to monitor bills as they progress through the Legislature or Congress. Establish a system within the department for assuring that requests for legislation evaluation are responded to promptly. Draft letters and provide analysis of legislation as requested by City Manager's Office. Maintain a legislative file with the department to assure consistency of policy recommendations. Establish mechanisms within the department for accessing direct information on legislation, e.g. computer networks, newsletters, etc. Network with other cities, agencies, professional organizations, etc. to gain background information and broader perspective on legislative issues. Suggest organizations, individuals, publications, and other legislators who may be allies in lobbying the City's position on certain legislation. Become acquainted with the League of California Cities staff person with responsibility for issues related to the department. Annually, provide to the Manager's Office the department's recommendations for the ensuing year's legislative platform. This shall include: 1) a review of existing positions, 2) statements of underlying policies and principles, and 3) priorities related to specific legislative issues. Draft Legislative Program Manual Page 9 Guidelines for Evaluating Legislation Several resources are available to departments that can enable them to identify proposed legislation and track its progress. The League of California Cities and National League of Cities publications contain information on various legislation. Departments can also subscribe to legislative announcements through professional associations as well as State and Congressional websites. Bills often are amended several times between introduction and final approval. Analyses and letters expressing the City's position should always be based on the latest version. When reviewing the bill text, staff should not rely solely on the Legislative Counsel's Digest but read the entire bill. The bill will contain the new or amended language proposed. If the department wishes to compare the proposed language with the actual language of existing law, and does not have the relevant code (Government Code, Vehicle Code, Election Code, Revenue and Taxation Code, etc.) in the department, the department shall contact the proper staff member or representative with questions. If the bill is later amended, language that is deleted will be lined out and new proposed language will be shown in italics. Proper timing is vital in the legislative process. The City's views on a bill are of value only if they reach a legislator or committee before the bill is voted on. Departments should provide the City Manager's Office with information on bills of importance to the City as soon as they are aware of them. A. Citywide Perspective Often, proposed legislation will have the potential for affecting more than one department. Not always will the impact be the same. While the proposal may be beneficial from the perspective of one department, it may have negative impacts for another department. It is essential that these differences be reconciled and a common citywide position is determined. The City Manager's Office will work with Departments to reconcile differences. B. Stating the City's Position Departments should be aware of policies and programs contained in the City of Palo Alto Comprehensive Plan which relate to their area of responsibility. The City Manager's Office can verify if the League of California Cities or National League of Cities has taken a position on a bill. The most effective arguments in lobbying a bill are those which contain hard data about the effects on the City's operations and services. If the bill has potential significant effects for the City, it is well worth the time spent to assemble the examples and cost figures. The best criticism is that which contains suggestions for improvement. If there is little likelihood of defeating a bill the City opposes, indicate what could be changed to make it Draft Legislative Program Manual Page 10 more palatable. Legislators and their staffs are more receptive to communications which offer concrete ideas. If the department recommendation is to support, oppose, or amend a bill, it is important to draft the body of a letter that the City Manager's Office can use in writing to the legislators. The Manager's Office will put the letter in final form and send it to the appropriate committees, legislators, etc. A copy of the finalized letter will be routed to the evaluating department for its records. Draft Legislative Program Manual Page 11 Legislative Advocacy The Council is the official voice of the City of Palo Alto. The final authority for determining the position that shall be taken by the City on proposed legislation rests with the Council. The process outlined below would likely be followed only for controversial topics. Less controversial topics may go directly to Council. In many instances, due to timing or the nature of the issue, the Mayor may sign a letter supporting or opposing legislation on behalf of the City. This position would need to be generally consistent with the City's legislative guiding principles or the annually adopted priorities. Process 1. A legislative issue is referred to the Policy & Services Committee for review. 2. Staff generates an informational report for the Policy & Services Committee summarizing the issue. This report will include an analysis of City policy as it relates to the item, if applicable. 3. The item is agendized for a Policy & Services Committee meeting. 4. The Policy & Services Committee reviews and discusses the legislative issue at the meeting. 5. Policy & Services Committee members vote on the issue. 6. If the vote is unanimous, the matter is forwarded to the Council as consent calendar item. If the vote is not unanimous, it is forwarded to Council as an action item. If a timeliness issue exists, the item may be referred directly to Council or to Council without minutes, and a one page executive summary will be provided. If no timeliness issue exists, the item will be referred with minutes in the usual manner. Signatures on Legislative Communication Letters and other communications expressing the City's position on legislation will customarily bear the signature of the Mayor. If the legislation's principal impact is on the City’s operating procedures, the communication may be signed by the City Manager. In these instances, it may increase the effectiveness of the communication to have it co-signed by the head of the department most directly affected. In order to keep the Council and others informed of all City communications on legislation, copies of the letters will be distributed in the Council agenda packet. Draft Legislative Program Manual Page 12 Independent Lobbying by City Personnel City employees are not to lobby in the name of the City of Palo Alto unless the activity has been approved by the department head and City Manager has been informed in advance of the activity. City Advisory Commissions and Committees City employees who are staff or liaison to Council appointed advisory commissions and committees should encourage the bodies to bring to the attention of the Council proposed legislation upon which they recommend the Council take a position. Draft Legislative Program Manual Page 13 Lobbying Methods Listed here are a number of ways to inform and persuade legislators and others of the City's position on proposed legislation. Departmental participation in the planning and implementation of many of these activities is important. Departments should let the City Manager's Office know of their interest and suggestions for lobbying bills they have evaluated. Letters Letters may be drafted for: The authors of proposed legislation. The City's elected representatives in the State Legislature and Congress. The Chair and members of legislative committees. The Governor or President. If a letter is being sent within three working days of the scheduled committee hearing of a floor vote, the letter will be faxed or emailed as well. All records of faxes, mailings, and e-mail will be maintained by the City Manager's Office. Telephone Calls Phone calls are useful for communication with legislative staff regarding the content and implications of bills and for suggesting amendments or language clarifications. However, many committees' rules prevent them from counting phone calls as a legitimate expression of a City's position on a bill. Pro and con positions are recorded only if they are received in writing. Meetings It is the Council's practice to invite legislators representing Palo Alto to an annual meeting to discuss all issues of importance to the City during that legislative session. Councilmembers are encouraged to attend the National League of Cities and League of California Cities conferences and to create and maintain relationships with state and federal officials. Resolutions The Council is sometimes asked to adopt a resolution expressing its position on a bill. Resolutions are frequently sought by organizations as an indication of widespread support for a position, but they are less effective than letters when Draft Legislative Program Manual Page 14 communicating directly with a legislator. Testimony Testifying in person at a legislative committee hearing provides an opportunity to present the City's position and respond to questions. The City Manager, the Mayor, a Councilmember, or a staff person with particular expertise in a subject area are examples of appropriate speakers. Editorials Staff members must have approval from the City Manager's Office before submitting editorials to newspapers. Press Conferences Press conferences are called by the Mayor and Councilmembers and are staged in a location relevant to the issues being lobbied. Any press conference should be coordinated with the City Manager's Office. Coalitions These alliances are not limited to governmental bodies, but extend to all segments of the broader community that can similarly be affected by the legislation (e.g. business, nonprofit organization, environmental groups, etc). Draft Legislative Program Manual Page 15 Guidelines for Letter Writing Concentrate on the letter content, rather than format. The City Manager's Office will produce the final letter, addressing it to the proper legislators or committees and securing the appropriate signature. The process can be expedited if the originating department provides the draft of the letter electronically. At the very start of the letter, indicate the bill number or title that is the subject of the letter. A short concise letter is generally more effective than a lengthy one. Several short letters will carry more weight than one long letter. If there are many good arguments for supporting or opposing a bill, provide them all to the Manager's Office but in a form where they can be selectively used in several communications. Provide specific examples of the impact of the legislation on Palo Alto (e.g. estimated cost or savings, effect upon taxpayers and residents, relationship to the City's policies, programs, charter, etc). Examples should be used that may be particularly newsworthy. Relate, when feasible, to the effect the proposed legislation may have upon the legislator’s constituents. If advice is needed on what aspects of the legislation can most successfully be lobbied, or what kind of information is most needed by the legislators, it is useful to talk to the staff of the League of California Cities, of the Legislature's Committees, or of the individual legislators. The Manager's Office can provide contact names and phone numbers. Draft Legislative Program Manual Page 16 Procedure for City Council Meetings with Other Elected Representatives Typically, the Council meets annually with its County, State, and Federal representatives. These meetings are an important component of building legislative relationships and to share issues of importance to Palo Alto. These meetings should be scheduled at the appropriate times during the respective legislative calendars. Staff will schedule these meetings at the direction of the City Manager in coordination with the Council. The City Manager will seek agenda items from the Mayor and Council. Staff from the City Manager's Office will obtain agenda items from Departments and staff in the representative’s office. A meeting agenda and a potential list of topics will be published by City Clerk. Draft Legislative Program Manual Page 17 State Legislative Timeline A State legislative timeline will be provided annually for planning purposes. Draft Spring 2015 Semi-Annual Legislative Strategic Initiatives The Semi-Annual Legislative Strategic Initiatives document provides additional policy direction to the City Council, City staff, and the City’s state and federal legislative advocates on policy issues outside of the General Guiding Principles contained within the Legislative Program Manual. Listed below are possible semi-annual legislative priorities that were suggested as possibilities for Council consideration by members of the City’s Executive Leadership Team and the Policy & Services Committee at their November 13, 2014 meeting. At that Committee meeting six semi-annual legislative strategic initiatives were identified to be of the utmost importance. Those six semi-annual legislative strategic initiatives are listed below under the “Top Six Spring 2015 Semi-Annual Legislative Strategic Initiatives” heading in order of importance, as voted on by the Committee. They are also listed under their corresponding subject area heading. Top Six Spring 2015 Semi-Annual Legislative Strategic Initiatives 1. Advocate for Proposition 13 reform as it relates to ownership transfers of commercial properties; 2. Advocate for policies that promote the long-term stability of CalPERS; 3. Obtain grant funding for public safety, affordable housing, recycled water, homelessness issues, and/or infrastructure; 4. As the issue unfolds, track closely any proposed changes to expanding the sales tax base (such as leisure services) and the possible correlated reductions in the sales tax rate; 5. Advocate for Association of Bay Area Governments (ABAG) housing mandate reform via a revised formula for housing allocations; 6. Advocate for environmental initiatives that promote the use of alternative energy sources. Environmental Advocate for environmental initiatives that promote the use of alternative energy sources; Advocate for National Electric Code reform that facilitates an increase in the installation of Electric Vehicle Supply Equipment; Advocate for conservation pricing for refuse; Advocate for a ban on the disposal of “flushable” wipes into the sewer system; Advocate that drug manufactures to manage and fund a collection program for pharmaceutical waste; Advocate for a requirement that cigarettes sold in California are manufactured with biodegradable butts; Advocate for a ban on the use of any Styrofoam food containers and packaging materials; Reduce the approval requirement from two-thirds to 50% +1 of voting property owners to pay for improvements necessary for cities to come into compliance with new State and Federal storm drain requirements. Financial (Revenue & Grants) Advocate for Proposition 13 reform as it relates to ownership transfers of commercial properties; Advocate for policies that promote the long-term stability of CalPERS; Obtain grant funding for public safety, affordable housing, recycled water, homelessness issues, and/or infrastructure; As the issue unfolds, track closely any proposed changes to expanding the sales tax base (such as leisure services) and the possible correlated reductions in the sales tax rate; Advocate for State Department of Health Care Services reimbursement reform that would provide additional supplemental reimbursements to service providers for the cost of paramedic services to Medicare and Medi-Cal patients at a rate of payment equal to the cost of service; Seek funding that would provide improvements to the Palo Alto Airport. Housing Advocate for Association of Bay Area Governments (ABAG) housing mandate reform via a revised formula for housing allocations. Local Control Advocate for the rights of municipalities to provide internet, and internet-related, utility services. Regulatory Advocate for San Francisquito Creek improvements via regulatory relief and oversight reform. Technology Advocate for “net neutrality” and related policy areas that ensure that all legal internet activity is treated equally both in theory and practically. Transportation Oppose the California High Speed Rail project. Last updated: December 1, 2014 POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES Item 2 2. Review and Recommendation to Council for Approval of the Draft Legislative Program Manual and Draft Semi-Annual Legislative Strategic Initiatives Richard Hackmann, Management Analyst, stated Staff was returning with an update on the material from the October 14, 2014 Policy & Services Committee (Committee) meeting. During the prior meeting the Committee members had made recommended changes to the Draft Legislative Program Manual and Draft Semi-Annual Legislative Strategic Initiatives document. Staff had reached out to the Executive Leadership Team members to update the Draft Semi-Annual Legislative Strategic Initiatives document and presented to you was a more detailed version of initiatives. Staff was requesting input and approval on both documents from the Committee members and a recommendation to Council. James Keene, City Manager, recommended Committee members review the Draft Spring 2015 Semi-Annual Legislative Strategic Initiatives document and noted it was reflective of the collective thoughts of the Executive Leadership Team’s thoughts on important policy perspectives to be considered by Council. Staff wanted to explore legislative action items although understood there could not be an overabundance of bills from one City. The recommendation desired from the Committee to Council would be for one or two important items that mattered the most to be accomplish for the City and community. Chair Price asked if Staff was requesting the discussion of sorting out the initiatives begin at the Committee level. She noted the list presented was unweighted and not organized by category. Mr. Keene allowed the Committee to determine whether they wished to begin the process of selecting their priorities prior to making a recommendation to Council. The legislative season was quickly approaching POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES Item 2 and usually the due date for submitting items was set in the third week of January. Herb Borock suggested when the list went before the Council it should be noted who recommended the item; whether by Staff or the Committee. He believed the listing order should be 1) City priority, 2) Committee proposed, and 3) Staff recommendation. Council Member Klein recommended combining items 3: Protect and increase local government discretion, balancing that with City values. Ensure that legislative or Constitutional reforms align with the City’s values and maintain and/or enhance local discretion; and 4: Ensure that legislation, policies and budgets retain or increase, but generally did not decrease, the amount of local discretion held by the City and protect local decision making. Oppose legislation, policies and budgets that reduce the authority and/or ability of local government to determine how best to effectively operate local programs, services and activities. The City retains the right to exceed State goals, standards or targets. His suggestion was to drop item 3 and note it was covered in item 4. He also recommended striking through the first and last sentence in item 4: Ensure that legislation, policies and budgets retain or increase, but generally did not decrease, the amount of local discretion held by the City and protect local decision making. Oppose legislation, policies and budgets that reduce the authority and/or ability of local government to determine how best to effectively operate local programs, services and activities. The City retains the right to exceed State goals, standards or targets. Mr. Keene clarified the recommendation was to combine items 3 and 4 strike the first sentence beginning with ‘Ensure that Legislative’ and strike the last sentence beginning with ‘The City retains’. Portion omitted due to audio technical difficulties. POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES Item 2 Council Member Schmid asked where the reference was for the asterisk under the “process” section of Legislative Advocacy. Mr. Hackmann clarified there was no reference; the asterisk was a Staff note. The asterisk could be removed and the note left for informational purposes. Council Member Schmid recommended removal of the asterisk for clarity of information. MOTION: Council Member Klein moved, seconded by Council Member Schmid that the Policy and Services Committee accept the draft Legislative Program Manual with the following changes; 1) combine points 3 and 4 with a strike through of the first and last sentence in number 4 and 2) remove the asterisk under Legislative Advocacy after the last item in the Process section. MOTION PASSED: 3-0 Scharff absent Council Member Schmid stated there were 18 items to select from and he suggested the Committee voted to prioritize the list prior to Council review. His recommendation was for each Committee Member to vote for their top six priorities to narrow the list. Council Member Klein agreed to reduce the list in the manner suggested. Mr. Keene stated there would be two stages to the process. The first would be the removal of any items simply not agreeable to the Committee and the second would be how to prioritize the remaining items. The probability of Palo Alto writing a letter of support for a legislative item on the list proposed by someone else would keep the City involved without placing all of the items under their legislative request. Council Member Schmid felt maintaining all of the items on the list was beneficial because each of them came from a need or desire of Staff. POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES Item 2 He believed the legislative analyst would inform the Council or Staff when an item on the list was upcoming so they could weigh in. Mr. Keene noted the Committee had the ability to inject an item to the list if they felt the need. Chair Price asked if there was a history of the number of priorities allotted each Council Member. Council Member Klein stated yes, there were three with the ability to add more with a rationale. Council Member Schmid listed his top 6 priorities; 1) Advocate for Proposition 13 reform as it relates to ownership transfers of commercial properties, 2) As the issue unfolds, track closely any proposed changes to expanding the sales tax base (such as leisure services) and the possible correlated reductions in the sales tax rate, 3) Advocate for policies that promote the long-term stability of CalPERS, 4) Advocate for conservation pricing for refuse, 5) Obtain grant funding for public safety, affordable housing, recycled water, and homelessness issues and/or infrastructure, and 6) Oppose the California High Speed Rail project. Council Member Klein listed his top 6 priorities; 1) Advocate for Association of Bay Area Governments (ABAG) housing mandate reform via a revised formula for housing allocations, 2) Advocate for policies that promote the long-term stability of CalPERS, 3) Seek funding that would provide improvements to the Palo Alto Airport, 4) Advocate for Proposition 13 reform as it relates to ownership transfers of commercial properties, 5) Oppose the California High Speed Rail project, and 6) Advocate for environmental initiatives that promote the use of alternative energy sources. Chair Price listed his top 6 priorities; 1) Obtain grant funding for public safety, affordable housing, recycled water, and homelessness issues and/or infrastructure, 2) Advocate for Proposition 13 reform as it relates to ownership transfers of commercial properties, 3) Advocate for environmental initiatives that promote the use of alternative POLICY AND SERVICES COMMITTEE DRAFT EXCERPT MINUTES Item 2 energy sources, 4) Advocate for policies that promote the long-term stability of CalPERS, 5) As the issue unfolds, track closely any proposed changes to expanding the sales tax base (such as leisure services) and the possible correlated reductions in the sales tax rate, and 6) Advocate for “net neutrality” and related policy areas that ensure that all legal internet activity is treated equally both in theory and practically. Mr. Keene calculated the score for each of the six priorities and clarified the results as the following order: 1) Advocate for Proposition 13 reform as it relates to ownership transfers of commercial properties, 2) Advocate for policies that promote the long-term stability of CalPERS, 3) Obtain grant funding for public safety, affordable housing, recycled water, and homelessness issues and/or infrastructure, 4) As the issue unfolds, track closely any proposed changes to expanding the sales tax base (such as leisure services) and the possible correlated reductions in the sales tax rate, 5) Advocate for Association of Bay Area Governments (ABAG) housing mandate reform via a revised formula for housing allocations, and 6) Advocate for environmental initiatives that promote the use of alternative energy sources. Chair Price agreed to the order captured. No Action Taken